Bradley Chaplick

The applicant condominium corporation sought an order under s. 134 of the Condominium Act to invalidate the election of the respondent to the board of directors, alleging a commercial proxy for 33 votes was improperly counted as only one vote.

The court found that the commercial proxy was not present at the annual general meeting or the recount.

Furthermore, the court held that even if the proxy had been present, it would have been invalid because it lacked the required initials beside the candidate's name, contrary to the clear instructions of the meeting chairperson.

The application was dismissed.

Unit owners operating food court businesses in a commercial condominium brought an application under the Condominium Act seeking declarations, damages, and oppression remedies regarding the allocation of common expenses and enforcement of exclusive-use provisions.

The court interpreted the condominium declarations and held that waste disposal for common elements, including a food court seating area subject to exclusive use, remained a common expense payable by all unit owners.

The applicants had therefore been overcharged since 2012 and were awarded damages representing their share of improperly allocated waste disposal costs.

The court also ordered the corporation to enforce a designated-use provision protecting one applicant’s exclusive right to sell dim sum but rejected allegations of oppressive conduct by the condominium corporation.

Costs were left for further submissions.

A mortgagee applied for an order discharging a condominium lien after paying the arrears of common expenses and legal costs claimed by the condominium corporation.

Despite receiving payment, the corporation’s counsel refused to discharge the lien, asserting entitlement to additional legal fees allegedly incurred in responding to litigation initiated by the unit owners.

The court held that s. 85 of the Condominium Act only permits recovery of reasonable legal costs and expenses causally connected to collecting the arrears.

The additional fees were inadequately documented, not shown to be reasonable, and largely related to unnecessary or unrelated litigation activity after the arrears had been satisfied.

The court ordered the lien discharged, directed that the claimed expenses be assessed, and invited submissions on potential cost consequences against the law firm under Rule 57.07.

Following a consent order requiring condominium unit owners to comply with quarterly fire safety inspection obligations under the Condominium Act, the court addressed the issue of costs.

The condominium corporation sought full indemnity costs pursuant to s. 134 of the Act, arguing the respondents’ non-compliance necessitated the application.

The respondents opposed on the basis of financial hardship.

The court held that the financial burden of obtaining compliance should not fall on innocent unit owners and that the respondents’ failure created fire safety risks requiring court intervention.

Full indemnity costs of $12,000 were awarded and ordered to be added to the respondents’ common expenses under s. 134(5) of the Act.

The applicant sought declaratory relief that a writ of execution registered against him personally did not attach to lands he held in trust for a corporation.

The respondent creditor argued the trust arrangement raised triable issues and alleged the transaction was potentially a fraudulent conveyance.

The court held that the unregistered declaration of trust, created years before the writ of execution, established that the lands were held solely in trust and not beneficially by the debtor.

As an execution creditor can claim no greater interest than the debtor held, the writ could not attach to trust property or its sale proceeds.

Judgment was granted declaring the writ did not affect the lands and ordering release of funds held in trust.