Carol A. Dirks

This is a construction lien action and counterclaim arising from a fixed-price drywall contract.

The plaintiffs, Nikom Construction Inc. (contractor) and Invoice Payment System Corporation (factoring company), sued for unpaid invoices.

The defendant, The Block Inc. (owner), counterclaimed for damages due to alleged contract breaches, deficiencies, and abandonment by Nikom.

The court found that Nikom repudiated the contract by failing to provide adequate manpower and supervision, and by having significant deficiencies, rather than The Block repudiating by late payments.

The court also ruled that the "indoor management rule" did not bind The Block to unauthorized invoice approvals.

Consequently, the plaintiffs' action was dismissed, their liens discharged, and The Block's counterclaim for costs to complete and correct Nikom's work was granted in part, with the plaintiffs ordered to pay $325,824.41 plus pre-judgment interest.

The Applicants, purchasers of a condominium unit, sought a declaration that they validly terminated their Agreement of Purchase and Sale and were entitled to the return of their $54,449.90 deposit.

They argued termination based on a clause in the Occupancy License, the vendor's failure to invoke a statutory provision, or entitlement to relief from forfeiture.

The court found that the termination clause required mutual consent, which was not obtained.

It also determined that the vendor was not obligated to invoke the statutory provision and, in any event, could not have done so.

While acknowledging the deposit was disproportionate to the vendor's damages given the property's resale at a significant profit, the court denied relief from forfeiture, finding no unconscionability due to the parties' sophistication, legal advice, and the purchasers' clear intent not to close the transaction.

The Applicants' request was dismissed.

The applicant condominium corporation brought a motion to find the self-represented respondent in civil contempt for breaching a prior court order that prohibited him from communicating with representatives of the corporation and posting notices on common elements.

The court found that the applicant proved beyond a reasonable doubt that the respondent intentionally violated the clear and unequivocal terms of the order.

However, the court exercised its discretion to decline making a formal finding of contempt, noting that the prior order had been superseded by a new order and the respondent promised to comply moving forward.

The court stayed seized of the matter and invited costs submissions.

The applicant condominium corporation brought a motion for compliance and contempt against a unit occupant and his parents (the unit owners) for a persistent campaign of harassing, defamatory, and discriminatory communications directed at the board, property manager, and other residents.

The court found the occupant violated s. 117 of the Condominium Act and ordered him prohibited from the property and from communicating with the corporation's representatives.

The court also found the parents failed to take reasonable steps to prevent the misconduct under s. 119(2) and ordered them jointly and severally liable for damages and costs on a full indemnity basis, collectible as a common expense.

This is an appeal from an order dismissing a motion to stay an application in favour of arbitration.

The dispute concerns a cost-sharing agreement between condominium corporations regarding common expenses.

The motion judge found the essence of the claim was oppressive conduct, which he believed was not arbitrable.

The Court of Appeal reversed, holding that the core dispute was the interpretation and application of the reciprocal agreement, which contained a broad arbitration clause.

Citing recent Supreme Court of Canada jurisprudence, the Court emphasized that courts should not refuse to stay claims covered by a valid arbitration agreement and that oppression claims under the Condominium Act, 1998, are not exclusively for the Superior Court and can be arbitrated.

The appeal was allowed, and the application was stayed as it related to the issues between the two main condominium corporations.

The plaintiff sought costs following the dismissal of her motion for a mandatory interlocutory injunction against the defendant condominium corporation.

The motion was dismissed based on the defendant's undertaking to provide alternative accommodation.

The court found that although the defendant was technically the successful party, the plaintiff was entitled to costs because it was reasonable for her to seek court intervention and the dismissal was on terms.

The court awarded the plaintiff $25,000 in costs.

The plaintiff unit owner brought a motion for a mandatory interlocutory injunction against the defendant condominium corporation, seeking orders for expert opinions, alternative accommodation, and repairs to her unit following water damage and mould contamination originating from the common elements.

The court dismissed the motion, finding that the plaintiff failed to meet the high threshold of a strong prima facie case or demonstrate irreparable harm, particularly given the condominium corporation's undertaking to pay $100 per day for alternative accommodation and to repair the unit.

The plaintiff condominium corporation brought a motion to pay $57,264.20 into court, representing surplus funds from the power of sale of a condominium unit previously owned by the deceased defendant.

Two individuals claiming an interest in the defendant's estate appeared on the motion.

The court granted the order to pay the funds into court without prejudice to any future disputes over the amount, including deducted legal fees, and ordered the plaintiff to provide copies of legal accounts to the interested parties.

No costs were awarded for the motion.

The applicant, a condominium unit owner, brought a motion seeking a declaration that a new rule (Rule 19) enacted by the respondent condominium corporation's board of directors was invalid.

Rule 19 prohibited short-term leasing (less than six months) and deemed any person involved in such use a trespasser.

The applicant argued that Rule 19 was inconsistent with Article 4.9(e) of the condominium's declaration, which stated that no provision should limit an owner from leasing their unit for "any period of time whatsoever." The applicant also contended that paragraph 7 of Rule 19, deeming occupants trespassers, was inconsistent with the Condominium Act.

The court found that the board's interpretation of the declaration, which did not expressly permit short-term leasing, was unreasonable given the clear wording of Article 4.9(e).

Consequently, Rule 19 was declared invalid for being inconsistent with the declaration by prohibiting short-term leasing and imposing a minimum lease term.

Paragraph 7 was also found inconsistent with the Condominium Act, as owners cannot be deemed trespassers.

On appeal from a Superior Court order granting relief under section 135 of the Condominium Act, the Court of Appeal considered whether the application judge erred in granting discretionary relief based on facts that changed after the hearing.

The respondent had sought relief based on a pending sale of two condominium units for the purpose of operating an Indian and Mughlai restaurant.

Fresh evidence disclosed that the sale did not proceed and the units were subsequently leased to other tenants.

The Court of Appeal found that the equitable relief granted would provide no practical benefit and set aside portions of the order.

The Court also addressed issues regarding the production of records showing exclusive business uses and the assessment of damages.

The applicant unit owner brought an application against the condominium corporation for breach of its duty to maintain and repair common elements and for oppressive conduct, stemming from a long-standing mould problem in her unit.

The condominium corporation brought a competing application, alleging the unit owner breached her duty to maintain her unit due to lifestyle choices.

The court admitted fresh evidence regarding water leakage and insulation issues.

The court found that the mould was primarily caused by building design issues related to common elements, not the unit owner's lifestyle.

While the condominium corporation eventually remediated the mould, its overall response was deemed unreasonably delayed and not timely enough, thus breaching its duty to repair and maintain common elements under the Condominium Act.

However, the court dismissed the oppression claim, finding that the corporation's conduct, though delayed, did not amount to oppression, unfair prejudice, or unfair disregard of the unit owner's interests.

The unit owner's application was allowed to the extent that the condominium corporation was ordered to pay for the remediation costs, subject to the unit owner's proportionate share of common expenses.

Following a successful application by a condominium corporation to enforce its declaration against an offending unit owner and its tenants, the court determined the appropriate scale and quantum of costs.

The court awarded the applicant full indemnity costs of $24,771.93, noting that section 134(5) of the Condominium Act and the condominium's declaration contemplate full recovery of enforcement costs to protect innocent unit owners.

A supporting respondent, who gathered evidence of the breach to protect his exclusive use rights, was awarded partial indemnity costs of $15,000 against the offending respondents.

2214416 Ontario Inc. (221), a unit owner in a commercial condominium plaza, sought to sell its units for the operation of an Indian restaurant, an exclusive business use under the condominium's Declaration.

The condominium corporation (PSCC 937) refused permission, citing existing exclusive uses by other unit owners. 221 alleged that PSCC 937 failed to produce records of exclusive uses and acted oppressively by denying its request and by relying on a Declaration article that purported to absolve the corporation of enforcement duties.

The court found that the dispute primarily concerned compliance with the Condominium Act, thus granting jurisdiction.

It declared Article 2.01(i) of the Declaration inconsistent with the Act and therefore amended.

The court further found PSCC 937's refusal to produce records and permit the proposed business use to be oppressive and unfairly prejudicial to 221, ordering PSCC 937 to produce the records and permit the exclusive business use.

Damages for the breach of the Act were adjourned for assessment.

Toronto Standard Condominium Corporation No. 1633 (TSCC 1633) applied for a declaration that Toronto Standard Condominium Corporation No. 1809 (TSCC 1809) was responsible for sharing the costs of operating, maintaining, repairing, and replacing a shared laneway.

TSCC 1633 advanced claims based on unjust enrichment, a common law obligation for easement maintenance, and the oppression remedy under section 135 of the Condominium Act, 1998.

The court dismissed the application, finding no common law obligation for the dominant tenement owner to maintain an easement for the benefit of the servient tenement.

It further held that the grant of the easement itself constituted a juristic reason, precluding a claim for unjust enrichment.

Regarding the oppression remedy, the court concluded that TSCC 1633's expectation of cost-sharing was not objectively reasonable, as the condominium declarations and disclosure statements did not provide for such an agreement, aligning with the principles established in Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation.

The plaintiff brought an urgent motion for injunctive relief to require the defendants to reconnect electricity to a cottage on the plaintiff's property.

The parties reached a consent order at a case conference, leaving the issue of costs to be determined by the court.

The plaintiff sought costs on a substantial indemnity basis of $39,372.40, while the defendants argued for no costs or a maximum of $5,645.13.

The court found the motion was reasonably brought but the matter was not complicated and the costs sought were excessive.

Costs were fixed at $9,995.00 all-inclusive payable by the defendants.

The appellant, N.K.P. Painting Inc., successfully appealed a Small Claims Court decision, resulting in a judgment of $23,893.74 plus prejudgment interest.

This ruling addresses the costs of both the original trial and the appeal.

The court upheld the Deputy Judge's cost award for the trial but reversed the party in whose favour it was made.

For the appeal, considering the factors under Rule 57.01 and the principles from Boucher, the court fixed costs at $2,500.00 plus HST for fees and $1,071.69 for disbursements.

The appellant, a painting subcontractor, appealed a Small Claims Court decision dismissing its unjust enrichment claim against a condominium corporation.

The subcontractor had not been paid by the bankrupt general contractor and had not registered a construction lien.

The Superior Court of Justice found that the trial judge erred by concluding that a contract between the owner and general contractor constituted a juristic reason to deny recovery to the subcontractor.

The appellate court clarified that a contract only serves as a juristic reason if the claimant is a party to it.

It found that the condominium corporation was unjustly enriched by retaining the statutory holdback funds after receiving the full benefit of the work without full payment, and that denying recovery would result in a windfall.

The appeal was allowed, and judgment was entered for the appellant for the amount of the holdback.

The applicant, a condominium unit owner, sought a declaration that the respondent condominium corporation breached its maintenance and repair obligations under the Condominium Act, 1998, and that its conduct was oppressive.

The unit had suffered water damage and mould, rendering it uninhabitable.

The court found the corporation breached its repair obligations due to an unreasonable delay in addressing a long-standing water penetration problem.

However, the court dismissed the oppression remedy claim, finding the corporation's conduct ineffective but not oppressive.

The applicant was awarded damages for common area expenses, realty taxes, medical travel expenses, legal expenses, and general damages for interior repairs, but not for mental distress or special assessments.

The applicant condominium corporation sought a compliance order against a unit owner who carried out extensive, unauthorized renovations that altered the common elements.

The respondent argued the application was barred because the applicant failed to mediate or arbitrate the dispute first.

The court held that mediation is not required for disputes regarding initial compliance with section 98 of the Condominium Act.

The court granted the compliance order, allowing the applicant to inspect the unit and restore the common elements, but found insufficient evidence to order a full repair of the unit under section 92.

Following a consent order terminating a residential lease and enforcing compliance with condominium rules regarding smoking, the court determined the costs of the application.

The condominium corporation sought costs against both the unit owner and the tenants.

The court found that the unit owner had taken all reasonable steps to ensure tenant compliance under s. 119(2) of the Condominium Act, 1998, and ordered no costs between the corporation and the owner.

The tenants, who caused the smoking complaints, were ordered to pay $10,000 in partial indemnity costs to both the condominium corporation and the unit owner.