Christy J. Allen

The self-represented applicant, a former director of the condominium corporation, applied for the appointment of an administrator or inspector, and sought declarations of oppression and breach of the directors' standard of care.

The applicant alleged that a shared facilities agreement with a developer's subsidiary was unfair and that the board mismanaged expenses and reserve fund calculations.

The court dismissed the application, finding no evidence that the board was unable to manage the condominium's affairs or that its conduct was oppressive.

The court emphasized that appointing an administrator is a remedy of last resort.

The respondents brought a motion under Rule 1.08(8) seeking an order that cross-examinations on affidavits proceed in person rather than virtually, citing a history of surreptitious recording by the self-represented applicant.

The court found that the respondents failed to establish sufficient justification to depart from the originally agreed-upon virtual format.

Applying the factors in Rule 1.08(6) and principles from the case law, the court ordered that cross-examinations proceed virtually, with additional protective orders prohibiting any recording or publication of the transcripts by the parties.

The timetable was amended accordingly, while the hearing date remained unchanged.

The decision addresses two motions in a commercial real estate dispute: a motion to strike claims against individual condominium directors, and a motion for production of documents.

The court struck the claims against the directors but granted the plaintiff leave to amend, finding the pleadings did not sufficiently distinguish the directors’ conduct from that of the corporation.

The court also dismissed the plaintiff’s production motion, holding that privilege over communications with counsel and the property manager was not waived by the addition of the property manager as a third party.

The ruling clarifies the high threshold for personal liability of condominium directors and the scope of privilege in multi-party litigation.

Two neighbouring condominium corporations, Ottawa-Carleton Condominium Corporation No. 574 (574) and Ottawa-Carleton Condominium Corporation No. 573 (573), brought cross-applications to determine their legal and financial obligations regarding a shared timber retaining wall requiring replacement. 574 sought a declaration that 573 was responsible for 40% of costs, proportional to the wall's presence on their property. 573 claimed the wall encroached on its property and sought its relocation or a significantly reduced cost contribution (8.11%).

The court dismissed 573's encroachment claim, finding the Site Plan Agreement did not create enforceable obligations between successors in title and that 573 was bound by the original developer's decisions.

The court determined that the wall was a common element benefiting both properties and that 573 was statutorily obligated to contribute to its maintenance.

The court ordered a 60/40 cost split, with 574 paying 60% and 573 paying 40%, based on the proportion of the wall on each property, rejecting 573's arguments for a lower contribution based on hypothetical original plans or perceived benefit.

Substantial indemnity costs were awarded to 574 due to 573's unreasonable refusal of settlement offers and the resulting disproportionately high legal costs.

The respondent was entirely successful in defending an injunction motion and sought costs on a substantial indemnity basis.

The applicants argued that costs should be deferred to the judge hearing the balance of the application.

The court declined to defer costs, noting the uncertainty of the application proceeding.

While the court found the applicants' conduct did not warrant substantial indemnity costs, it noted their improper conduct in splitting their case and unnecessarily complicating the motion.

The court awarded the respondent costs fixed at $60,000 inclusive of HST and disbursements.

The applicants, who were the developer and manager of the respondent condominium corporation, sought an interlocutory or permanent injunction to restrain the respondent from evicting them from a Visitor Centre they leased.

The respondent had terminated the management agreements and the lease following a breakdown in the relationship.

The court dismissed the motion, finding that while there was a serious issue to be tried regarding the termination of the agreements, the applicants failed to establish irreparable harm and the balance of convenience strongly favoured the respondent, which needed the Visitor Centre to manage the property.

The appellants appealed a decision of the Superior Court of Justice dismissing their application and sought leave to appeal a costs order.

The Court of Appeal found that the application judge correctly identified and applied the applicable legal principles, and that section 6.2 of the Shared Property Agreement was enforceable.

The court upheld the costs order, finding that the respondents were entitled to indemnification of legal costs from the Common Fund under sections 3.7 and 11 of the Shared Property Agreement.

The appeal was dismissed and leave to appeal the costs order was refused.

The respondents were awarded costs on a substantial indemnity basis to be assessed.

The appellants appealed a Review Order of the Fire Marshal upholding an inspection order that required a fire safety plan and supervisory staff for alleged care occupancy suites in a condominium.

Following case conferences, the parties resolved the dispute on consent.

The Commission amended the Review Order to rescind the disputed items and confirmed compliance with the remaining item.

The appellant condominium corporation appealed a decision by Tarion Warranty Corporation denying warranty coverage for several common element defects in a 14-storey building constructed by Claridge Homes.

The Tribunal found that the claims regarding cold walls, lack of window drawing details, and air leakage were not warranted.

However, the Tribunal found that excess condensation on windows and patio doors caused by substandard insulation, and deficient insulation of the dual-temperature pipe system, were breaches of the statutory warranty.

The Tribunal awarded $166,000 plus HST for the window insulation repairs and $906,285 plus HST for the pipe insulation repairs, to be paid from the guarantee fund.

The Tribunal also held that the appellant's delay in bringing the claim did not bar recovery.

This decision addresses a costs motion following an application where the applicants unsuccessfully challenged the validity and enforceability of a co-tenancy agreement clause.

The co-tenancy committee members, who were respondents in the original application, sought substantial indemnity costs.

The court found that contractual indemnification clauses in the co-tenancy agreement entitled the committee to substantial indemnity costs.

The court awarded $90,000 in substantial indemnity costs against the applicants, inclusive of disbursements and HST, but declined to award costs against other self-represented respondents who did not actively participate in the application.

The applicants, owners of a townhouse in a building scheme, sought to discharge a restrictive covenant (s. 6.2 of a co-tenancy agreement) under s. 61(1) of the Conveyancing and Law of Property Act.

The covenant prohibited exterior alterations without co-tenancy committee approval.

The applicants argued the provision was spent, ambiguous, or obsolete.

The court dismissed the application, finding that the covenant was not spent and had continuing practical value for maintaining the community's architectural integrity.

It was not ambiguous when interpreted within the context of a building scheme's community of interests, and minor inconsistencies in its application did not constitute inherent ambiguity.

Furthermore, previous alleged violations had not rendered the provision obsolete as they had not eroded the overall character of the community.

The applicant, who has mental health disabilities and uses a service dog, filed an application alleging discrimination in accommodation.

He requested an interim remedy to exempt him from the respondent condominium's rule requiring animals to be in a carrier in common areas, arguing it interfered with his need for immediate access to his service dog.

The Tribunal denied the request, finding that the applicant had not met the significant onus for an interim remedy, as the medical evidence was speculative and the balance of harm did not favour granting the request.

The Tribunal noted that any fines levied could be compensated if a Code violation is ultimately found.

The respondent unit owner sought to convert its monthly commercial parking spots into an hourly operation, requiring changes to the condominium's common elements.

The condominium board refused to approve the changes unless the respondent hired a full-time security guard due to safety concerns.

The application judge found the board's condition unfairly disregarded the respondent's interests under s. 135 of the Condominium Act, 1998.

The Court of Appeal allowed the appeal, holding that the application judge improperly relied on untested evidence and failed to accord deference to the board.

Applying the business judgment rule, the Court found the board acted honestly, in good faith, and its decision to prioritize security over the respondent's economic interests was within a range of reasonable choices.

The applicant, 3716724 Canada Inc., sought substantial indemnity costs against Carleton Condominium Corporation No. 375 following a successful application where the court found the respondent had unfairly disregarded the applicant's interests.

The applicant also sought costs thrown away from an adjourned hearing.

The court awarded the applicant $35,500 plus HST and disbursements, declining full substantial indemnity due to the applicant raising additional unsuccessful issues, but granting increased costs due to the respondent's unreasonable insistence on a full-time security guard despite sufficient alternative proposals.

Following a finding that the respondent condominium corporation unfairly disregarded the applicant's interests by requiring a full-time security guard for a pay-and-display parking lot, the court determined the appropriate remedy.

The court held it had authority under s. 135(3) of the Condominium Act to permit the applicant to make the proposed changes to the common elements without requiring a vote by the unit owners under s. 97(4).

The court found a vote would place owners in a conflict of interest given the applicant's outstanding damages claim.

The court also ordered the respondent to turn on and maintain existing lighting in the parking garage.

Following an application concerning enforcement of a condominium declaration restricting units to single family residence use, the court determined the issue of costs.

The applicants had been largely successful on the underlying application, obtaining findings that the condominium corporation was obligated to enforce its declaration and that certain grandfathering provisions in a proposed rule were unreasonable.

The court held that litigation was necessary to compel compliance with the declaration and that the applicants achieved the substantive relief sought.

Considering the factors under rule 57.01 of the Rules of Civil Procedure, including settlement offers and litigation conduct, the court awarded costs jointly and severally against the corporation and a director who had breached his statutory duties.

A condominium corporation brought an application under s. 134 of the Condominium Act, 1998 seeking a compliance order against a unit owner who failed to maintain his unit and refused to prepare it for pest control treatment despite a bed bug infestation and excessive clutter creating health and safety concerns.

The court found the owner breached multiple statutory obligations under the Act and the condominium declaration, including duties to maintain the unit and to avoid dangerous conditions likely to cause damage or injury.

The court ordered the owner to prepare the unit for pest control treatment and authorized the corporation to enter the unit and carry out preparation and treatment if the owner failed to comply within 30 days.

Costs and remediation expenses were ordered recoverable as common expenses payable by the owner.

The applicants, unit owners at Carleton Condominium Corporation No. 111, sought a declaration that a proposed rule defining 'single family residence' and its grandfathering provisions were unreasonable and inconsistent with the condominium's declaration.

They also sought an oppression remedy against the board and a declaration that the board president breached his duties as a director.

The court found the ten-year grandfathering provision for existing owners to be unreasonable and inconsistent with the declaration, invalidating the rule.

The court dismissed the oppression claim against the board but found that the board president breached his standard of care as a director by actively undermining the board's efforts to enforce the declaration and acting in bad faith.

The applicants sought leave to appeal an arbitral award upholding a co-tenancy committee’s authority to require removal or relocation of a ground-level air conditioning unit installed without approval.

The court held that the arbitrator’s interpretation of the co-tenancy agreement and assessment of whether the alteration was minor or cosmetic involved mixed questions of fact and law, not an appealable question of law under s. 45 of the Arbitration Act, 1991.

The court further held that any reliance on condominium jurisprudence did not establish an extricable legal error and that the arbitral decision was reasonable on the record.

Leave to appeal was refused.

The appellants appealed an order finding that amendments to a condominium declaration merely clarified existing rights rather than altering substantive rights.

The application judge found that the amendments removed inconsistencies constituting ambiguities regarding repair obligations, reflecting a 34-year history of agreement between the condominium corporation and unit owners.

The Court of Appeal held that this finding was open to the application judge and dismissed the appeal.