David Lu

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 applicant condominium corporation sought an order to compel the respondent unit owner to allow the removal and replacement of unauthorized garage and front doors, which were modifications to common elements.

The respondent claimed verbal approval for the modifications and cross-claimed for oppression under section 135 of the Condominium Act.

The court found that the respondent had not obtained proper written approval for the modifications and dismissed the oppression claim, distinguishing the facts from a prior case where oppression was found.

The application was granted, ordering the respondent to provide access for the corporation to replace the doors, with the corporation bearing the cost of the new doors.

The condominium corporation brought a motion to strike the defendant's statement of defence and counterclaim due to the defendant's persistent non-compliance with court-ordered timetables for examinations for discovery.

The defendant, who was self-represented, failed to provide available dates for discovery, did not attend a unilaterally scheduled examination, and raised concerns about documentary discovery outside of proper procedural channels.

The court found the defendant's conduct to be intentional and contumelious, granting the motion to strike the defence and dismiss the counterclaim.

Following a trial where the plaintiff Condominium Corporation was substantially successful in collecting common expense arrears, the court determined the quantum and scale of costs.

The plaintiff sought $58,448.97, while the defendants proposed $32,000.

Applying section 85(1) of the Condominium Act, 1998 and considering the plaintiff's unaccepted Rule 49 offer to settle, the court awarded the plaintiff costs on a substantial indemnity basis, fixed at $50,000 inclusive of HST and disbursements, to be added to the liens registered on the defendants' unit.

The plaintiff condominium corporation brought a summary trial to determine the amounts owing under two liens registered against the defendants' unit for unpaid common expenses, charge-backs, and legal costs.

The defendants, who had a long history of conflict with the condominium board, disputed the charges and the validity of the liens.

The court found the liens were validly registered and upheld the common expense arrears and charge-backs.

However, the court disallowed the plaintiff's claim for compliance legal costs because the plaintiff had failed to attempt mediation as required by the Condominium Act.

The court fixed the total amount secured by the liens at $117,287, which included a 25% reduction in the legal fees claimed for the lien enforcement proceeding.

The appellants, condominium owners, appealed a permanent injunction issued by the Superior Court of Justice.

The injunction restricted the male appellant's communication and conduct due to a long-standing pattern of harassment, rude behavior, and interference with the condominium corporation's board and employees, in violation of the Condominium Act.

The Court of Appeal dismissed the appeal, affirming the application judge's jurisdiction, the appropriateness of the injunction under s. 134(3) of the Condominium Act, and the fairness of the proceedings despite the denial of an adjournment and the appellant's failure to file a proper affidavit.

Following a successful application for a compliance order against the respondent unit owners for noise, harassment, and by-law breaches, the applicant condominium corporation sought full indemnity costs.

The court awarded the applicant its full costs of $17,645.67 pursuant to section 134(5) of the Condominium Act and the corporation's declaration, finding that innocent unit owners should not bear the expense of enforcing compliance.

The applicant condominium corporation sought an urgent order requiring the respondent unit owners to cease and desist from conduct contravening the Condominium Act, the corporation's rules, and a municipal mask by-law.

The respondents were found to have created excessive noise, engaged in aggressive and harassing behaviour towards residents and staff, failed to wear masks on common elements, and improperly parked vehicles.

The court granted a compliance order and declared the respondents in breach of sections 117 and 119 of the Condominium Act, with leave for the corporation to seek a forced sale of the units if future breaches occur.

The Ottawa Carleton Standard Condominium Corporation No. 671 brought a motion seeking declarations that Mr. Friend's conduct constituted workplace harassment under the Occupational Health and Safety Act and a breach of section 117 of the Condominium Act, an order for him to cease such conduct, and an interlocutory injunction restricting his communication with condominium personnel and residents.

The court found Mr. Friend's conduct, including physical assaults, verbal abuse, and persistent defiance of Board decisions and rules, to be unacceptable and a serious legal issue.

The motion was granted, and an interlocutory injunction was issued, along with an award of full indemnity costs against the defendants.