David Plotkin

This is a costs endorsement following successful motions by the State of California and the Attorney General of Quebec to dismiss claims brought against them by W.O. Stinson & Son Limited.

The court had previously dismissed Stinson's claim against California based on state immunity under the State Immunity Act and against Quebec due to Crown immunity.

Stinson argued for no costs, citing unfair treatment due to the cancellation of Ontario's cap-and-trade program and alleged profit by California and Quebec from Stinson's losses.

The court rejected these arguments, finding no reason to deny costs to the successful parties.

The court then assessed the reasonableness of the requested partial indemnity costs, reducing the amounts sought by both California and Quebec, and specifically reducing Quebec's expert witness disbursement.

This motion for summary judgment concerned an oppression claim brought by a condominium unit owner against the Condominium Corporation, its property manager, and superintendent.

The owner alleged oppressive conduct stemming primarily from the Corporation's decision to charge him for remediation costs after he left eggs cooking unattended, leading to smoke damage, and subsequently registering a lien on his unit for unpaid common expenses, which ultimately resulted in the power of sale of his home.

The owner also raised ancillary claims regarding cleaning product contracts, parking, and water leaks.

The court found that the Corporation acted reasonably and within its statutory powers in remediating the damage and registering the lien.

It was determined that the owner's own negligence and unreasonable refusal to mitigate his losses were the cause of his home's sale.

The court dismissed all of the owner's claims, granting summary judgment in favour of the Corporation.

The applicant purchased a condominium unit after relying on a status certificate that stated the corporation had no knowledge of circumstances that might result in an increase in common expenses.

However, the corporation had known for years about a major water main project and was actively tendering it when the certificate was issued.

The applicant sought declarations under the Condominium Act.

The court found the disclosure inadequate and declared the applicant's unit exempt from the special assessment for as long as he owns it.

The court also found the corporation's conduct oppressive but declined to award legal fee damages.

Carleton Condominium Corporation No. 519 (CCC 519) brought an application seeking to compel Ottawa-Carleton Standard Condominium Corporation No. 656 (OCC 656) and Carleton Condominium Corporation No. 522 (CCC 522) to share the costs of replacing a critical electric switchgear (ESG) located on CCC 519's property but serving all three condominiums.

CCC 522 agreed to contribute, but OCC 656 refused, arguing its declaration did not require it and CCC 519 was responsible for its common areas.

The court applied the doctrine of unjust enrichment, finding OCC 656 had been incontrovertibly benefited and failed to establish a juristic reason for retaining the benefit without contributing.

The court rejected the argument that the absence of a cost-sharing agreement constituted a juristic reason.

The application was granted, requiring both respondents to share costs equitably, with a reference directed for cost apportionment if necessary.

The plaintiff, Mitchell Worsoff, commenced an action against a condominium corporation and its manager, alleging oppressive conduct regarding renovation requirements during the COVID-19 pandemic.

The plaintiff later discontinued the action.

Both parties moved for costs of the discontinued action.

The court found that the plaintiff did not have an objectively reasonable basis to commence the action, as the defendants' policies were reasonable and applied equally to other unit owners.

However, the court also found that the defendants failed to promptly disclose relevant renovation agreements, which prolonged the litigation.

Consequently, the plaintiff's motion for costs was dismissed, and the defendants were awarded 75% of their partial indemnity costs, fixed at $21,000.00, due to the disclosure failure.

The plaintiff served notices of examination requiring the defendants' representatives to attend examinations for discovery in person.

The defendants objected and requested that the examinations proceed by video conference.

The court held a case conference under Rule 1.08(8) to determine the method of attendance.

Applying the factors in Rule 1.08(6), the court ordered the examinations to proceed virtually, emphasizing that virtual proceedings enhance access to justice by reducing costs and increasing efficiency, and that routine discoveries do not require in-person attendance.

The applicant condominium corporation sought declarations, injunctions, and compliance orders requiring the respondent unit owners to wear masks in the common elements, alleging their refusal constituted a dangerous activity under s. 117 of the Condominium Act.

The respondents claimed medical exemptions under provincial regulations and municipal by-laws, which did not require proof of exemption.

The court balanced the competing rights, finding that while the respondents could transit through common elements for ingress and egress without a mask due to their claimed exemptions, wandering or exercising on other floors without a mask constituted a dangerous activity.

The court issued a compliance order and permanent injunction restricting the respondents' unmasked movement to direct ingress and egress.

The appellant contractor brought an action for breach of contract after the respondent condominium corporations exercised a contractual termination clause following months during which the respondents knowingly misled the appellant into believing the agreement would not be terminated.

The majority held that the duty of honest performance, as formulated in Bhasin v. Hrynew, precludes active deception and applies to the exercise of all contractual rights, including termination rights; the respondents breached that duty by failing to correct the false impression they had created, which was directly linked to performance of the contract.

A concurring minority agreed on liability but differed on the measure of damages, holding that the duty of honest performance vindicates the reliance interest rather than the expectation interest.

The dissent would have dismissed the appeal on the ground that the respondents' conduct did not materially contribute to the appellant's mistaken belief and did not constitute the active dishonesty required for a breach of the duty of honest performance.

The appeal was allowed and the trial judge's award of damages was reinstated.

The applicants sought costs of $91,250 on a partial and substantial indemnity basis following their success in a previous oppression application.

The respondent objected, proposing $44,134.20 on a partial indemnity scale.

The court reduced the applicants' claim by $7,910 for pre-litigation costs but allowed travel disbursements for Ottawa-based counsel.

The court awarded substantial indemnity costs, finding the respondent's conduct sanction-worthy due to its unreasonable and aggressive litigation tactics, including breaching its own constating documents and failing to engage in good faith mediation.

The final costs awarded to the applicants were $83,340.

Following the dismissal of the applicant unit owner's application regarding a noise complaint, the respondent condominium corporation sought full indemnity costs of $89,580.36.

The court rejected the respondent's argument that it was entitled to full indemnity costs under s. 134(5) of the Condominium Act, as the respondent was not an applicant.

However, because the applicant failed to accept a generous without-costs dismissal offer made by the respondent, the court awarded the respondent partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total costs award at $70,000.

The applicants sought to restrain the sale of their condominium unit, which the respondent corporation purported to lien under s. 85 of the Condominium Act, 1998, for compliance and enforcement expenses.

The applicants also claimed damages for oppression.

The court found the lien invalid as the expenses fell under s. 134, requiring a court order, which was absent.

The court further found the corporation acted oppressively by refusing good faith negotiation, imposing an invalid lien, and attempting to sell the unit, awarding the applicants $9,679.75 in damages.

The court also set aside the corporation's decision not to grandfather the applicants' unit under a new non-smoking rule.

The applicant unit owner sought an oppression remedy against the respondent condominium corporation, alleging it failed to repair and maintain common elements (exhaust fans) that were causing noise and vibration in her unit.

The court found that the corporation had regularly inspected and maintained the fans, and that the noise was not caused by a failure to repair.

The court also held that the corporation responded reasonably to the applicant's complaints over several years by hiring experts and replacing equipment, and therefore its conduct was not oppressive or unfairly prejudicial.