E. Savas

The applicant condominium corporation sought an order compelling the respondents, unit owners, to remove alterations made to common elements without consent, in violation of sections 97 and 98 of the Condominium Act, 1998.

The respondents argued they had obtained consent or were being treated unfairly compared to other owners.

The court found that no valid consent was given for the expansion of their fenced backyard into common elements and rejected the argument of unfair treatment due to lack of evidence.

The application was granted, ordering the respondents to restore the common elements at their own expense.

The appellants sought leave to appeal an arbitration award that upheld a condominium rule prohibiting the retail sale of cannabis from their commercial units.

The appellants argued the arbitrator erred in law by finding the rule consistent with the condominium declaration and by validating certain proxies used to pass the rule.

The Superior Court of Justice dismissed the motion for leave, concluding the alleged errors were questions of mixed fact and law, not extricable questions of law as required under section 45 of the Arbitration Act.

However, the court exercised its equitable jurisdiction to grant a temporary extension for the appellants to wind down their business and dispose of perishable inventory.

The applicant unit owner sought an assessment of legal fees paid by the respondent condominium corporation and charged to her unit as common expenses following compliance proceedings.

She also sought an interlocutory injunction to prevent the enforcement of a lien on her unit and a transfer of the assessment to Toronto.

The court held that the applicant was not entitled to an assessment as of right and had to establish special circumstances.

The court found special circumstances only for the fees related to a motion for leave to appeal, ordering an assessment for those fees alone.

The motions for an injunction and venue transfer were dismissed.

A non-party insurer sought directions from the Court of Appeal regarding the timing of payment for costs orders issued by the Court of Appeal and a lower court judge.

The insurer requested that the costs be payable within thirty days of the appeal hearing date.

The Court of Appeal clarified that the costs were payable forthwith as of the date the appeal was dismissed, with no contrary order having been made.

The Court also awarded costs of the motion itself to the respondent.

An insurer sought intervenor status in an action brought by insureds against third-party defendants to pursue a subrogated claim.

The insurer had failed to commence its own subrogated claim within the applicable limitation period.

The Court of Appeal held that an insured has no contractual or statutory obligation to include an insurer's subrogated claim in its action.

The insurer's failure to pursue its own claim within the limitation period could not be cured by seeking intervenor status.

The appeal was dismissed with costs awarded to the respondents.

The defendant brought a motion seeking an order requiring the plaintiff to undergo psychological testing as part of a defence medical examination in a civil action alleging historical assaults during a domestic relationship.

The defendant argued the testing would assist a psychiatrist retained by the defence in forming an opinion and responding to the plaintiff’s psychological expert evidence.

The court held that additional defence medical examinations are discretionary and require clear and compelling evidence demonstrating necessity.

The proposed testing was characterized by the defence experts only as helpful or beneficial rather than necessary.

The court also considered the risk of creating an imbalance in expert evidence and the potential delay to the scheduled trial.

The motion for psychological testing was dismissed.

Following dismissal of both an oppression claim and counterclaim under the Business Corporations Act, the defendants sought costs relying on a Rule 49 offer to settle that exceeded the trial result.

The plaintiff argued the offer was of perpetual variation and that each party should bear their own costs.

The court rejected those submissions, finding the offer was capable of calculation at any time and constituted a substantial offer compared to the trial outcome.

Applying Rule 49.10 strictly, the court awarded the defendants partial indemnity costs from the date of the offer.

Costs were fixed at $56,473 after adjusting the hourly rate claimed for trial counsel.

The court-appointed receiver of a non-profit housing co-operative moved for approval of an agreement of purchase and sale with a non-profit corporation.

The sale would preserve the property as affordable housing but required an increase in occupancy fees to fund necessary repairs.

A competing bidder submitted a revised offer after the bid deadline, matching the financial terms and offering a one-year freeze on occupancy fees, but without a long-term commitment to affordable housing.

Applying the Soundair test and considering the special factors for co-operative housing, the court found the receiver's process was fair and the recommended offer was not improvident.

The motion to approve the sale was granted.

The appellant appealed an order dismissing his claim on the grounds of res judicata and abuse of process.

The Court of Appeal allowed the appeal, finding that the motion judge erred in dismissing the claim without having the statement of claim before him.

The motion judge had improperly relied on another judge's reasons for setting aside a default judgment as a conclusive finding.

The order was set aside and the respondents' motion to dismiss was dismissed.