Jonathan H. Fine

The plaintiff sought leave to appeal a $21,270 costs order made by a Small Claims Court Deputy Judge following a 12-day trial over a $1,500 dispute regarding condominium records.

The defendant argued the Divisional Court lacked jurisdiction because the amount in dispute was under the $2,500 threshold in section 31 of the Courts of Justice Act.

The court held that section 33 allows an appeal as to costs with leave, regardless of the amount in dispute.

However, leave to appeal was denied because the Deputy Judge properly considered the principle of proportionality and the plaintiff's unreasonable behaviour when awarding costs.

The applicant unit owner sought an oppression remedy against the respondent condominium corporation under s. 135 of the Condominium Act, alleging that the corporation failed to adequately address ongoing water leaks in her unit, committed unauthorized entries, and acted abusively.

The court found that while the corporation's communication was deficient and it committed one unlawful entry, it had fulfilled its duty to maintain and repair the common elements by conducting extensive investigations and repairs.

The court concluded that the corporation's conduct, viewed in context, was not harsh, vindictive, or oppressive.

The application was dismissed.

A condominium corporation passed a by-law to lease four common element parking spaces to each unit owner to address a parking dispute caused by a popular restaurant tenant monopolizing shared parking.

The appellant unit owner, who leased her units to the restaurant, challenged the by-law as invalid, unreasonable, and oppressive.

The application judge dismissed the application.

On appeal, the majority upheld the application judge's decision, finding the by-law valid and reasonable.

However, Justice Weiler dissented, holding the by-law invalid because it effectively created permanent exclusive use common elements without amending the declaration, and unreasonable because there was no evidence supporting an increase from two to four parking spaces per unit and no practical alternative parking existed.

Following the dismissal of the applicant's appeal from an arbitrator's ruling, the successful respondent sought costs on a full or substantial indemnity basis.

The court considered the factors under Rule 57.01, noting that the applicant's appeal was largely without merit, caused unnecessary delay, and that the respondent had made a reasonable offer to settle.

The court awarded costs to the respondent on a substantial indemnity basis, fixed at $18,008.88.

Georgian Properties Corporation (GPC) brought a motion to strike the factum of Toronto Standard Condominium Corporation No. 2051 (TSCC) in its entirety or in part, arguing that it raised issues outside the scope of the pleadings, contrary to a prior settlement agreement and court decisions.

The court found that the majority of TSCC's factum was proper, as many arguments related to the adequacy of disclosure or the exorbitant nature of mortgages, which were within the existing pleadings.

However, specific paragraphs alleging new claims, such as breach of agreements of purchase and sale or broader breaches of fiduciary duty, were struck.

The court denied GPC's request for the summary judgment motion to proceed before a different judge, citing efficiency and the judge's ability to remain impartial.

GPC's motion was deemed largely unnecessary, and GPC was ordered to pay TSCC's partial indemnity costs of $9,134.92.

The defendants requested a case conference to address their motion to strike the plaintiff's factum, filed for an upcoming summary judgment motion, arguing it contained allegations previously precluded by a prior court order.

The court, acting as Case Management Judge, declined to strike the factum or adjourn the summary judgment motion for a preliminary motion to strike.

Citing jurisprudence, the court emphasized that preliminary motions to strike documents should be discouraged and reserved for the most egregious cases, as questions of relevance and admissibility are best left to the judge hearing the main motion.

The court ordered that the defendants' motion to strike would proceed at the outset of the summary judgment motion.

The appellant appealed an arbitrator's awards concerning the use of condominium units and associated costs.

The arbitrator had found the appellant in breach of a single-family use restriction but granted a nine-month grace period for compliance, and awarded costs to the respondent.

The appellant sought to vary the compliance period and the costs award.

The court granted an extension of time for filing the appeal and leave to appeal on questions of law.

However, the court dismissed the appeal, upholding the arbitrator's findings regarding the condominium corporation's duty to enforce, the non-waiver provision, and the commercially reasonable time for compliance.

The appellant was ordered to pay the respondent's costs of the appeal.

This appeal concerns a statutory interpretation dispute regarding the priority of a condominium corporation's lien under the Condominium Act, 1998.

The appellant condominium corporation obtained a compliance order and costs award against a unit owner in February 2011.

The owner defaulted on payment of the costs in March 2011.

The corporation added the costs to common expenses in August 2011 and registered a lien certificate in December 2011.

The respondent mortgagee held a first mortgage on the unit.

The central issue was whether the corporation's lien lost priority over the mortgage because it failed to register the lien certificate within three months of the default, as required by section 85(2) of the Act.

The court held that the default triggering the three-month perfection period occurred when the owner failed to pay the costs order in March 2011, not when the owner failed to pay the claimed common expenses in September 2011.

Accordingly, the corporation's failure to register within three months caused the lien to lose priority.

York Condominium Corporation No. 201 (YCC 201) sought leave to appeal an arbitration award and to have it set aside.

The arbitration concerned disputes among three condominium corporations regarding their obligations to fund a shared recreation complex under a shared facilities agreement (SFA).

The Arbitrator had ruled that the SFA did not require audited financial statements or compliance with the Ontario Business Corporations Act (OBCA) as preconditions for monthly operating expense payments.

The court found that YCC 201's grounds for appeal raised questions of mixed fact and law, not pure questions of law, and were therefore not appealable under s. 45(1) of the Arbitration Act, 1991.

Alternatively, the Arbitrator's interpretation of the SFA was deemed reasonable.

The application to set aside the award, based on allegations of unfair treatment due to the Arbitrator's procedural rulings, was also dismissed, as the rulings merely determined the scope of an arbitration phase and did not preclude YCC 201 from raising issues later.

The moving party sought leave to appeal an interlocutory order that converted an application into an action and ordered a trial, and relied on unsworn material from a responding party.

The court denied leave to appeal, finding that the motion judge had inherent jurisdiction and discretion under the Rules of Civil Procedure to receive the unsworn material in the interests of justice, and that the decision did not raise matters of general or public importance beyond the immediate parties.

The applicant condominium corporation sought an interlocutory injunction and compliance order against a unit owner who engaged in a pattern of harassing and threatening behaviour towards condominium staff and residents.

The applicant also sought an order for a mental examination of the respondent to determine if a litigation guardian was required.

The court declined to order a mental examination, finding insufficient evidence that the respondent's mental condition was relevant to a material issue in the proceeding.

However, the court granted the interlocutory injunction, compliance order, and declaratory relief, finding that the respondent's conduct breached the Condominium Act and constituted workplace harassment.

The applicant, a condominium unit owner, challenged the validity of a by-law passed by the respondent condominium corporation that leased common element parking spaces to unit holders.

The applicant argued the by-law was ultra vires, discriminatory, unreasonable, and oppressive, as it restricted her tenant's (a popular restaurant) access to parking.

The court found the by-law valid under the Condominium Act, not discriminatory, and that the Board's actions were not oppressive, as they were a reasonable response to a parking monopolization issue caused by the applicant's tenant.

The application was dismissed.

The plaintiff condominium corporation moved to amend its statement of claim prior to the defendants' scheduled motion for summary judgment.

The defendants opposed the motion, arguing that a prior procedural agreement reached at mediation barred the amendments, that the amendments raised new causes of action past the limitation period, and that they constituted an abuse of process and caused non-compensable prejudice.

The court rejected the defendants' arguments, finding that the mediation agreement did not waive the mandatory application of Rule 26.01, the amendments merely particularized existing claims rather than raising new causes of action, and there was no evidence of bad faith or non-compensable prejudice.

Leave to amend the statement of claim was granted.

The parties brought cross-applications regarding ongoing disputes over cigar smoke migrating between condominium units and unauthorized unit modifications.

The condominium corporation sought orders to remove humidifiers installed by the unit owners and to access the unit for repairs.

The unit owners sought declarations that the corporation breached its duties to repair and maintain the common elements, and orders dictating the contents of future status certificates.

The court found the humidifier issue moot as the owners agreed to remove them.

The court dismissed the owners' claims, finding the corporation acted reasonably in relying on its engineer's recommendations for repairs, and held it lacked jurisdiction to dictate the contents of a status certificate in advance.

A common elements condominium corporation sought to recover unpaid common expenses and interest from the unit owners of a related condominium corporation.

The court held that the applicable limitation period for the debt claim was two years under the Limitations Act, and claims arising earlier were statute‑barred.

The court further found that expired condominium lien rights could not be revived by recharacterizing arrears as damages under the Condominium Act.

Because the dispute concerned accounting and reasonableness of common expenses under the declaration and by‑laws, the court held the parties were required to pursue mediation and arbitration before litigation.

Most of the claim was dismissed and the remaining issues were directed to mediation/arbitration.

The appellant condominium corporations sought a declaration that they owned a clubhouse within their development and that a mortgage granted by the respondent developer was void or subordinate to their interests.

The developer had retained legal title to the clubhouse, but the disclosure statements provided for its future conveyance to the appellants once the developer no longer owned any lands in the project.

The Court of Appeal dismissed the appeal, holding that the disclosure statements did not constitute an executory contract of purchase and sale.

Consequently, the appellants did not have an equitable interest in the clubhouse capable of registration under the Land Titles Act, and the developer was entitled to mortgage the property.

In a condominium dispute concerning cigar smoke migration, repairs, humidifiers, and status certificates, the moving party sought to strike portions of an affidavit filed in related applications.

The court reviewed the challenged passages individually and distinguished between admissible statements of perspective or belief, inadmissible argument, improper hearsay, and evidence derived from counsel-to-counsel communications.

The court held that expert opinion evidence should be introduced in proper evidentiary form by the expert and struck the paragraph exhibiting the proposed expert report without prejudice to refiling.

The result was mixed, with some words and paragraphs struck and others left for the application judge to assess for weight and relevance.

The appellant condominium corporation sought to recover common expense arrears from a defaulting unit owner.

Having failed to register a certificate of lien within the statutory three-month period, the appellant lost its priority over the respondent mortgagee.

The appellant applied under s. 134 of the Condominium Act, arguing the unpaid common expenses constituted damages that could be added to the common expenses, thereby reviving its priority lien.

The Court of Appeal dismissed the appeal, holding that classifying unpaid common expenses as damages under s. 134 is contrary to the legislative purpose, scheme, and plain language of the Act, which balances the rights of condominium corporations and mortgagees.

The applicant condominium corporation sought costs following an order requiring the respondent to vacate and sell her unit.

The applicant claimed over $117,000 on a partial indemnity scale or $125,000 on a full indemnity scale, including non-legal charges such as locksmith and security fees.

The court held that non-legal charges are not 'additional actual costs' under s. 134(5) of the Condominium Act.

The court also reduced the claimed legal hours, finding the time spent by a junior associate excessive and largely educational.

Costs were fixed at $58,000 inclusive of disbursements and HST.

A condominium corporation brought an application seeking various forms of relief against a unit owner whose alleged conduct raised safety concerns.

The court first had to determine whether the respondent was under a disability within the meaning of Rule 7 of the Rules of Civil Procedure, requiring the appointment of a litigation guardian.

Despite a prior order directing a mental capacity assessment, no assessment had been completed and the respondent failed to appear or participate in the proceedings.

Based on affidavit evidence describing erratic behaviour and non‑compliance with court orders, the court concluded that the respondent met the criteria for a party under disability.

The Public Guardian and Trustee was appointed as litigation guardian and the application was adjourned to allow time for the guardian to prepare.