Jonathan H. Fine

The applicant condominium corporations sought declarations of ownership, breach of trust, and oppression against the developer regarding a community clubhouse.

The developer had retained ownership of the clubhouse, subject to a mortgage, pending the sale of all remaining units and lands in the project, as set out in the disclosure statements.

The court dismissed the application, finding no trust relationship, no breach of the obligation to convey the clubhouse since the condition precedent had not been met, and no oppressive conduct by the developer in its management, mortgaging, or fee-charging for the clubhouse.

Costs decision following a successful condominium compliance application.

The applicant sought full indemnity costs after obtaining a ruling that another unit owner's use of a condominium unit as an accounting office contravened the declaration and that part of the declaration conflicted with the Condominium Act, 1998.

Respondents argued that the dispute involved novel issues, internal board conflicts, and that mediation had been offered but refused.

The court applied the discretion under s. 131 of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure.

Partial indemnity costs of $4,900 were awarded against two respondents jointly and severally.

Following the dismissal of an application, the successful respondents sought costs on a substantial indemnity basis after being personally named in allegations of bad faith and oppression.

The court considered Rule 57.01(1) of the Rules of Civil Procedure, including proportionality, the seriousness of personal allegations against individual directors, and an earlier settlement proposal that could have resolved the dispute.

Although the applicant had an arguable issue relating to an allegedly undisclosed liability in a condominium status certificate, the court found the litigation strategy unnecessarily complex and disproportionate to the amount at stake.

Balancing these factors, the court declined substantial indemnity but awarded substantial costs reflecting the respondents’ success and the unnecessary allegations.

Costs were fixed at $15,000 payable within 30 days.

A condominium corporation sought a declaration that a developer agreement and related by-law limiting the developer’s liability for construction deficiencies were void and ultra vires under the Condominium Act, 1998.

The impugned agreement limited claims against the developer to those available under the Ontario New Home Warranties Plan Act and had been disclosed to purchasers and registered on title.

The court held that the pre-turnover board had authority to enter into such an agreement and that limiting developer liability in this manner was not inconsistent with the Condominium Act.

The arrangement was part of the commercial framework under which the condominium project was developed and sold, and purchasers had notice of the limitation.

The application was dismissed and costs awarded to the respondent.

The applicant condominium unit owner sought declarations and compliance orders regarding restrictive use covenants in a commercial condominium declaration.

The applicant operated an accounting office and relied on a declaration provision restricting multiple units from operating the same type of business.

Another unit owner provided tax preparation and financial planning services from its unit.

The court held that these services constituted operation of an “Accounting Office” within the meaning of the declaration, thereby contravening the restrictive covenant.

The court further held that a declaration clause purporting to relieve the condominium corporation from enforcing restrictive covenants conflicted with s. 17(3) of the Condominium Act, 1998, which obligates the corporation to take reasonable steps to ensure compliance.

The clause was declared unenforceable and deemed amended, and compliance orders were granted.

The applicant purchaser of a condominium unit sought relief alleging inadequate disclosure in the condominium corporation’s status certificate, arguing that undisclosed imminent roof repairs and expropriation funds rendered a subsequent special assessment inapplicable to its unit.

The corporation had received expropriation proceeds from a TTC project and placed them in the reserve fund to finance roof replacement.

A second special assessment was issued solely as an administrative mechanism to access those reserve funds and provided unit owners with options that resulted in no net financial change.

The court held that the status certificate’s disclosure did not result in prejudice because no increase in common expenses was required from unit owners.

The applicant was treated identically to other owners and suffered no financial disadvantage.

The application was dismissed.

The appellant condominium owner sought access to election proxies and ballots after an unsuccessful bid for the board of directors.

The Small Claims Court initially ordered production of the records, but later varied the order to require redaction of identifying information to protect owner privacy.

The appellant appealed the variation order to the Divisional Court.

The Divisional Court dismissed the appeal, finding it lacked jurisdiction because the appealed order was procedural and did not involve a monetary amount, and further held that the Small Claims Court judge had jurisdiction to clarify the order.

A commercial condominium corporation sought a compliance order against a grocery store tenant and its landlord to prevent the display of merchandise on the common element sidewalk.

The application judge granted the compliance order, dismissed the landlord's oppression application, and awarded costs to the condominium corporation.

The landlord and tenant appealed the compliance order, and the condominium corporation cross-appealed the costs award.

The Court of Appeal dismissed the main appeal, finding the limitation period had not expired due to continuous breaches, and upheld the dismissal of the oppression application.

However, the Court allowed the cross-appeal on costs, finding the application judge erred in principle by failing to explain her calculation of 'additional actual costs' under s. 134(5) of the Condominium Act, 1998, and remitted the costs issue for reconsideration.

The defendant sought costs following a motion to settle the powers and duties of an interim condominium administrator appointed years earlier without clearly defined authority.

The court reviewed the extent of the defendant’s participation and the value of the submissions, noting that many proposed drafting changes were stylistic rather than substantive and that the administrator had not taken an unreasonable position.

The plaintiffs neither filed materials nor attended the motion, and the administrator had acted pursuant to the court’s direction to clarify the mandate.

The court held that no basis existed for costs beyond partial indemnity.

Costs of $4,500 were awarded to the moving party in the cause, payable by the condominium corporation depending on the outcome of the underlying action.

The appellants appealed an order granting partial summary judgment to the respondent condominium corporation for unpaid common expense charges (condo fees).

The appellants argued that the claim for arrears should not have been separated from their counterclaims and set-off claims, which were directed to trial.

The Court of Appeal dismissed the appeal, holding that section 84(3)(b) of the Condominium Act, 1998 requires unit owners to pay common expenses regardless of any other claims between the parties.

The motion judge correctly found no genuine issue requiring a trial regarding the arrears and properly ordered the release of trust funds to partially satisfy the judgment.

The moving parties brought motions to quash appeals from an order of the Superior Court of Justice, arguing that the appeals were from interlocutory orders.

The Court of Appeal agreed with respect to the Dewan motion, finding the order appealed from did not finally dispose of any defences, and quashed that appeal.

For the Condominium motion, the Court found that most paragraphs of the order were interlocutory, except for one paragraph that removed a defence at trial, making it a final order.

The Condominium motion was allowed in part, quashing the appeal except for the final order paragraph.

The appellant appealed the decision of the motion judge denying an order for an oppression remedy under s. 135 of the Condominium Act, 1998.

The Court of Appeal found no basis to interfere with the motion judge's decision, noting she considered the full record, the case law, and properly exercised her discretion.

The appeal was dismissed with costs awarded to the respondent.

Following a consent order requiring condominium unit owners to comply with quarterly fire safety inspection obligations under the Condominium Act, the court addressed the issue of costs.

The condominium corporation sought full indemnity costs pursuant to s. 134 of the Act, arguing the respondents’ non-compliance necessitated the application.

The respondents opposed on the basis of financial hardship.

The court held that the financial burden of obtaining compliance should not fall on innocent unit owners and that the respondents’ failure created fire safety risks requiring court intervention.

Full indemnity costs of $12,000 were awarded and ordered to be added to the respondents’ common expenses under s. 134(5) of the Act.

The applicant sought declaratory relief that a writ of execution registered against him personally did not attach to lands he held in trust for a corporation.

The respondent creditor argued the trust arrangement raised triable issues and alleged the transaction was potentially a fraudulent conveyance.

The court held that the unregistered declaration of trust, created years before the writ of execution, established that the lands were held solely in trust and not beneficially by the debtor.

As an execution creditor can claim no greater interest than the debtor held, the writ could not attach to trust property or its sale proceeds.

Judgment was granted declaring the writ did not affect the lands and ordering release of funds held in trust.

The appellant, a condominium unit owner, appealed an order restricting his statutory right to examine condominium records and prohibiting him from coming within 25 feet of the management office.

The application judge had found his unrelenting requests amounted to harassment.

The Court of Appeal allowed the appeal in part, finding the complete elimination of his statutory right of access and the broad injunctive relief too extreme, especially since the conduct did not amount to actionable harassment.

The court set aside the injunctive components but upheld the requirements that requests be made in writing and photocopying charges be paid in advance.

The respondents originally brought an application for an oppression remedy under the Condominium Act, which was converted into an action by a consent order.

Years later, without delivering a statement of claim, the respondents returned the matter to a motion judge, seeking substantive monetary relief and alleging contempt.

The motion judge granted the monetary relief.

The Court of Appeal allowed the appeal, holding that the motion judge lacked jurisdiction to grant substantive relief on a motion since the application had been converted to an action, and the relief could not be justified as a remedy for contempt.

Following the disposition of the merits of the appeal on September 25, 2006, the Court of Appeal issued a supplementary endorsement regarding the costs of the application in the court below.

The court set aside the costs order below and awarded the appellants costs of the application fixed at $10,000 all-inclusive.

The appellants appealed a decision finding that their conduct in registering a condominium declaration with a bifurcated common expense formula was oppressive.

The formula exempted undeveloped parcels from contributing to the maintenance of a ring road.

The Court of Appeal allowed the appeal, holding that the declaration did not conflict with the Condominium Act, as the Act requires owners to contribute in the proportions specified in the declaration.

Furthermore, the developer's conduct was not oppressive because the formula was fully disclosed to purchasers before they bought their units, and it served a legitimate business purpose related to the staged nature of the development.

The appellant condominium corporation appealed the dismissal of its application for an order permitting it to enter the respondents' units to carry out mould remediation.

The corporation argued that the respondents' chosen method of remediation was insufficient and created a dangerous condition under s. 117 of the Condominium Act, 1998.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's factual findings that the corporation failed to prove a risk of mould spreading to other units.

The Court also held that the deference standard from Dvorchik did not apply because the corporation's remediation requirement was not a formal rule and involved competing statutory rights.

The appellant appealed a motion judge's decision dismissing its claim for intentional interference with contractual relations against a condominium corporation.

The condominium corporation had enforced rules prohibiting the rental of units for transient or hotel purposes.

The Court of Appeal dismissed the appeal, finding overwhelming evidence that the units were used for such purposes and that the corporation was statutorily obliged to enforce its rules.

The court also agreed that the appellant failed to raise a triable issue regarding economic loss, as its evidence was merely second and third hand.