K. Mitchell

A condominium corporation sought removal of a concrete pad installed in the exclusive use common element rear yard of a unit approximately 40 years ago by a predecessor in title without a s. 98 agreement under the Condominium Act.

The court dismissed the application, finding the doctrine of laches applied given the corporation's decades of acquiescence -- the board conducted annual walk-throughs during which the pad was clearly visible, yet took no action until 2024.

The court found the corporation's principal affiant not credible regarding lack of knowledge, held that the board did not act in good faith, and ordered the parties to enter into a s. 98 agreement rather than require removal.

The plaintiff brought a motion for answers to undertakings and refusals in the context of a construction lien action.

The motion was dismissed, and the parties submitted written arguments regarding costs.

The defendant, having been entirely successful, sought costs of $5,674.94 on a partial indemnity basis.

The court reviewed the factors under section 131 of the Courts of Justice Act and Rule 57.01, reduced the defendant's attendance fee, and fixed costs payable by the plaintiff to the defendant at $5,074.94.