Nelson Amaral

Middlesex Condominium Corporation No. 195 (MCC 195) brought a motion for partial summary judgment against Sunbelt Business Centres (Canada) Inc. (Sunbelt) regarding liability for hydro accounts and window replacement costs for commercial condominium units.

The court dismissed Sunbelt's limitation period defense, finding that the condominium's declaration was not an "agreement" to vary limitation periods and that MCC 195's claim was timely.

The court found Sunbelt liable for the hydro accounts servicing the commercial units, rejecting Sunbelt's interpretation that "separately metered for each unit" required one meter per legal unit.

However, the court found MCC 195 responsible for the cost of window replacement, determining that the windows were common elements and not exclusive use common elements, thus falling under the corporation's maintenance obligation.

A condominium corporation applied under s. 134 of the Condominium Act, 1998 for a declaration that a unit owner breached ss. 98 and 119 of the Act by maintaining window frames from a balcony enclosure attached to exclusive use common elements without a registered s. 98 agreement.

The owner argued the installation was not a structural change, and that the proceeding was barred by the Limitation Act, 2002 and the doctrine of laches.

The court held that the installation constituted an alteration to common elements requiring compliance with s. 98, including a registered agreement.

The limitation period did not apply because the application sought enforcement of a statutory obligation under the Act rather than internal condominium governance documents.

The court declared the breach and ordered that the condominium corporation be permitted to enter the unit to remove the window frames.

Following a successful condominium compliance application under the Condominium Act, 1998, the court determined costs.

The applicant sought full indemnity costs exceeding $11,000 based on actual legal fees.

The court held that s. 134(3) of the Act does not mandate full indemnity costs and that the primary consideration in fixing costs is what is fair and reasonable for the unsuccessful party to pay.

Applying partial indemnity principles, the court reduced the hourly rate and time claimed, fixing total costs at $5,729.30 inclusive of fees, disbursements, and HST.

The court also declined to award damages for remedial expenses not yet incurred, finding no jurisdiction under s. 134(3)(b)(i).