Patricia Elia

Following an appeal that upheld a contempt finding against a condominium board but varied the sanction, the Court of Appeal addressed the costs of the underlying contempt motion.

The motion judge had awarded $109,598 on a substantial indemnity basis.

The Court of Appeal found that the board's conduct, while contemptuous, did not warrant elevated costs as it was not motivated by personal gain or vengeance.

The costs award was reduced to $35,000 on a partial indemnity scale, payable jointly and severally by the condominium corporation and the individual board members.

Condominium directors and the corporation appealed a finding of civil contempt arising from landscaping work that departed from an earlier endorsement requiring restoration of the condominium podium to its original design after garage repairs.

The majority held that, read in context, the endorsement was clear and unambiguous, that the appellants understood their obligations, and that they wilfully breached the order notwithstanding their asserted statutory authority under the Condominium Act, 1998.

The court upheld the restoration order but varied the sanction, holding that the motion judge erred in principle by focusing on shifting restoration costs away from unit owners rather than on deterrence, and by imposing a very substantial financial burden without evidence of ability to pay.

The order requiring the individual directors to bear restoration costs personally was set aside and replaced with fines of $7,500 each; indemnification under s. 38 was unavailable.