Patricia M. Conway

The defendant developer moved for leave to appeal a motions judge's decision refusing to strike or stay an action brought by an individual condominium unit owner.

The unit owner sought damages for construction deficiencies, including to common elements.

The condominium corporation had already commenced a separate action on behalf of all owners for common element deficiencies.

The Divisional Court granted leave to appeal, finding conflicting decisions on whether an individual owner can maintain a separate action for common element deficiencies without opting out of the corporation's action, and good reason to doubt the correctness of the motions judge's decision.

The plaintiff condominium corporation appealed a Master's order refusing leave to amend its statement of claim to add a related company as a defendant and assert a fraudulent conveyance claim regarding two mortgages.

The Master found the proposed claim was statute-barred under the Limitations Act, 2002.

On appeal, the Divisional Court upheld the Master's decision, confirming that a fraudulent conveyance action is a 'claim' under the new Limitations Act, 2002, and is subject to the basic two-year limitation period.

The court also agreed that the plaintiff was seeking consequential relief, meaning the exemption for purely declaratory relief did not apply, and found no palpable and overriding error in the Master's conclusion that the claim was discoverable more than two years before the proposed amendment.

The appellants appealed an order annulling their assignments into bankruptcy under s. 181 of the Bankruptcy and Insolvency Act.

The motion judge had found that the assignments were filed without obtaining leave as required by a prior receivership order.

The Court of Appeal upheld the decision, finding that an assignment in bankruptcy constitutes a 'proceeding' under the prior order and that the leave requirement did not offend the doctrine of federal paramountcy.

The appeal was dismissed.

The appellant real estate developer appealed an order striking its defamation claim regarding an April 2001 condominium newsletter.

The motions judge struck the claim under Rule 21, finding the statement about inaccurate hydro meters was not capable of a defamatory meaning.

The Court of Appeal agreed, noting the words did not refer to the appellant or imply fault.

The appeal was dismissed with costs.

The appellants appealed an order of the Superior Court of Justice that allowed an appeal from an arbitrator's award regarding the interpretation of a condominium cost-sharing agreement.

The dispute centered on the allocation of bulk hydro bill costs for the parking and service garage.

The Court of Appeal dismissed the appeal, finding that the application judge correctly interpreted the agreement harmoniously to allocate the costs to the appellant, consistent with the building's single bulk hydro meter design.

The appellants appealed the quantum of costs awarded to the respondents by the application judge.

The Court of Appeal found that the application judge erred in principle by failing to analyze the application of costs principles to the facts.

The costs awarded to one respondent effectively amounted to substantial indemnity costs, while the costs awarded to the other were disproportionate to its participation.

The appeal was allowed, and the costs awards were reduced.

The appellants appealed the appointment of an administrator for a condominium corporation and the award of substantial indemnity costs against them.

The Court of Appeal upheld the appointment of the administrator, finding no palpable and overriding error in the motion judge's conclusion that a state of disequilibrium existed due to tension between two groups with divergent interests regarding the transient use of units.

However, the Court granted leave to appeal costs and substituted an award of partial indemnity costs, finding no basis for substantial indemnity costs.

The appellant appealed a motions judge's decision refusing to grant an adjournment, appoint an inspector, or invoke compliance and oppression remedies under the Condominium Act, 1998.

The Court of Appeal upheld the motions judge's exercise of discretion, noting that while the direct election of the president and prohibition of proxies were non-compliant, they were approved by the Board to address long-standing complaints.

The court also confirmed that an increase in common expenses in the annual budget does not require a by-law or compliance with s. 97(4) of the Act.

The appeal was dismissed.

Following the release of the majority reasons for judgment dismissing the appeal, the Court of Appeal received written submissions on costs.

Having regard to the respondents' success, the complexity and novelty of the issues, and the equities between the parties, the court awarded the respondents their costs on a partial indemnity basis fixed at $38,000 all inclusive.

The appellant condominium corporation and the original developer entered into a reciprocal agreement to share expenses for a recreational facility.

The developer's successor in title, the respondent, refused to pay the interim expenses.

The appellant argued that the positive covenant to pay expenses ran with the land or was enforceable under the English benefit and burden or conditional grant exceptions.

The Court of Appeal held that positive covenants do not run with freehold land and declined to adopt the English exceptions, stating that any reform to this area of property law must be undertaken by the legislature.

The appeal was dismissed.