Rodrigo Escayola

The decision addresses two motions in a commercial real estate dispute: a motion to strike claims against individual condominium directors, and a motion for production of documents.

The court struck the claims against the directors but granted the plaintiff leave to amend, finding the pleadings did not sufficiently distinguish the directors’ conduct from that of the corporation.

The court also dismissed the plaintiff’s production motion, holding that privilege over communications with counsel and the property manager was not waived by the addition of the property manager as a third party.

The ruling clarifies the high threshold for personal liability of condominium directors and the scope of privilege in multi-party litigation.

The appellant appealed the dismissal of his oppression action by way of summary judgment.

The action arose from a condominium fire, subsequent lien for remediation costs, and eventual power of sale of his unit.

The Court of Appeal dismissed the appeal, finding no errors in the motion judge's decisions regarding amendments to the claim, expert evidence, the suitability of summary judgment, or apprehension of bias.

Two neighbouring condominium corporations, Ottawa-Carleton Condominium Corporation No. 574 (574) and Ottawa-Carleton Condominium Corporation No. 573 (573), brought cross-applications to determine their legal and financial obligations regarding a shared timber retaining wall requiring replacement. 574 sought a declaration that 573 was responsible for 40% of costs, proportional to the wall's presence on their property. 573 claimed the wall encroached on its property and sought its relocation or a significantly reduced cost contribution (8.11%).

The court dismissed 573's encroachment claim, finding the Site Plan Agreement did not create enforceable obligations between successors in title and that 573 was bound by the original developer's decisions.

The court determined that the wall was a common element benefiting both properties and that 573 was statutorily obligated to contribute to its maintenance.

The court ordered a 60/40 cost split, with 574 paying 60% and 573 paying 40%, based on the proportion of the wall on each property, rejecting 573's arguments for a lower contribution based on hypothetical original plans or perceived benefit.

Substantial indemnity costs were awarded to 574 due to 573's unreasonable refusal of settlement offers and the resulting disproportionately high legal costs.

Carleton Condominium Corporation No. 519 (CCC 519) brought an application seeking to compel Ottawa-Carleton Standard Condominium Corporation No. 656 (OCC 656) and Carleton Condominium Corporation No. 522 (CCC 522) to share the costs of replacing a critical electric switchgear (ESG) located on CCC 519's property but serving all three condominiums.

CCC 522 agreed to contribute, but OCC 656 refused, arguing its declaration did not require it and CCC 519 was responsible for its common areas.

The court applied the doctrine of unjust enrichment, finding OCC 656 had been incontrovertibly benefited and failed to establish a juristic reason for retaining the benefit without contributing.

The court rejected the argument that the absence of a cost-sharing agreement constituted a juristic reason.

The application was granted, requiring both respondents to share costs equitably, with a reference directed for cost apportionment if necessary.

The applicants sought an order directing an assessment of legal accounts paid to Gowling WLG (Canada) LLP for work performed for Carolyn Brown.

Gowlings consented to the assessment but raised concerns about solicitor-client privilege over portions of its file, particularly for the period before formal counsel appointment, questioning if the applicants (Carolyn's litigation guardians) could waive this privilege.

The court ruled that the guardians, acting as guardians of property, had a legitimate purpose to obtain disclosure to ensure reasonable billing, thereby waiving the solicitor-client privilege for the assessment.

The court emphasized that while a person lacking capacity retains dignity and privacy, disclosure is permissible when necessary to protect their interests, and the assessment officer will determine the appropriate scope of production.

This motion concerned the entitlement to funds held in court, initially part of a beneficiary's share of an estate, which were subject to a condition (provision of a letter of credit) that was never met.

The beneficiary, now an undischarged bankrupt, purported to assign his interest in these funds to a charitable foundation for his children before his bankruptcy.

The Estate Trustee and Trustee in Bankruptcy sought an order directing the funds to be paid out according to their settlement.

The court addressed the standing of the bankrupt and the foundation, the application of the Law of Assent regarding the transfer of estate assets, and whether the purported assignment was a reviewable transaction under the Bankruptcy and Insolvency Act.

The court found that neither the bankrupt nor the foundation had standing, that the Estate Trustee had never assented to the transfer of the funds to the bankrupt, and that the purported assignment was a reviewable transaction made for nominal consideration to non-arm's length parties with inferred intent to defraud creditors.

The motions brought by the Estate Trustee and Trustee in Bankruptcy were granted, directing the funds to be paid to the bankruptcy estate and the estate creditors.

The applicant condominium corporation sought declarations, injunctions, and compliance orders requiring the respondent unit owners to wear masks in the common elements, alleging their refusal constituted a dangerous activity under s. 117 of the Condominium Act.

The respondents claimed medical exemptions under provincial regulations and municipal by-laws, which did not require proof of exemption.

The court balanced the competing rights, finding that while the respondents could transit through common elements for ingress and egress without a mask due to their claimed exemptions, wandering or exercising on other floors without a mask constituted a dangerous activity.

The court issued a compliance order and permanent injunction restricting the respondents' unmasked movement to direct ingress and egress.

The creditors sought to lift a stay of proceedings in bankruptcy to continue a civil action against the bankrupt, Thomas G. Assaly, and to annul his bankruptcy.

The court found that the bankrupt had engaged in a pattern of filings (US Chapter 11, consumer proposal, then bankruptcy) to avoid litigation.

While the consumer proposal ceased to exist upon bankruptcy, the court declined to annul the bankruptcy, finding that the bankrupt's liabilities exceeded his assets, distinguishing it from cases where annulment was granted due to solvency or abuse of process.

The court lifted the stay of proceedings to allow the quantification of provable claims for the purpose of filing a proof of claim in bankruptcy, and also allowed non-monetary claims (declaration of vexatious litigant, and an order restricting future proceedings) to proceed as they are not provable in bankruptcy.

The court also ordered the bankrupt to disclose all worldwide creditors and for the trustee to investigate certain assets.

The defendants brought a Rule 21 motion to strike the plaintiff’s statement of claim alleging entitlement to a survivor’s pension following the death of her separated spouse.

The court considered the Pension Benefits Act provisions governing mandatory joint and survivor pensions and the effect of spouses living separate and apart at the relevant time.

It held that because the spouses were separated when the first pension payment became due, the statutory requirement for a joint and survivor pension did not apply and the guardian of property was entitled to elect a single life annuity for the member’s benefit.

No duty of care was owed by the Public Guardian and Trustee to the separated spouse, and the pleadings disclosed no reasonable cause of action.

The statement of claim was struck, but leave was granted to deliver a fresh claim against the pension administrator only if based on a possible mandatory plan provision requiring a joint and survivor annuity.

The plaintiffs sought leave to appeal orders removing their solicitor of record and awarding costs.

The motion judge considered the test under Rule 62.02(4) of the Rules of Civil Procedure for granting leave to appeal.

The underlying orders were based on a conflict of interest arising from a solicitor’s prior solicitor-client relationship and the potential use of confidential information, applying the principles from Martin v. MacDonald Estate (Gray).

The court found no good reason to doubt the correctness of the original decision removing counsel and awarding costs.

Leave to appeal was refused and the parties were ordered to bear their own costs of the motion.

The applicants, condominium unit owners, sought costs on a full indemnity basis following a dispute with the condominium board over modifications to the courtyard.

The parties had reached minutes of settlement, which the board subsequently attempted to resile from, necessitating a motion to enforce the settlement.

The court found that the board acted in bad faith in attempting to resile from the agreement.

Costs were awarded to the applicants, with the condominium corporation ordered to pay the costs of the injunction and application, while the board members were ordered to personally pay the costs of the motion to enforce the settlement.