Shawn Pulver

The applicant sought leave to appeal an arbitration award interpreting a Condominium Services Agreement (CSA) between a condominium corporation and a service provider.

The arbitrator had ruled that the CSA permitted the service provider to include profit in fee increases during the COVID-19 pandemic when services were curtailed.

The applicant argued the arbitrator erred by allowing the factual matrix to overwhelm the contract language, failing to construe the contract as a whole, and relying on subjective intentions.

The court granted leave to appeal on these extricable questions of law but dismissed the appeal, finding no errors of law.

The court also rejected allegations of bias.

The appellant appealed a judgment enforcing a settlement agreement reached in open court regarding an estate and property dispute.

He argued the settlement should be set aside due to unconscionability, mutual mistake, and misrepresentation, claiming he did not understand the terms and was tricked by his former counsel.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's application of the test for unconscionability and concluding there was ample evidence that the appellant, who was represented by counsel, understood and agreed to the settlement.

The applicant, Esther Benmergui, sought interim relief against York Region Standard Condominium Corporation No. 1510 after experiencing four sewage back-ups in her newly purchased condominium unit.

The court found that the respondent failed to act with sufficient urgency to address the dangerous and uninhabitable condition of the unit, breaching its obligations under the Condominium Act, 1998.

The court ordered the respondent to pay for the applicant’s comparable alternate accommodation until repairs are completed and awarded partial indemnity costs.

The applicant, Maria Ramos, sought a declaration regarding the improper conduct of the 2021 Annual General Meeting (AGM) election of York Condominium Corporation No. 25 and an order for the corporation to pay the court-appointed inspector's fees.

The inspector, Eagle Audit, also moved for approval of its reports and payment of its fees.

The court found that the condominium's building manager had mishandled the 2021 election, making the results unreliable.

While declining to issue a declaration invalidating the 2021 AGM due to lack of practical utility, the court approved Eagle Audit's reports and ordered York Condominium Corporation No. 25 to pay Eagle Audit's full invoiced fees of $192,308.79, as well as Maria Ramos's costs on a substantial indemnity scale in the amount of $75,000 and Eagle Audit's costs of $37,151.82.

The court emphasized the importance of election integrity in condominium governance and found the corporation's resistance to the investigation and payment of fees unjustified.

This motion concerned the enforcement of a settlement agreement reached in open court regarding three complex estate applications.

The respondent, David Chong, sought to resile from the settlement, claiming duress, lack of comprehension, and fraudulent misrepresentation, and arguing the terms were unconscionable.

The court found David's reasons for resiling contradictory and uncorroborated, particularly in light of his former counsel's evidence.

The court dismissed the respondent's arguments, finding no inequality in bargaining power, no duress, and no fraudulent misrepresentation.

The court ordered the immediate sale of the property as per the settlement terms and fixed costs against the respondent.

The plaintiff brought a motion for summary judgment seeking compensation based on an alleged oral agreement for client referrals.

The defendant argued the agreement was for profit-sharing and that the matter was unsuitable for summary judgment due to disputed facts and credibility issues, particularly given the limitations on cross-examination under simplified procedure rules.

The court dismissed the plaintiff's motion, finding genuine issues requiring a trial, as the conflicting evidence regarding the oral agreement's terms and the parties' credibility could not be resolved on a summary judgment motion.

The defendant's counterclaim was dismissed by consent.

The defendants brought a motion for security for costs, which they subsequently abandoned.

The plaintiff had made a "with prejudice" settlement offer, including evidence of financial means, which the defendants did not accept.

The parties could not agree on the costs of the abandoned motion.

The court found the plaintiff's claimed costs reasonable, noting the defendants' lack of due diligence in bringing the motion, their improper focus on a summary judgment motion as frivolous, and the unreasonableness of requiring the plaintiff to prepare responding materials after the settlement offer.

The court awarded the plaintiff costs of $14,500.00 on a substantial indemnity basis for work incurred following the settlement offer, payable within 30 days, rejecting the defendants' request to defer payment.

The applicants, unit owners in a condominium, alleged oppression by the corporate respondent and its directors regarding the conduct of Board elections in 2018 and 2019, particularly concerning proxy handling and candidate disclosure.

The application was converted to a summary hybrid trial.

The court found that the Corporation, through its property manager, acted in a manner that was unfairly prejudicial to and unfairly disregarded the applicants' interests by mishandling their proxies and improperly questioning them during candidate disclosure.

However, the court did not find malice or widespread oppression by the individual directors, characterizing their conduct as sloppy rather than oppressive.

The applicants were awarded nominal damages of $5,000, as their primary relief (changing election outcome) was academic due to the passage of time, and their claimed damages were not quantifiable.

The appellant appealed the dismissal of her oppression application and the granting of summary judgment to enforce a condominium lien.

The appeal concerned whether a special assessment for repairs was remedial work under s. 97(1) of the Condominium Act, thereby not requiring a member vote, and whether the condominium's conduct constituted oppression.

The Court of Appeal found no error in the motion judge's determination that the work was remedial, upheld the oppression analysis, and affirmed the summary judgment, concluding there was no genuine issue requiring a trial.

The applicant condominium owner sought an oppression remedy against the condominium corporation regarding nighttime noise from the unit above, which was generated by medical equipment and nursing care for a disabled child.

The court found that the corporation had investigated the complaints, obtained expert reports, and acted reasonably.

The application was dismissed as the corporation had no authority to compel the neighbouring owner to renovate their unit, and the corporation's conduct was not oppressive.

The plaintiff brought a motion for summary judgment seeking the return of a $20,000 deposit and damages related to an aborted real estate transaction.

The defendant, the vendor, failed to provide full access for an inspection, which prevented the plaintiff from securing financing.

Although the defendant later offered to cure the breach, the plaintiff had already purchased another property.

The court granted relief from forfeiture, ordering the return of the deposit, but dismissed claims for damages based on the difference in property prices, land transfer tax, and interest rates, finding them not recoverable or too remote.

The plaintiff was awarded costs for the aborted transaction and the motion.

The applicants, who operated a cannabis retail store in their condominium units, sought to stay a final consent order requiring them to permanently cease their cannabis business.

The applicants argued that a recent condominium owners' meeting, which rejected their request to repeal the condominium's rule prohibiting cannabis sales, was procedurally flawed.

The court dismissed the motion, finding that the applicants failed to meet the stringent Carlisle test for staying a final order, as the condominium corporation's conduct was not oppressive or an abuse of process.

The court also found that the applicants failed to meet the RJR-MacDonald test for a stay.

The applicants brought a motion to compel the respondent's counsel to attend an examination under Rule 39.03 and to remove the counsel and his firm as lawyers of record.

The applicants sought to examine the counsel regarding a legal opinion he provided on the validity of proxies submitted during a condominium board election.

The court dismissed the motion, finding that the legal opinion lacked the 'high materiality and necessity' required to compel opposing counsel to testify.

Consequently, as counsel would not be a witness, there was no conflict of interest warranting removal from the record.

This endorsement addresses the issue of costs following the dismissal of the applicant's main application.

The respondent sought partial indemnity costs of $35,985.

The applicant argued for no costs, citing the court's previous finding of shared blame and the respondent's earlier inaction.

The court, applying principles from the Courts of Justice Act and Rule 57.01(1), determined that while the unsuccessful applicant should pay some costs, the quantum should be significantly reduced due to the respondent's contribution to the dispute and the applicant's uncompromising stance.

The court fixed costs at $12,500, inclusive of tax and disbursements.

This application concerned claims of oppression and declaratory relief brought by 37 townhouse unit owners against their condominium corporation.

The applicants alleged unfair treatment by a high-rise dominated Board of Directors, specifically regarding charges for interlock paving/steps, retroactive water charges, maintenance/landscaping/snow removal, and amenities, as well as inadequate notice practices.

The court found that the Corporation was responsible for the costs of interlock repairs and retroactive water charges due to lack of proper notice and inconsistent application of the Declaration.

It also declared the Corporation responsible for landscaping and snow removal for townhouse verandas and steps.

While the charge for amenities was deemed valid, the court urged regularization by bylaw and emphasized the need for proper notice delivery methods.

The court found the Board's management to be poor and unprofessional but ultimately concluded that their actions, while close to oppression, did not meet the legal threshold for an oppression remedy.

The respondent unit owner's tenant brought a motion for directions seeking to discharge a lien registered by the applicant condominium corporation.

The lien was for legal expenses incurred by the corporation in enforcing compliance with condominium rules regarding noise disturbances.

The moving party argued the lien was premature and illegal, as the underlying contempt motion was adjourned.

The court dismissed the motion, holding that legal costs for enforcing a compliance order are recoverable as common expenses under s. 85(1) of the Condominium Act, 1998, and that the lien was proper, subject to future adjustment.

Following a successful summary judgment motion where the plaintiff recovered her deposit on a failed condominium purchase, the plaintiff sought costs of $483,236 on a substantial indemnity basis.

The court found the plaintiff's Rule 49 offers did not contain a clear, understandable compromise, disentitling her to substantial indemnity costs.

Applying the factors under Rule 57.01, the court noted the plaintiff's scattergun approach, unnecessary proceedings, and excessive billing.

The court fixed partial indemnity costs at $225,000, reflecting a fair and reasonable amount the defendant could expect to pay.

A condominium corporation sought an equitable lien and priority over a registered mortgage for substantial unpaid common expense arrears relating to numerous units.

The corporation argued that the unit owner had been unjustly enriched by failing to pay common expenses and that the court should grant equitable relief or revive the statutory condominium lien that had expired.

The court held that the Condominium Act, 1998 provides a comprehensive statutory scheme governing liens for common expenses and that courts cannot create an equitable lien where the statute occupies the field.

Even if such a lien existed, it would not take priority over the previously registered mortgage under the Land Titles Act.

The court further held that a purchaser or mortgagee is entitled to rely on the representations contained in a status certificate and is not required to investigate beyond it.

The motion seeking priority or revival of the lien was dismissed.

On a summary judgment motion arising from a mixed-use condominium shared services dispute, the court enforced a registered Shared Services Agreement requiring payment of shared project expenses.

The responding parties argued the claim was statute-barred under the two-year period in the Limitations Act, 2002 and alternatively relied on estoppel and alleged breach by the moving party.

The court held that the claim was governed by the ten-year limitation period in s. 23(1) of the Real Property Limitations Act because the amounts were secured by a lien and charged upon land.

After applying the Hryniak summary judgment framework and using Rule 20 fact-finding powers, the court found the amounts owing were proven, no estoppel was established, and summary judgment should issue for the full amount claimed.

The appellant appealed a decision upholding a municipal by-law that restricted the operating hours of licensed body rub parlours.

The appellant argued the City acted unreasonably and lacked sufficient evidence connecting the nuisance to licensed operations.

The Court of Appeal dismissed the appeal, noting that under section 213 of the City of Toronto Act, 2006, the by-law is not reviewable on the ground of reasonableness, and finding no palpable or overriding error in the application judge's evidentiary findings.