Megan L. Mackey

The plaintiffs brought a motion seeking leave to issue a certificate of pending litigation (CPL) against a matrimonial home allegedly transferred by one defendant to his spouse in a fraudulent conveyance scheme.

The plaintiffs' claims as creditors were based solely on damages sought in a separate underlying action against the defendant and others.

The court applied the three-part test from Grefford v. Fielding and dismissed the motion, finding that the plaintiffs failed to demonstrate a high probability of success in the underlying action and that the balance of convenience favoured denying the CPL, particularly given that the current property owner was a stranger to the underlying dispute.

This endorsement addresses the issue of costs following an order requiring Christine Antunes to vacate a condominium unit owned by Coralia Maria Antunes, after finding their conduct contrary to the Condominium Act and the condominium's rules.

The court considers the applicant's request for full indemnity costs, the respondents' financial circumstances, and the policy rationale against routinely granting full indemnity in condominium disputes.

Ultimately, the court awards $7,500 in costs to the applicant, to be added to the unit's common expenses, finding this amount fair and reasonable in the circumstances.

The court granted an application by Halton Standard Condominium Corporation No. 534 for an order requiring Christine Antunes to permanently vacate her condominium unit due to ongoing disruptive behaviour, including excessive noise and harassment of residents and staff, in breach of a prior Tribunal order and the Condominium Act.

The court found that both Christine and her mother, Coralia Maria Antunes (the unit owner), had breached their obligations under the Act and the condominium’s declaration and rules.

The court rejected the respondents’ arguments regarding disability accommodation, finding no evidence of a causal link between Christine’s addiction and her conduct, and held that, in any event, the duty to accommodate had been satisfied.

Christine was ordered to vacate the unit within 120 days.

The court found that York Region Condominium Corporation No. 664 had oppressed unit owner Joshua Frankel by breaching a settlement agreement to resolve a persistent noise issue in his unit.

The court held that the condominium’s failure to install the agreed-upon pumps, instead opting for a cheaper alternative that did not resolve the problem, constituted unfair disregard of Frankel’s interests under section 135 of the Condominium Act, 1998.

The court ordered the condominium to take all necessary measures to attenuate the noise and awarded Frankel $32,500 in compensation for the oppression, as well as $30,000 in 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.

The applicants sought an oppression remedy against the condominium corporation regarding alleged inaccurate status certificate disclosures about balcony repairs and a solarium, and subsequent oppressive conduct.

The court found the original status certificate accurate regarding balcony assessments and solarium status.

However, it found the corporation engaged in oppressive conduct by deliberately altering and falsifying a status certificate provided to the applicants post-purchase and then lying about its authenticity.

The applicants were awarded $75,000 in damages and exempted from solarium demolition costs, but remained responsible for balcony special assessments.

The applicants sought damages for water infiltration in their condominium unit against the vendor and the condominium corporation.

They alleged the vendor knew of the leakage prior to closing and the corporation delayed necessary repairs.

The vendor brought a counter-application for the release of a $75,000 holdback.

The court found that the vendor acted reasonably and responsibly upon discovering new leakage just before closing, and that the condominium corporation also acted reasonably and expeditiously within the constraints of the Tarion New Home Warranty Program, as the water infiltration was a complex, sitewide issue.

The applicants failed to provide sufficient evidentiary basis for their claimed damages and procedurally altered their requested relief at the hearing.

The application was dismissed, and the $75,000 holdback was ordered to be returned to the vendor.

This is a costs endorsement following an appeal decision where the Court of Appeal allowed the appeal, restored an arbitrator's award, and awarded costs of the appeal to the appellant.

The court set aside the application judge's original costs order and awarded costs of the proceedings before the application judge to the appellant, Halton Condominium Corporation No. 137, in the sum of $8,083.33, inclusive of disbursements and applicable taxes.

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 appellant, a developer and unit owner, appealed a lower court decision that upheld certain administrative and amenity fees imposed by the condominium corporation's By-Law No. 7 on unit owners who rent their units short-term.

The appellant argued these fees were ultra vires the Condominium Act, 1998 and the condominium's declaration, and were oppressive.

The Court of Appeal dismissed the appeal, finding that the fees were consistent with the declaration's intent for rental governance and were not oppressive, as they offset costs attributable to rental activities and were supported by the historical operation and an overwhelming owner vote.

The applicant, a unit owner, challenged several provisions of the respondent condominium corporation's By-law No. 7 concerning rental activities, arguing they were ultra vires or unreasonable.

The court found that the condominium had the power to oversee rental activities, charge rental management and amenity fees, collect damage deposits, and limit tenant occupancy.

However, the court struck down restrictions on advertising and requiring owners to use only Board-approved rental managers as unreasonable infringements on property rights.

Joan Marilyn MacDonald sought an oppression remedy under the Condominium Act, challenging a special assessment levied by Wentworth Condominium Corporation No. 96 (WCC96) for building repairs and the subsequent lien registered against her unit.

WCC96 sought summary judgment to enforce the lien.

The court dismissed MacDonald's application, finding that the Board acted within its authority and that the special assessment for remedial work did not require a unit owner vote under the Act or bylaws.

Summary judgment was granted to WCC96, allowing enforcement of the lien and sale of the unit, though with a 30-day grace period for MacDonald to remedy the default.

The applicants sought declarations that short-term leasing was permitted in their condominium corporation (TSCC 2492), an injunction against the corporation preventing such leasing, and an oppression remedy with damages and costs, arguing that TSCC 2492's rule prohibiting leases under six months contradicted its declaration.

The respondent sought dismissal of the application.

The court applied the business judgment rule, finding that the board acted diligently and in good faith, adopting a reasonable interpretation of its declaration and rules.

The court dismissed the application, concluding that the board's rule was not inconsistent with the declaration and that the applicants failed to establish a breach of reasonable expectations or oppressive conduct.

The applicant sought an order declaring Notices of Sale issued by the respondent condominium corporation against its units null and void, alleging non-compliance with the Condominium Act, the corporation's declaration, and by-laws.

The applicant argued that a special assessment was improperly levied without a budget, the notice of assessment lacked required information and was misleading, and funds were misappropriated.

The court dismissed the application, finding that the corporation had adopted a prior budget, the notice provided sufficient reasons for the assessment, the alleged misinformation was due to the applicant's non-payment, and no misappropriation of funds occurred as payments were reimbursements for expenses incurred on behalf of the corporation.

The applicant, a unit owner, brought an application under the oppression remedy of the Condominium Act, 1998, alleging the condominium corporation acted oppressively, unfairly prejudicially, and unfairly disregarding her interests regarding a building-wide Kitec plumbing replacement project.

The applicant refused to participate in the project or allow inspection, claiming her unit had copper piping, which contradicted prior information.

The condominium corporation insisted on verifying the safety of the plumbing, eventually conducting pressure testing through its own contractors after the applicant failed to provide satisfactory documentation or access.

The court dismissed the application, finding the corporation acted reasonably to ensure property safety and did not breach the applicant's reasonable expectations.

The appellant appealed a judgment of the application judge dismissing her claim for orders to change the respondent condominium corporation's budget and repair schedule, remove the individual respondent from the board, and obtain ancillary relief.

The appellant sought to introduce new evidence post-hearing to demonstrate that the corporation's assets were in danger and that the board was mismanaging the corporation.

The Court of Appeal declined to retry the application on a new evidentiary record, finding it was not the function of the appellate court and would be fundamentally unfair to the respondents.

The appeal was dismissed with costs awarded to the respondents.

The appellant, Georgian Properties Corporation, appealed a summary judgment that reduced the principal amounts owing under two vendor take-back mortgages given by the respondent condominium corporation to the developer.

The mortgages related to HVAC service units and unsold parking and storage units.

The motion judge found the developer's revised disclosure documents infringed the Condominium Act and that both transactions were oppressive.

The principal amounts were reduced to reflect fair market value.

The Court of Appeal upheld the motion judge's findings regarding insufficient disclosure and oppression, dismissing the appeal and cross-appeal.

The applicants, Michael and Victoria Noguera, sought an oppression remedy under s. 135 of the Condominium Act, 1998, against Muskoka Condominium Corporation No. 22, alleging oppressive and unfairly prejudicial conduct.

This arose from a dispute over the Board's approval of structural changes to their units, the requirement for a s. 98 agreement, and restrictions on their use of common elements.

The Condominium brought a cross-application to re-examine the approval process.

The court found the Board's initial approval of the structural changes to be valid, rejecting claims of conflict of interest or lack of quorum.

It determined that the Condominium's subsequent actions, including demanding an overly broad s. 98 agreement and restricting common element use, were oppressive and unfair.

The court ordered the parties to enter into a modified s. 98 agreement, permitted the applicants to use the lakeside path, and awarded them $10,000 in general damages.

The Condominium's cross-application was dismissed.

This is a costs endorsement following an unsuccessful application by Catharine Patricia Patterson.

The successful respondent, York Condominium Corporation No. 70, sought substantial indemnity costs, arguing for deterrence against unmeritorious lawsuits.

The unsuccessful applicant requested partial indemnity costs in her favour, despite losing the application.

The court, applying Rules 49 and 57.01 of the Rules of Civil Procedure and principles from Boucher v. Public Accountants Council for the Province of Ontario, found the applicant's submissions unacceptable and the respondent's request for substantial indemnity costs unwarranted.

While agreeing the application lacked merit, the court did not find the threshold for substantial indemnity met.

The court awarded the respondent partial indemnity costs of $14,646, to be paid by the applicant.