Megan L. Mackey

The self-represented tenants appealed a Superior Court order requiring them to pay $47,300 in rental arrears and vacate their unit.

They filed the appeal in the Divisional Court.

The court held that because the appealed order included an eviction order, jurisdiction properly rested with the Court of Appeal pursuant to the Courts of Justice Act.

The appeal was transferred to the Court of Appeal and costs were awarded to the landlords.

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 applicant, owner of a penthouse unit that is twice the size of other units in the building, sought an oppression remedy under s. 135 of the Condominium Act, 1998.

The applicant objected to an amendment to the condominium declaration that changed the cost-sharing of common expenses from an equal share per unit to a share based on unit size.

The court dismissed the application, finding that the board's decision to amend the declaration to ensure equitable contribution to common expenses and adequately fund the reserve fund was reasonable and not oppressive.

The applicant's claim for damages was also dismissed.

The appellant, Halton Condominium Corporation No. 137, appealed an order setting aside an arbitration award concerning Mensula Bancorp Inc.'s access to parking units through the condominium's common elements.

The arbitrator had interpreted the condominium declaration to limit Mensula's access, but the application judge set aside the award, finding the arbitrator exceeded jurisdiction by effectively amending the declaration.

The Court of Appeal allowed the appeal and restored the arbitrator's award.

The Court held that the application judge erred by reviewing the substance of the arbitrator's interpretation under the guise of jurisdictional error, contrary to the narrow scope of review under the Arbitration Act, 1991.

The applicants sought an order to amend a condominium's declaration and description to correct a defective title issue caused by previous inadequate legal work.

The court found that the amendment was necessary to correct an inconsistency and to carry out the intent of the declaration, which anticipated future development.

The court granted the order under s. 109(3) of the Condominium Act, 1998, and also deemed service of the application effective.

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 plaintiff hotel owner sued the defendant condominium corporation for historical overpayments of shared electricity costs spanning 2006 to 2015.

The overpayments resulted from a conversion error in an Excel spreadsheet used to calculate the plaintiff's share.

The court found the defendant was unjustly enriched and ordered repayment of $730,058.99.

The court rejected the defendant's limitation period defence, finding the error was not reasonably discoverable until a consultant identified it in 2017.

The court also dismissed the defendant's claim for equitable set-off regarding alleged underpayments in other areas.

The applicant filed two cases with the Condominium Authority Tribunal regarding unreasonable noise and vibration, which were similar to an ongoing case.

The Tribunal proposed adjourning the new cases pending the outcome of the ongoing case.

The applicant requested an adjournment for medical reasons.

The Tribunal granted the adjournment until August 15, 2022, based on the medical documentation provided, and deferred the decision on whether to merge or further delay the cases.

The plaintiff brought a motion seeking production of 12 years of condominium board minutes, the examination for discovery of a non-party former director, the return of renovation deposits, and answers to refusals from a co-defendant's examination.

The court dismissed the requests against the condominium, finding the plaintiff had not met the test under Rule 31.10 to examine a non-party and had not established entitlement to further minutes or deposits.

The court partially granted the refusals motion, ordering the co-defendant to answer three specific questions.

The applicant condominium corporation brought an application regarding alleged noise disturbances caused by the respondent unit owner.

The respondent requested an adjournment of over three months for medical reasons, supported by a doctor's note.

The applicant opposed a lengthy adjournment without an interim order prohibiting the noise.

The Tribunal granted the adjournment on terms, requiring the respondent to provide an updated medical note and stipulating that the adjournment would be lifted if other cases initiated by the respondent proceeded.

The request for an interim order was denied as it would effectively determine the main issue in dispute.

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 respondent condominium corporation sought an order requiring the moving party unit owners to sell their unit or comply with the condominium's rules following a series of disputes between neighbours.

The moving parties moved to stay the application, arguing the dispute must first be mediated and arbitrated pursuant to s. 132(4) of the Condominium Act, 1998.

The court found that the core of the dispute related to the condominium's declaration, by-laws, and rules, rather than statutory breaches of ss. 117 and 119 that would bypass arbitration.

The court granted the motion and stayed the application pending mediation and arbitration, awarding costs to the moving parties.

The applicant unit owner sought an oppression remedy and $50,000 in damages against the respondent condominium corporation and its volunteer directors, alleging they oppressively delayed replacing his drafty bedroom window for 13 years.

The court dismissed the application, finding the corporation acted reasonably, followed its window replacement policy, and did not breach its duty to repair.

The court also held that suing the directors personally was vexatious, as there were no allegations of bad faith or personal benefit to support personal liability.

The self-represented plaintiff brought an urgent motion seeking 18 forms of relief, primarily an interlocutory injunction to stay the power of sale of her commercial condominium unit by the defendant condominium corporation.

The corporation had registered a lien and initiated power of sale proceedings due to the plaintiff's failure to pay common element fees.

The court dismissed the motion, finding it lacked jurisdiction to grant an interlocutory injunction as no permanent injunction was sought in the underlying action.

Furthermore, the court held the plaintiff failed to establish irreparable harm or that the balance of convenience favoured an injunction, and dismissed her claims for Mareva and Mills injunctions, as well as her requests to strike the defendants' pleadings.

The defendant condominium corporation brought a motion to stay the plaintiffs' action against it pending mediation and arbitration under the Condominium Act, 1998 and the Arbitration Act, 1991.

The plaintiffs opposed the stay, arguing that the claims against the condominium corporation were intertwined with the claims against the developer and that bifurcating the proceedings would cause duplication and inconsistent verdicts.

The court found that while bifurcation was unreasonable and risked multiplicity, recent Supreme Court of Canada jurisprudence mandated a stay under section 7 of the Arbitration Act, 1991, as no statutory exceptions applied.

The motion to stay was granted.

The respondents in a condominium application brought a motion to compel the applicant to answer refusals from the cross-examination of four deponents and to compel the deponents to re-attend.

The underlying application involved allegations that the respondents engaged in a campaign of harassment against condominium management and directors.

The court reviewed the disputed refusals, ordering the applicant to provide written clarifications for a small number of questions where the deponents' answers were incomplete.

The balance of the motion was dismissed, and the request for re-attendance was denied as disproportionate.

The moving party, a condominium unit owner, brought a pre-emptive motion under Rule 25.11 to strike the condominium corporation's Notice of Application and the supporting affidavit.

The underlying application sought to amend the condominium declaration to correct an allegedly inequitable allocation of common expenses.

The court dismissed the motion to strike the Notice of Application, finding it pleaded a reasonable issue.

The court partially granted the motion to strike the affidavit, expunging specific paragraphs containing inadmissible hearsay and scandalous statements, but left the majority of the evidentiary objections for the application judge to determine on a full record.

Following the dismissal of the applicants' motion and the granting of the respondent's motion to prohibit further motions, the respondent sought partial indemnity costs.

The applicants opposed, arguing the respondent's costs were covered by insurance and that the court lacked jurisdiction over their motion.

The court rejected the applicants' arguments, finding no reason to depart from the usual rule that costs follow the event.

The court awarded costs to the respondent but declined to make the applicants jointly and severally liable, instead ordering each to pay half the total amount.

The applicant sought to set aside part of an arbitration award concerning a parking unit owner's access to condominium common elements.

The court held that, although the access dispute was properly before the arbitrator, the arbitrator went beyond contractual interpretation and effectively corrected or amended errors and inconsistencies in the declaration.

Because amendments or corrections to a condominium declaration fall within the Superior Court's jurisdiction under s. 109 of the Condominium Act, the arbitrator decided a matter outside the scope of the arbitration agreement for the purposes of s. 46(1)3 of the Arbitration Act.

The access-related portion of the award was set aside and costs were awarded to the applicant.

Following an application to strike down certain condominium by-laws, the parties agreed that the successful party should be awarded $25,000 in costs.

Both parties claimed to be the successful party.

The court determined that the respondent was the successful party, as most of the impugned by-laws were upheld, and awarded the respondent $25,000 in costs.