Megan L. Mackey

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.

The applicant sought declarations and orders against the condominium corporation and a board member for alleged failures to fulfill obligations under the Condominium Act, including inadequate funding of reserve accounts, failure to increase common expenses, and neglect of necessary repairs.

The respondents argued that the issues were being addressed by a new management company and that the business judgment rule applied.

The court dismissed the application, finding no evidence that the board had acted unfairly or unreasonably, or that court intervention was required.

The court addressed costs following a summary judgment motion where the plaintiff, Toronto Standard Condominium Corporation No. 2051, largely succeeded in having three debt instruments (a promissory note and two mortgages) declared oppressive and significantly reduced in value against the third party, Georgian Clairlea Corporation ("Georgian").

The plaintiff sought costs as the successful party, while Georgian claimed contractual costs under the mortgages.

The court found the plaintiff to be the successful party and rejected Georgian's claim for contractual costs, citing Georgian's oppressive conduct as a "special circumstance" justifying deprivation of such costs.

The court awarded the plaintiff partial indemnity costs up to its November 2017 offer to settle and substantial indemnity costs thereafter, totaling $150,453.20, after a minor reduction for excessive pre-trial costs and unused expert reports.

The moving party, assignee of the developer, sought summary judgment to enforce three debt instruments against the respondent condominium corporation.

The condominium corporation argued the instruments were oppressive due to inadequate disclosure to purchasers.

The court found the disclosure regarding the service unit mortgage and parking unit mortgage was confusing and insufficient, breaching the reasonable expectations of the purchasers.

The court reduced the principal amounts of both mortgages to reflect fair value and reasonable expectations.

The court also found a promissory note for land transfer tax was void for lack of a borrowing by-law and oppressive as it circumvented the developer's statutory obligation for first-year budget deficits.

The court awarded the condominium corporation amounts for common expense arrears, a first-year budget deficit, and reserve fund payments, and declined to appoint a receiver.

Georgian Properties Corporation (GPC) brought a motion to strike the factum of Toronto Standard Condominium Corporation No. 2051 (TSCC) in its entirety or in part, arguing that it raised issues outside the scope of the pleadings, contrary to a prior settlement agreement and court decisions.

The court found that the majority of TSCC's factum was proper, as many arguments related to the adequacy of disclosure or the exorbitant nature of mortgages, which were within the existing pleadings.

However, specific paragraphs alleging new claims, such as breach of agreements of purchase and sale or broader breaches of fiduciary duty, were struck.

The court denied GPC's request for the summary judgment motion to proceed before a different judge, citing efficiency and the judge's ability to remain impartial.

GPC's motion was deemed largely unnecessary, and GPC was ordered to pay TSCC's partial indemnity costs of $9,134.92.

Following a prior ruling ordering the discharge of a condominium common expense lien under s. 85 of the Condominium Act, the court determined the appropriate costs award.

The court emphasized that costs are discretionary under s. 131(1) of the Courts of Justice Act and guided by the principles in Rule 57.01 of the Rules of Civil Procedure, including complexity, importance of the issues, and litigation efficiency.

The court found that the responding party’s former counsel had taken an unnecessarily complex and evasive approach to what should have been a straightforward statutory process, generating unnecessary expenses.

While the conduct did not warrant substantial indemnity costs, it justified a level of costs between partial and substantial indemnity.

The applicant was awarded $10,000 in legal fees plus HST and $1,098.75 in disbursements.