Megan L. Mackey

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.

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.

Following a decision with divided success, the applicant sought costs based on three unaccepted offers to settle.

The respondent argued the claimed amount was excessive and noted duplication of effort due to a change of solicitors.

The court agreed with the respondent's submissions on quantum but applied Rule 49.10, awarding the applicant partial indemnity costs up to the date of its final offer and substantial indemnity costs thereafter, fixing total costs at $13,501.01.

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.

The applicant condominium corporations brought an application to regulate requisitioned owners' meetings called to vote on the removal of the current boards of directors.

The applicants sought to prohibit the use of proxies and limit communications among owners, alleging the respondent circulated misleading information regarding a special assessment.

The court dismissed the requests to prohibit proxies and limit communications, finding such orders inconsistent with the democratic governance model under the Condominium Act, 1998.

The court ordered the meetings to proceed with an independent chair and awarded partial indemnity costs to the respondent.

The applicant developer sought reimbursement of $79,560 in HST from the respondent condominium corporation for four units the corporation was required to purchase.

The corporation brought a cross-application arguing the disclosure statement was misleading and sought damages for oppression due to the developer's conduct during refinancing.

The court found the disclosure statement's reference to 'plus all applicable taxes' was sufficient and ordered the corporation to pay the HST.

However, the court also found the developer's conduct during refinancing warranted sanction and ordered it to pay the corporation's additional legal costs of $20,597.90 as a set-off.

Two condominium corporations brought applications to amend their declarations to remove provisions that expressly permitted short-term transient rentals.

The corporations argued the provisions were inconsistent with the Condominium Act, 1998, the applicable zoning by-law, and a restrictive covenant on title.

The court dismissed the applications, finding no inconsistency.

The declarations did not impermissibly grant rights but rather defined the scope of use restrictions, and the inability of the boards to make rules restricting short-term leasing was mandated by the Act's requirement that rules be consistent with the declaration.

The court held that any desired changes to the declarations should be pursued through the owner approval process under section 107 of the Act, rather than by alleging an inconsistency under section 109.

The applicant condominium corporation sought costs against a commercial tenant and landlord following a consent compliance order regarding severe noise issues from a restaurant.

The court held that the consent order did not preclude the applicant from seeking its additional actual costs under s. 134(5) of the Condominium Act.

Finding that the landlord and tenant breached the declaration and rules, the court awarded the applicant $87,810.09 in costs, holding the respondents jointly and severally liable.

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.

The plaintiff contractor brought a motion for summary judgment against the defendant property owner for unpaid invoices relating to balcony restoration work.

The defendant opposed the motion and brought a motion for summary judgment against the third-party engineer for contribution and indemnity, while the engineer sought summary judgment dismissing the third-party claim.

The court dismissed all motions, finding that conflicting evidence regarding whether the additional work and waterproofing were authorized created a genuine issue requiring a trial that could not be resolved without viva voce evidence and credibility findings.

The moving party sought leave to amend its pleading in a construction deficiencies action arising from a condominium conversion project, including adding a structural engineering firm as a new defendant and pleading economic loss based on dangerous defects.

The court held that, even assuming a Bird-type pure economic loss claim was available, the proposed claim against the new defendant was discoverable at least by the time the original statement of claim was issued, and was therefore barred by the two-year limitation period under the Limitations Act, 2002.

The later expert report did not postpone discoverability, as certainty and a comprehensive understanding of the claim were not required.

Leave to add the proposed defendant was refused, while other unopposed or consented amendments were allowed.

The appellants appealed an order enforcing compliance with condominium rules under s. 134(1) of the Condominium Act, 1998.

The appellant tenant argued she was subjected to oppressive conduct by the condominium corporations.

The motion judge granted the compliance order, noting that no cross-application for an oppression remedy had been brought and that alleged oppressive conduct did not excuse breaching the rules.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion to grant the compliance order.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the defendants sought dismissal of a long‑standing civil action for delay.

The plaintiffs were required to show cause why the action should not be dismissed by demonstrating an acceptable explanation for the delay and the absence of non‑compensable prejudice to the defendants.

The court found substantial unexplained litigation delay and concluded that the plaintiffs failed to provide an acceptable explanation.

However, the defendants failed to establish actual non‑compensable prejudice affecting their ability to present their defence at trial.

The court allowed the action to proceed subject to strict conditions, including a deadline to restore the action to the trial list and limits on further discovery.

Following a finding of oppression against the respondent condominium corporation and an award of $30,000 in general damages, the applicant sought costs ranging from $34,138.90 to $41,413.28.

The respondent argued for costs fixed at $10,000.

The court considered the factors under Rule 57.01, noting the applicant's success but also criticizing the applicant's excessive damages claim, unreasonable settlement offer, and failure to adhere to page limits for costs submissions.

Costs were fixed at $20,000 all-inclusive.

The applicant brought an oppression application arising from prolonged noise and vibration from elevators and mechanical equipment affecting a condominium unit.

The court held that the condominium corporation failed to adequately repair and maintain the common elements after years of investigation with little meaningful action, and that its reliance on an alleged by-law issue concerning a converted room was a red herring.

Applying the oppression framework, the court found the applicant's reasonable expectations were breached and that the respondent's conduct amounted to oppression, unfair prejudice, and unfair disregard.

The court awarded $30,000 in damages, dismissed the records-production and $150 fee claims, and remained seized to supervise remedial steps.

Following the discontinuance of the plaintiffs' action, the court determined the costs payable to the defendants.

The plaintiffs had sought to discontinue the action without costs, which was denied.

The court awarded partial indemnity costs to the defendants for both the action and the motion, noting the plaintiffs' reprehensible conduct in continuing the action against personal defendants despite admitting it was commenced in error.

The plaintiffs were ordered to pay a total of $53,250 in costs to the various defendants.

This was a costs decision following a summary judgment motion.

The parties agreed that the responding party would pay $18,000 all-inclusive on a partial indemnity basis, but disputed whether that amount should be set off against an outstanding prior costs award from a separate motion.

The court declined to order a set-off because the earlier award related to a different motion and there could be a dispute over interest on that earlier award.

The agreed costs award remained payable without set-off.