Melinda Andrews

The plaintiffs, members of a co-tenancy committee, were entirely successful in their claim against the defendant for arrears under a Co-Tenancy Agreement.

They sought full indemnity costs of $87,875.37.

The court granted the full amount, finding the costs reasonable and proportionate based on contractual indemnification clauses, the Mortgages Act, analogous condominium jurisprudence, the plaintiffs' complete success, the defendant's refusal of a Rule 49 offer, and the defendant's conduct in relitigating issues.

The plaintiffs, members of a co-tenancy committee, sued a former owner for unpaid shared expenses under a Co-Tenancy Agreement governing a private townhouse community.

The defendant disputed the inclusion of certain expenses (e.g., retaining wall repair, legal fees, stair railings, pest control, electrical fire repair, committee indemnification, asphalt/interlock, courtyard improvements) as "Shared Expenses" and argued the claim was statute-barred by a two-year limitation period.

The court, applying a holistic contractual interpretation, found all disputed items to be valid Shared Expenses benefiting the community.

It also determined that a ten-year limitation period applied because the arrears constituted a charge on land under the Mortgages Act, and upheld the contractual interest rate of 15% per annum as not usurious.

Judgment was granted to the plaintiffs for the full amount of arrears and accrued interest, plus costs.

The appellant appealed the dismissal of her application under the Condominium Act, alleging the respondent corporation failed to properly maintain common elements and acted oppressively regarding a noise complaint from fans above her unit.

The Court of Appeal affirmed the application judge's finding that the corporation acted reasonably and complied with its statutory obligations, thus not breaching the appellant's reasonable expectations or acting oppressively.

The appeal was dismissed, and costs were awarded to the respondent.

Following the dismissal of the applicant unit owner's application regarding a noise complaint, the respondent condominium corporation sought full indemnity costs of $89,580.36.

The court rejected the respondent's argument that it was entitled to full indemnity costs under s. 134(5) of the Condominium Act, as the respondent was not an applicant.

However, because the applicant failed to accept a generous without-costs dismissal offer made by the respondent, the court awarded the respondent partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total costs award at $70,000.

The applicant unit owner sought an oppression remedy against the respondent condominium corporation, alleging it failed to repair and maintain common elements (exhaust fans) that were causing noise and vibration in her unit.

The court found that the corporation had regularly inspected and maintained the fans, and that the noise was not caused by a failure to repair.

The court also held that the corporation responded reasonably to the applicant's complaints over several years by hiring experts and replacing equipment, and therefore its conduct was not oppressive or unfairly prejudicial.

The appellants appealed a decision of the Superior Court of Justice dismissing their application and sought leave to appeal a costs order.

The Court of Appeal found that the application judge correctly identified and applied the applicable legal principles, and that section 6.2 of the Shared Property Agreement was enforceable.

The court upheld the costs order, finding that the respondents were entitled to indemnification of legal costs from the Common Fund under sections 3.7 and 11 of the Shared Property Agreement.

The appeal was dismissed and leave to appeal the costs order was refused.

The respondents were awarded costs on a substantial indemnity basis to be assessed.

This decision addresses a voir dire to determine the admissibility of police statements made by Marcia Gittens and Horace McCalla, who are charged with failing to provide the necessaries of life and criminal negligence causing bodily harm to their son.

The Crown sought to admit the statements, arguing voluntariness and constitutional compliance.

The defence contended that the statements were involuntary and obtained in violation of ss. 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found Ms. Gittens' statement inadmissible due to involuntariness, influenced by inducements, her emotional state, and police misrepresentations regarding the video recording and the duty to caution.

Additionally, her s. 10(b) Charter rights were breached when psychological detention crystallized during the interview, leading to exclusion under s. 24(2).

Conversely, Mr. McCalla's statement was deemed voluntary and admissible, as the police adequately informed him of his rights and potential legal jeopardy, and he was not found to be detained.

This decision addresses a costs motion following an application where the applicants unsuccessfully challenged the validity and enforceability of a co-tenancy agreement clause.

The co-tenancy committee members, who were respondents in the original application, sought substantial indemnity costs.

The court found that contractual indemnification clauses in the co-tenancy agreement entitled the committee to substantial indemnity costs.

The court awarded $90,000 in substantial indemnity costs against the applicants, inclusive of disbursements and HST, but declined to award costs against other self-represented respondents who did not actively participate in the application.

The applicants, owners of a townhouse in a building scheme, sought to discharge a restrictive covenant (s. 6.2 of a co-tenancy agreement) under s. 61(1) of the Conveyancing and Law of Property Act.

The covenant prohibited exterior alterations without co-tenancy committee approval.

The applicants argued the provision was spent, ambiguous, or obsolete.

The court dismissed the application, finding that the covenant was not spent and had continuing practical value for maintaining the community's architectural integrity.

It was not ambiguous when interpreted within the context of a building scheme's community of interests, and minor inconsistencies in its application did not constitute inherent ambiguity.

Furthermore, previous alleged violations had not rendered the provision obsolete as they had not eroded the overall character of the community.

The defendant was charged with assault causing bodily harm following an incident with his intimate partner.

The complainant alleged the defendant slapped her multiple times and punched her in the eye, causing facial injuries.

The defendant testified that the complainant's injuries resulted from her accidental fall as she ran from the apartment.

The trial judge found the complainant's evidence unreliable due to multiple inconsistencies, contradictions, and misrepresentations regarding her alcohol consumption, the apartment ransacking, and other material facts.

Despite the complainant's injuries, the judge found the defendant's account plausible and consistent, and acquitted him based on reasonable doubt.