COURT OF APPEAL FOR ONTARIO DATE: 20240102 DOCKET: COA-23-CV-0348
Roberts, Sossin and Dawe JJ.A.
BETWEEN
York Condominium Corporation No. 221 Applicant (Respondent)
and
Christine Beryl Mazur and Julian Eugene Mazur Respondents (Appellants)
Counsel: Megan Molloy and Jonathan Wright, for the respondent Shahryar Mazaheri, for the appellants
Heard: December 20, 2023
On appeal from the order of Justice Marie-Andrée Vermette of the Ontario Superior Court of Justice, dated February 24, 2023.
REASONS FOR DECISION
[1] This appeal concerns a dispute between a condominium corporation and the owners of a condominium unit relating to non-compliance with fire safety rules. The dispute culminated in an order granting the condominium corporation, the respondent on this appeal, a writ of possession over the unit. The appellants, who are the unit owners, appeal that order.
[2] The appellants also sought to introduce fresh evidence on appeal by way of motion, but only served materials on the respondent and sought to file them with the court on the day before this appeal. The respondent objected to the court’s consideration of the motion. We concluded that the fresh evidence motion should not be heard, given the failure of the appellants to bring the motion in a timely fashion.
[3] At the hearing, we dismissed the appeal for reasons to follow. These are our reasons.
OVERVIEW
[4] The court order appealed from granted a writ of possession over the appellants’ condominium unit at York Condominium Corporation No. 221 (YCC 221) to the respondent, along with the right to list and sell the unit. The court ordered that upon completion of the sale, the proceeds of the sale, less payment of all encumbrances on title, be paid into the court. Finally, the court ordered that the appellants shall not purchase, lease, or reside in any other unit at YCC 221.
[5] This dispute has a long procedural history that is not necessary to set out in detail for the purposes of this appeal. In September 2021, YCC 221 commenced an application seeking an order compelling the appellants to comply with a Fire Inspection Order of the Toronto Fire Services issued in April 2020. The Fire Inspection Order confirmed that the appellants’ unit was not in compliance with fire safety rules, that combustible material had been accumulated in the unit so as to constitute a fire hazard, and required certain actions to be taken to bring the unit in compliance with those rules.
[6] On January 7, 2022, Koehnen J. granted YCC 221’s application and issued an order requiring the appellants to bring their unit into compliance with the Fire Inspection Order (the “Koehnen J. Order”).
[7] In September 2022, YCC 221 moved for relief on the basis that the appellants had not complied with Koehnen J.’s order. By an order dated November 22, 2022, the motion judge gave the appellants 60 days to comply with the Koehnen J. Order, characterizing this as a “last chance order,” and stating that if the appellants continued to fail to comply “they should fully expect a forced sale of the Unit to be ordered in the absence of exceptional circumstances.”
[8] When the case came back before the motion judge on February 24, 2023, she found that the appellants had failed to comply with her “last chance” order, despite having had ample opportunity to do so.
[9] The motion judge determined further that the appellants had failed to demonstrate that they were capable of abiding by the safety rules which govern conduct at YCC 221, including the provisions of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), and that this failure was “serious and persistent and could have a tragic impact on their community.” Given the long and continuous breach of the Koehnen J. Order, the motion judge concluded that “the forced sale of the Unit is justified in the unusual circumstances of this case.”
ISSUES
[10] The appellants raise four issues on appeal:
i. Did the motion judge err in law by failing to state and apply the relevant two-part test for oppression under the Act?
ii. Did the motion judge err in law by failing to consider the relevant sections of the Act (ss. 17(3), 102, 117, 119, and 134) and case law that places the legal obligation on a condominium corporation, and not individual owners, to enforce its governing documents and take reasonable steps to enforce them?
iii. Was it an error of law for the motion judge to suggest that the appellants had not made any efforts to comply with the Fire Code when the evidence suggested that “concerted effort” was made by the appellants?
iv. Is there sufficient evidence for this court to apply the required legal test and award the relief sought by the appellants, specifically relating to oppression and its associated remedies?
ANALYSIS
[11] The respondent argues that none of these grounds of appeal have merit, that they amount to an attempt to relitigate the motion, and they introduce new issues on appeal. The respondent notes that, with respect to the first and fourth issues, the appellants raised the oppression remedy in s. 135 of the Act for the first time in their factum on appeal, that it was not argued before the motion judge, and that it was not included in the appellants’ notice of appeal.
[12] The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for this rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at trial if it had been known that the matter would be an issue on appeal: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18, citing Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, at para. 3.
[13] There is no basis to depart from the general rule against entertaining new issues on appeal in this case. No explanation has been provided for why the oppression arguments, as well as the argument concerning the obligations of the condominium corporation to ensure compliance (the second issue listed above), were not previously raised, nor has leave been sought to raise them. The motion judge’s factual findings, which are entitled to deference, do not in any event support the appellants’ claim that they would have had grounds for obtaining a remedy under s. 135 of the Act, even if they had made a proper application. Rather, her reasons make it clear that the appellants repeatedly failed to comply with the Fire Inspection Order, even after YCC 221 obtained a compliance order under s. 134 of the Act.
[14] For these reasons, the first, second, and fourth grounds of appeal fail.
[15] Concerning the third ground of appeal, the appellants’ notice of appeal and oral submissions focused on the motion judge’s alleged errors in relation to findings of fact and the weighing of evidence, in particular relating to the affidavit evidence produced by the appellants. For example, the appellants argue that the motion judge erred in failing to give proper weight to the fact that the appellants are elderly, that they receive support from the Ontario Disability Support Program and have a son who has been diagnosed with autism and attention deficit hyperactivity disorder. According to the appellants, these facts, among others, explain why they had difficulties fully complying with the fire regulations.
[16] The motion judge found in her February 24, 2023 endorsement that, while the appellants were now seeking an additional opportunity to comply with the Koehnen J. Order, they had provided no valid explanation for why that Order had not been complied with beforehand. She added, “there is no evidence before me of exceptional circumstances, medical issues or financial hardship (while financial hardship is generally alleged, there is no evidence before me regarding [the appellants’] financial resources and situation).”
[17] The appellants contend that the motion judge had affidavit evidence before her of “exceptional circumstances” to which she should have referred.
[18] It is well-established that a judge in determining factual issues may accept all, some, or none of the evidence tendered by the parties. The affidavit evidence tendered by the appellants referred in passing to their circumstances. That evidence, however, did not connect those circumstances to any explanation for their non-compliance with the Koehnen J. Order, or the motion judge’s November 2022 “last chance” order. For example, Julian Mazur gave evidence that the appellants’ son has been diagnosed as being on the autism spectrum and at times lived in the unit, but provided no explanation for why their son’s medical condition impaired their ability to comply with the Koehnen J. Order.
[19] On the record before her, it was open to the motion judge to conclude that the appellants had failed to provide evidence of “exceptional circumstances” that could excuse the serious risk their non-compliance with the Koehnen J. Order created for the condominium community.
[20] The appellants further argue that the motion judge’s approach was in error because it was “singularly focused” on serious allegations made by the respondent against the appellants that were not substantiated by the evidence. We reject this argument. There is no basis for this claim in the reasons of the motion judge.
[21] We are not persuaded that the motion judge made any reversible errors. In effect, the appellants are asking this court to reweigh the evidence and rehear the motion. This is not our role.
[22] The only issue before the motion judge was whether the appellants were in breach of the Koehnen J. Order, and if so, what remedy was appropriate in light of the breach. The motion judge stated that it was clear from the evidence that the Koehnen J. Order had not been complied with at the time of her decision, and that the appellants appeared to concede this fact by arguing that partial compliance should be sufficient, given the exceptional circumstances of this case.
[23] We see no basis to intervene with the motion judge’s conclusions that the appellants failed to comply with clear court orders in relation to fire safety measures, and that the orders issued were warranted under the Act. Her findings address questions of mixed fact and law, were open to her on the record, and are entitled to deference.
DISPOSITION
[24] Accordingly, the appeal is dismissed.
[25] The respondent is entitled to its costs in the amount of $12,000 all-inclusive, on a partial indemnity basis. By an October 11, 2023 order of this court, the appellants were awarded $2,000 in costs in relation to the respondent's abandoned motion for security for costs of the appeal. This is to be set off against the motion judge's costs order. It does not affect the quantum of costs ordered on the appeal.
“L.B. Roberts J.A.”
“L. Sossin J.A.”
“J. Dawe J.A.”
