Halton Standard Condominium Corp. No.617 v. Roberts, 2022 ONSC 1477

CITATION: Halton Standard Condominium Corp. No.617 v. Roberts, 2022 ONSC 1477

DIVISIONAL COURT FILE NO.: 21-0025

DATE: 20220308

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Heeney, Backhouse, Gibson JJ.

BETWEEN:

Halton Standard Condominium Corp. No.617

Appellant

– and –

Linda Roberts

Respondent

Eric Kerson and Jamie Cockburn for the Appellant

Unrepresented

HEARD by videoconference at Brampton on March 7, 2022

Nature of the Appeal

1Halton Standard Condominium Corporation No. 617 (the “Appellant”) appeals the award of costs from a decision of Member Patricia McQuaid of the Ontario Condominium Authority Tribunal (“CAT”). In the decision, the Member dismissed the Respondent’s request for enforcement of the condominium’s governing documents through removal of a portable basketball net. Costs of $200 were awarded against the Appellant. The grounds given for the award of costs were that the Respondent’s claim was novel and within a new area of jurisdiction for the CAT, and that the Respondent was not unreasonable in pursuing the dispute despite being unsuccessful.

2The Respondent did not file any responding material and did not appear at the hearing of this appeal.

Court’s Jurisdiction:

3Under section 1.46(2) of the Condominium Act, 1998, S.O. 1998, c. 19, a party to a case at the CAT can appeal a decision or order issued by the CAT to the Divisional Court on a question of law.

Standard of Review:

4As this appeal may be brought on a question of law only, the standard of review is correctness pursuant to Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

5Rule 45 of the Condominium Authority Tribunal Rules of Practice provides:

45. Recovery of Fees and Expenses

45.1 The CAT may order a User to pay to another User or the CAT any reasonable expenses or other costs related to the use of the CAT, including:

(a) any fees paid to the CAT by the other User;

(b) another User’s expenses or other costs that were directly related to this other User’s participation in the Case; and,

(c) costs that were directly related to a User’s behaviour during the Case that was unreasonable, for an improper purpose, or that caused an unreasonable delay.

45.2 If a Case is not resolved by Settlement Agreement or Consent Order and a CAT Member makes a final Decision, the unsuccessful User will be required to pay the successful User’s CAT fees and reasonable dispute-related expenses, unless the CAT member decides otherwise. This does not include legal fees.

45.3 A User who fails to pay any amounts ordered to be paid to the CAT may not file a new Application until all outstanding amounts have been paid.

46. Legal Fees Generally Not Recoverable

46.1 The CAT will not order a User to pay to another User any fees charged by that User’s lawyer or paralegal, unless there are exceptional reasons to do so.

6The Appellant concedes that costs are highly discretionary and that the costs decision is entitled to significant deference on appeal. Nevertheless, it is submitted that CAT erred by failing to consider relevant factors in making an award of costs against the successful party.

7The novelty and reasonableness of bringing the claim may be relevant factors which would have supported no costs being awarded against the Respondent, the unsuccessful party, but are not relevant factors in support of an award of costs against the successful party, the Appellant. In the absence of a finding of bad faith or misconduct, it was an error of law to award costs against the Appellant.

8Accordingly, the appeal is allowed and the costs order is set aside.

9As no costs are sought of the appeal, none are awarded.

Heeney J.

Backhouse J.

Gibson J.

Released: March 8, 2022

CITATION: Halton Standard Condominium Corp. No.617 v. Roberts, 2022 ONSC 1477

DIVISIONAL COURT FILE NO.: 21-0025