DATE: 20051202
DOCKET: C43488
COURT OF APPEAL FOR ONTARIO
RE:
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 949 (Applicant (Appellant)) – and – NANCY STAIB (Respondent (Respondent in Appeal))
BEFORE:
CRONK, ARMSTRONG and LANG JJ.A.
COUNSEL:
Mark H. Arnold and Christopher J. Jaglowitz
for the appellant
Benjamin J. Rutherford
for the respondent
HEARD & RELEASED ORALLY:
November 25, 2005
On appeal from the judgment of Justice Harriet Sachs of the Superior Court of Justice dated April 28, 2005.
E N D O R S E M E N T
[1] In our view, on the record in this case, there is no basis upon which to interfere with the application judge’s discretionary decision to deny the relief sought by the appellant. The respondent did not challenge the validity of the “no pets” policy in the declarations of the appellant condominium corporation. Rather, she asserted that the policy should not be enforced against her in the particular circumstances of this case. We agree.
[2] The uncontradicted evidence before the application judge included the fact that the respondent had resided in her condominium with her cat for more than 10 years; the appellant’s maintenance personnel had been in her condominium throughout that 10 year period; the cat was “invisible” to other unit holders, but there was no suggestion that it was “invisible” to the maintenance personnel; and the appellant reached a decision only in 2004 to step-up enforcement of its “no pets” policy.
[3] In our view, given these facts, it would have been inequitable for the application judge to make the requested compliance order.
[4] For these reasons, the appeal is dismissed. The respondent is entitled to her costs of the proceedings before the application judge in the amount of $3,000, as fixed by the application judge. The respondent is also entitled to her costs of this appeal on the partial indemnity scale, fixed in the total amount of $1,930.75, inclusive of disbursements and Goods and Services Tax.
“E.A. Cronk J.A.”
“Robert P. Armstrong J.A.”
“S.E. Lang J.A.”