DATE: 20060210

DOCKET: C43336

COURT OF APPEAL FOR ONTARIO

RE:

METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 1021 (Applicant (Respondent)) – and – METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 1008 and METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 1001 (Respondents (Appellants))

BEFORE:

SIMMONS, CRONK and ROULEAU JJ.A.

COUNSEL:

Douglas Levitt

for the appellant

Patricia M. Conway

for the respondent

HEARD & RELEASED ORALLY:

February 6, 2006

On appeal from the order of Justice Wailan Low of the Superior Court of Justice, dated February 2, 2005.

E N D O R S E M E N T

[1] We conclude that this appeal must be dismissed for the following reasons.

[2] The applicable principles of construction require that paras. 2(b)(iv) and 2(c) of Schedule “G” to the cost-sharing agreement at issue in this case be read, to the extent possible, harmoniously so as to accord meaning to both paragraphs. Moreover, in our view, paras. 1 and 2 of Schedule “G”, which both deal with hydroelectric services, must be read together.

[3] Paragraph 2(b) sets out the “Proportionate Share” of the bulk hydro bill payable by each of the three condominium corporations. Paragraph 2(b)(iv) expressly provides that the costs associated with the “Garage” are to be allocated solely to the appellant, Metropolitan Toronto Condominium Corporation No. 1008. In the context of this cost-sharing agreement, including, in particular, Schedule “G” thereto, the word “Garage” enjoys an expansive meaning. It is defined under Article 2.01 of the agreement as having two component parts: the “Parking Garage” and the “Service Garage”. However, this differentiation between the component parts of the “Garage” is expressed under Article 2.01 to be “for purposes of interpreting Schedule ‘E’” only.

[4] Thus, the use of the word “Garage” in para. 2(b)(iv) of Schedule “G” suggests that this term embraces costs associated with both components of the “Garage” facility.

[5] Although para. 2(c) of Schedule “G” refers to the proportionate amount of hydroelectric consumption allocated to the “Service Garage”, para. 2 as a whole is directed at the intended meaning of the “Proportionate Share” of the bulk hydro bill payable by each condominium corporation under para. 2(b).

[6] In this context, the concluding language of para. 2(c) can be understood as signalling that the allocation of the bulk hydro bill costs attributable to the “Service Garage” was taken into account by the parties and included in the cost allocations set out in para. 2(b). Read in this fashion, the concluding language of para. 2(c) indicates the intention of the parties that the percentage allocations in para. 2(b) reflect the three condominiums’ anticipated hydro consumption in both the parking and the service components of the “Garage”.

[7] This interpretation of para. 2(c) results in a harmonious construction of paras. 2(b)(iv) and 2(c) of Schedule “G” that accords a complementary and integrated meaning to each, as identified by the application judge. It is also consistent with para. 1 of Schedule “G”, which recognizes that the applicable building was designed and constructed with only one bulk hydro meter. In contrast, the interpretation of para. 2 of Schedule “G” advanced by the arbitrator is inconsistent with this design feature of the building because it requires installation of separate hydro meters in the parking and service areas of the “Garage” and separate future monitoring of hydro consumption in each area. These requirements are neither provided for, nor contemplated under Schedule “G”.

[8] Although the appellant also relies on the note contained in Schedule “E” to the agreement to argue that the cost-sharing approach set out in that note reflects the approach contemplated by para. 2 of Schedule “G”, this note has the opposite interpretive effect. The specific inclusion of the note in Schedule “E” and its absence in Schedule “G” suggests that its omission in Schedule “G” was deliberate and that the calculation specified in the note was intended to apply only to Schedule “E”.

[9] Finally, we note that to the extent that the cost allocations under para. 2 of Schedule “G” may result in unfairness, these may be revisited under the process set out in the agreement.

[10] We conclude, therefore, that the application judge was correct to allow the appeal from the arbitrator’s award. Paragraphs. 2(b)(iv) and 2(c) of Schedule “G” to the agreement are clear. They dictate the cost allocations result detailed by the application judge.

[11] Accordingly, the appeal is dismissed. The respondent is entitled to its costs of the appeal fixed, as agreed by counsel, in the sum of $4025.50, inclusive of disbursements and applicable G.S.T.

“J.M. Simmons J.A.”

“E.A. Cronk J.A.”

“P.S. Rouleau J.A.”