COURT OF APPEAL FOR ONTARIO

CITATION: Hull v. Metropolitan Toronto Condominium Corporation No. 721, 2015 ONCA 307

DATE: 20150504

DOCKET: C59692

Simmons, Gillese and Rouleau JJ.A.

BETWEEN

Thomas Ian Hull

Applicant (Appellant)

and

Metropolitan Toronto Condominium Corporation No. 721,

Marshall Cohen and Bill Deluce

Respondents (Respondents in Appeal)

Counsel:

Michael A. Spears and Michael John Campbell, for the appellant

Lea Nebel and Varoujan Arman, for the respondents

Heard and released orally: April 28, 2015

On appeal from the judgment of Justice Kevin W. Whitaker of the Superior Court of Justice, dated October 28, 2014.

ENDORSEMENT

[1] The appellant appeals from an order dismissing his application for relief under ss. 134 and 135 of the Condominium Act, 1998, S.O. 1998, c. 19.

[2] For several reasons, we accept the appellant’s submissions that the application judge’s reasons are inadequate.

[3] First, the reasons fail to reflect that the application judge appreciated the issues raised on the application. Although the application judge lists six issues that were “in play”, his list is both incomplete and inaccurate. For example, the application judge described one of the issues as being that the appellant was “coerced and pressured into supporting a ‘special assessment’” when the appellant’s actual objection was that the special assessment was not properly authorized and that the condominium corporation should not have filed a lien against his property for failing to pay the assessment.

[4] Second, the application judge failed to set out the correct legal test for relief under s. 135 of the Condominium Act. The Act stipulates that the court may make an order “if the court determines that the conduct of an owner, [or] a corporation … is … oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant.” To the extent that the application judge referred to a test, he made the conclusory statement that he was “not persuaded that the [appellant] has been treated unfairly, in bad faith or in a discriminatory fashion.” At a minimum, the application judge erred by failing to refer to the “unfairly disregards the interests of the applicant” branch of the test, which was central to the issues on the application before him.

[5] Third, while the application judge concluded that there had been no breaches of the Act, he gives no basis for this conclusion. To reach this conclusion, he would have had to have made findings of fact, and this would have necessitated resolving conflicts in the evidence. This was not done. Moreover, this conclusion appears to be contradicted by the application judge’s earlier statement that deficiencies the appellant complained of had been remedied by the time the application was heard.

[6] Finally, the remedies under the Condominium Act are discretionary. Beyond expressing a conclusion, there is no indication in the application judge’s reasons as to how and on what basis he exercised any discretion.

[7] In these circumstances, where the application judge’s reasons contain virtually none of the components necessary to resolve this matter, fairness dictates that the application be remitted for a fresh hearing with costs of the initial hearing reserved to the judge on the new hearing.

[8] Costs of the appeal are to the appellant on a partial indemnity scale fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.

“Janet Simmons J.A.”

“Eileen E. Gillese J.A.”

“Paul Rouleau J.A.”