COURT OF APPEAL FOR ONTARIO

CITATION: Metropolitan Toronto Condominium Corporation No. 897 v. Bhanji, 2015 ONCA 765

DATE: 20151112

DOCKET: C59884

Hoy A.C.J.O., MacFarland and Lauwers JJ.A.

BETWEEN

Metropolitan Toronto Condominium Corporation No. 897, Metropolitan Toronto Condominium Corporation No. 880 and Metropolitan Toronto Condominium Corporation No. 934

Applicants (Respondents in Appeal)

and

Noreen Bhanji and Nasim Bhanji

Respondents (Appellants)

Counsel:

Shahzad Siddiqui, for the appellants

Megan Mackey, for the respondents

Heard and released orally: November 6, 2015

On appeal from the judgment of Justice Myers of the Superior Court of Justice, dated December 11, 2014.

ENDORSEMENT

[1] The appellant, Nasim Bhanji, is the owner of a condominium unit in a residential condominium complex known as The Palisades. The second appellant, Noreen Bhanji, is her daughter, and resides in the unit.

[2] The respondents – the condominium corporations which comprise the condominium complex – brought an application under s. 134(1) of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”) for an order enforcing compliance by the appellants with certain rules of the condominium complex. In response, the appellant, Noreen Bhanji, argued that she had been singled out and subjected to oppressive conduct by the respondents.

[3] On December 11, 2014, the motion judge granted the requested order. He noted that there were substantial credibility issues between the parties, but that he did not need to resolve whether the oppressive conduct that Noreen Bhanji alleged (and the respondents denied) had transpired. Nasim Bhanji had not brought a cross-application for an oppression remedy under s. 135(1) of the Act. If the respondents had engaged in such conduct, Nasim Bhanji had remedies available to her. The motion judge found the alleged oppressive conduct did not give Noreen Bhanji a licence to flout the rules of the condominium complex.

[4] On appeal, the appellants concede that Nasim Bhanji did not bring a cross-application for an oppression remedy under s. 135(1) of the Act and that, because Noreen Bhanji was a tenant, she could not do so.

[5] The appellants argue that the motion judge erred in law because he failed to consider whether relief, other than the order applied for, would have been fair and equitable in the circumstances. They submit that s. 134(3) of the Act required him to do so. Section 134(3) provides that, on an application for an order under s. 134(1), a judge may grant the order applied for or grant other relief, including “such other relief as is fair and equitable in the circumstances”. They submit that, given their unresolved allegations of oppressive conduct, granting the order applied for was not fair and equitable in the circumstances.

[6] We reject this argument.

[7] It was open to the motion judge to grant the order applied for under s. 134(1). He explained why he did so. Noreen Bhanji was in breach of the rules of the condominium complex. The alleged oppressive conduct did not give her a licence to breach those rules. There is no basis for this court to interfere with his exercise of discretion in granting the order.

[8] This appeal is accordingly dismissed.

[9] The respondents shall be entitled to the costs of the appeal, fixed in the amount of $7,500, inclusive of disbursements and HST.

“Alexandra Hoy A.C.J.O.”

“J. MacFarland J.A.”

“P. Lauwers J.A.”