Court of Appeal for Ontario

Date: 2018-04-09

Docket: C64330

Judges: Hourigan, Pardu and Huscroft JJ.A.

Between

Carleton Condominium Corporation No. 396 Plaintiff/Respondent in Appeal

and

Claude Alain Burdet in Trust, Claude-Alain Burdet, 1457563 Ontario Corporation, 1457563 Ontario Corporation in Trust, Janet Sue Burdet and Nelson Street Law Offices Defendants/Appellants

and

L'Academie Christiane Sauve Inc. and International Beauty Depot Defendants

Counsel

Claude-Alain Burdet, for the appellants

Gary Boyd, for the respondent

Heard

April 5, 2018

On Appeal

On appeal from the order of Justice S. Gomery of the Superior Court of Justice, dated August 18, 2017.

Appeal Book Endorsement

[1] The appellants were found liable following a trial for condominium arrears owing to the respondent. Their appeal of that judgment to this court was unsuccessful, as was their motion for leave to appeal with the Supreme Court of Canada.

[2] The appellants brought a motion in the Superior Court pursuant to r. 59.06(2) to set aside the judgment and for an order for judgment in their favour. The motion judge dismissed that motion pursuant to r. 2.1.02(1), with costs fixed at $500 payable to the respondent.

[3] We see no basis to interfere with the order of the motion judge.

[4] We do not accept the submission that this court should interfere on the basis of a denial of procedural fairness. We agree that the motion judge should have either invited submissions or ordered explicitly that written submissions were not required. However, as we read her reasons she implicitly ordered that written submissions were not required. That decision was free from error.

[5] It is clear on the face of the r. 59.06(2) motion record that it is frivolous, vexatious and an abuse of process. The relief sought went well beyond what would have been permissible on such a motion. There were no new facts, as the very set-off issue argument made by the appellant now was made below before the trial judge. In any event, s. 84(3) of the Condominium Act provides that an owner is not exempt from the obligation to contribute to common expenses even if the owner is making a claim against the corporation. We also note that the appellants were well aware of the request by the respondent to have the case dismissed pursuant to r. 2.1.

[6] The appeal is dismissed with costs of the appeal payable by the appellants to the respondent in the all-inclusive sum of $16,000.