Court of Appeal for Ontario

Date: 2018-08-21 Docket: C64829

Justices: Sharpe, Juriansz and Roberts JJ.A.

Between

Nuala Donly Freund Applicant (Appellant)

and

Toronto Standard Condominium Corporation No. 1703 Respondent (Respondent)

Counsel

Jordan Goldblatt, for the appellant

Mark H. Arnold, for the respondent

Heard: August 17, 2018

Appeal Information

On appeal from the judgment of Justice J.A. Desotti of the Superior Court of Justice, dated December 14, 2017, with reasons reported at 2017 ONSC 7169, and on leave to cross-appeal from the costs order dated February 5, 2018, with reasons reported at 2018 ONSC 840.

Reasons for Decision

Background

[1] The appellant appeals from the dismissal of her application under ss. 119 and 135 of the Condominium Act, 1998, S.O. 1998, c. 19.

[2] The application arises out of the appellant's objection to the renovations that the respondent proposed to carry out to the condominium units that formed part of the condominium's hotel rental pool and to the removal of her unit from the pool when she refused to permit the renovations to her unit to bring it up to the luxury standard mandated by the respondent and the other participants in the pool. The appellant commenced her application following her unsuccessful arbitration concerning the respondent's right to require the renovations as a condition of her unit remaining in the pool.

Issues on Appeal

[3] The appellant submits that the application judge erred in dismissing her application on the basis that she lacked standing to bring her application because she was no longer the owner of her unit. Second, the appellant maintains that the application judge found that the respondent was in breach of s. 19 of its own Declaration because it failed to obtain an architect or an engineer certificate for the proposed renovations. As a result, the application judge erred in concluding that none of the respondent's impugned conduct was oppressive, threatening or unfairly prejudicial, nor unfairly disregarded the interests of the appellant.

[4] We find it necessary to deal with only the second submission.

Analysis

[5] The application judge did not determine there was a breach of the Declaration. He found no oppressive conduct by the respondent. The appellant failed to demonstrate that the proposed renovations required a certificate from an architect or engineer. The application judge concluded that even if they did, the lack of a certificate did not amount to a breach of contract, as conceded by the appellant's counsel on the application. He accepted the findings of the arbitrator that there was no breach by the respondent of its obligations in requiring the unit renovations as a condition of remaining in the hotel rental pool and that it was the appellant who was in breach of her obligation to maintain her unit in accordance with the luxury standard recognized and adopted by the other participating unit owners.

[6] We do not accept the appellant's submission that she would not have incurred the legal costs related to the arbitration had the certificates been provided as she says was required under the Declaration. As the application judge found, the appellant's real objection was the cost occasioned by the renovations, and she wanted to stay in the hotel rental pool without the renovations. The application judge determined that the appellant was not obliged to carry out the proposed renovations to her unit; however, she could not then insist on remaining in the hotel rental pool when her unit did not meet the requisite luxury standard of all the other units in the pool. Moreover, the appellant was not without choices in that she could rent out her unit in its current condition or use it as a residential suite, as contemplated by the Declaration.

[7] The application judge's conclusions were amply supported by the record and contain no reversible error.

[8] Given our reasons disposing of the appeal, it is not necessary to determine whether the application judge erred in holding that the appellant had no standing to bring her application because she was no longer a unit owner. However, we should not be taken as agreeing with or otherwise upholding the application judge's decision on this issue.

Disposition

[9] For these reasons, the appeal is dismissed.

Costs

[10] The respondent seeks costs on a substantial indemnity scale. It submits that this court should take into account a settlement offer made on the application below and find that this appeal represents the latest in a long series of unmeritorious proceedings instigated by the appellant's common law spouse against the respondent.

[11] We are not persuaded by these submissions. First, while unsuccessful, the appeal was not frivolous, vexatious or an abuse of process, and does not attract the extraordinary level of substantial indemnity costs. Further, we are not obliged or inclined to take into account a settlement offer that the application judge already considered in making his costs award. The respondent abandoned its cross-appeal of that costs award.

[12] Accordingly, the respondent is entitled to its partial indemnity costs in the amount of $15,000, including disbursements and all applicable taxes.

"Robert J. Sharpe J.A."

"R.G. Juriansz J.A."

"L.B. Roberts J.A."