Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200110 DOCKET: M50995 (C66339)

Paciocco, Harvison Young and Zarnett JJ.A.

BETWEEN

Jean Temedio Applicant (Appellant/Responding Party)

and

Niagara North Condominium Corporation No. 6 and Simpson Wigle Law LLP Respondents (Respondents/Moving Parties)

Counsel: Erik Savas, for the appellant Benjamin J. Rutherford, for the respondents

Heard: In writing

Reasons for Decision

[1] Before this panel, Niagara North Condominium Corporation No. 6 (“Niagara”) and Simpson Wigle Law LLP (together referred to as the “respondents/moving parties”) unsuccessfully defended an appeal brought by Jean Temedio (*Temedio v. Niagara North Condominium Corporation No. 6*, 2019 ONCA 762). In that appeal decision, this panel ordered that an application judge, McArthur J., erred by failing to find special circumstances entitling Ms. Temedio to conduct an otherwise out-of-time assessment of Simpson Wigle Law LLP’s accounts, which were incurred in the enforcement of by-law provisions that Ms. Temedio was allegedly violating. Although those legal accounts were incurred by Niagara, Niagara claims that Ms. Temedio is obliged to pay them pursuant to s. 134 of the *Condominium Act, 1998*, S.O. 1998, c. 19 and the condominium by-laws governing Ms. Temedio’s ownership of a condominium in a building owned by Niagara.

[2] The respondents/moving parties now ask this panel to exercise this court’s exceptional authority to reconsider its special circumstance finding, and hence the outcome of its decision. They contend that reconsideration is clearly in the interests of justice because this panel relied on a special circumstance that Ms. Temedio had not put before the application judge or the appeal panel, and that the respondents/moving parties could have answered conclusively had it known this circumstance was going to be considered. Specifically, in finding special circumstances, this panel relied upon the decision of an earlier application judge, Taylor J. The impugned passages from this court’s appeal decision read:

[30] Similarly, a consideration of the length of time spent arguing the application, the number of pages of materials filed, or whether Ms. Temedio’s counsel correctly predicted how large the Corporation’s claim for legal fees would be, are not determinative of whether special circumstances exist for Ms. Temedio to assess the bills. This is especially so given that Taylor J. made a finding about why the Corporation’s legal bills may have risen to what they were, which raise questions about the fees charged. The application judge failed to take this into account.

[31] Taylor J. voiced his disapproval of the conduct of the Corporation in seeking the extreme remedy of eviction (which the Corporation did not obtain) and observed that a less heavy-handed approach on its part might have avoided litigation altogether. Ms. Temedio was on the receiving end of that unsuccessful strategy and approach, yet to the extent the legal bills to the Corporation included time spent on it, Ms. Temedio is being asked to pay for it. The extent to which the fees charged may include amounts for pursuing the failed eviction strategy and the heavy-handed approach raise questions about the amount of the legal bills. So too does the fact that Taylor J. limited the Corporation to an award of $2,500 in costs for the compliance proceeding; this also raises a question about the total fees of $52,000 charged for that proceeding.

[3] We deny the application for reconsideration. The appeal was from an application in which Ms. Temedio argued that special circumstances existed because the accounts she was being told to pay were excessive. In the appeal, Ms. Temedio pleaded and argued that the application judge erred in not finding special circumstances. The reasonableness of the accounts as a special consideration was therefore squarely before this court.

[4] There is clear relevance between the findings made by an application judge relating to legal costs and the reasonableness of legal costs. Taylor J.’s decision on costs was referenced in the materials filed by both parties in this court and before the application judge. The respondents’/moving parties’ factum on appeal described Taylor J.’s decision in detail, including the costs decision he made.

[5] Moreover, the decision of Taylor J. was but one of several factors relied upon by this panel and was offered in support of the more general conclusion that the time spent arguing an application and the number of pages of material filed cannot be determinative of whether special circumstances exist. Taylor J.’s ruling was not decisive in the appeal.

[6] Even if it had been true that the respondents/moving parties were not reasonably alerted to the materiality of Taylor J.’s decision during the appeal, the information that the respondents/moving parties seek to rely on could not have affected the result.

[7] First, the challenges the respondents/moving parties make to the propriety and reasonableness of the decision of Taylor J. represent an improper collateral attack on that decision, which was never appealed nor reviewed. Those submissions are not properly before this panel.

[8] Second, proof that the respondents/moving parties made offers to settle the litigation that Ms. Temedio did not accept provides no answer to whether there were special circumstances to justify an assessment, whatever the relevance of the offers to settle might be on an ultimate assessment. Taylor J.’s point was that had the respondents/moving parties taken a less heavy-handed approach, the litigation that generated the bulk of the accounts could have been avoided. The fact that the respondents/moving parties offered to settle the litigation that Taylor J. considered to have been unnecessarily provoked by the respondents/moving parties cannot answer the material concern that costs incurred may not have been necessary.

[9] The application for reconsideration is denied. The parties will have ten days following the release of this decision to provide costs submission not to exceed three pages, as well as bills of costs relating to the costs for of this motion.

“David M. Paciocco J.A.” “Harvison Young J.A.” “B. Zarnett J.A.”