Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210927 DOCKET: C69072

Watt, Benotto and Trotter JJ.A.

BETWEEN

Ottawa-Carleton Standard Condominium Corporation No. 671 Applicant (Respondent)

and

Anthony Marcus Friend and Henriette Friend Respondents (Appellants)

Counsel: Samuel Zakhour, for the appellants Cheryll Wood and David Lu, for the respondent

Heard: September 22, 2021 by video conference

On appeal from the order of Justice Paul B. Kane of the Superior Court of Justice dated June 4, 2020.

Reasons for Decision

[1] The appellants are condominium owners. The appellant, Mr. Friend, has a long-standing dispute with the condominium corporation’s Board of Directors and employees, dating back to 2011. He has refused to follow the condominium’s by-laws and rules. He has interfered with contractors attempting to carry out work in the building. He has engaged in a campaign of harassment and rude and demeaning behaviour aimed at members of the Board of Directors and employees of the condominium. He has physically accosted the President of the Board.

[2] In 2019, the respondent obtained an interim injunction that restricted Mr. Friend’s ability to communicate with the people he has harassed and/or accosted. He persisted in his behaviour. Consequently, the respondent condominium corporation brought an application under s. 134(1) of the Condominium Act, 1998, S.O. 1998, c. 19, and r. 14.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking a permanent injunction against Mr. Friend.

[3] The application judge found that Mr. Friend was in violation of s. 117 of the Condominium Act, which provides: “No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.” The application judge held that “injury” includes psychological harm.

[4] The application judge further held that, “Mr. Friend’s persistent and ongoing breaches with aggression of the Act and the Condominium’s declaration and rules must be halted.” He ordered that Mr. Friend “cease and desist in conduct that contravenes the Act and/or the Condominiums’ declaration, by-laws and rules”. He restricted Mr. Friend’s ability to communicate with members of the condominium community, including their families. A number of exceptions, however, were built into this prohibition.

[5] The appellants challenge the legality and appropriateness of this order. They also apply to adduce fresh evidence in the form of Mr. Friend’s affidavit in which he purports to show that he was treated unfairly at the hearing of the application. We admit the fresh evidence for this limited purpose. It is not admissible, and is irrelevant, to the substantive issues decided by the application judge.

[6] The appellants advance a number of grounds of appeal. They submit that the application judge had no jurisdiction to order a permanent injunction because there was no underlying action to which it could attach. We disagree. The application was properly brought under s. 134 of the Condominium Act and provided the jurisdictional footing for the order that was made.

[7] The appellants submit that the application judge erred in failing to apply the proper test for a permanent injunction. More specifically, the appellants submit that the trial judge failed to appreciate that the test for obtaining a permanent injunction is different from the test for an interlocutory injunction. While the trial judge did not specifically advert to the test he applied in making the order, the order that he made – limiting communication between Mr. Friend and various members of the condominium community – was authorized by s. 134(3) of the Condominium Act, which permits a judge to “grant such other relief as is fair and equitable in the circumstances.”

[8] The order was “fair and equitable” in the circumstances, based on the findings that the application judge made about Mr. Friend’s behaviour and its impact on those affected. Mr. Friend’s offensive conduct continued after the interim injunction was in place. This, in itself, amply justified the application judge’s order.

[9] The appellants submit that the proceedings were unfair because they were denied an adjournment. We disagree. The decision to grant an adjournment is a discretionary one that must be afforded deference on appeal. In this case, the application judge gave thorough reasons for refusing an adjournment, noting that the request was, “but one of a pattern of adjournment requests by Mr. Friend.”

[10] We also disagree with the submission that the proceeding was unfair because the application judge failed to consider Mr. Friend’s position on contentious matters. Mr. Friend did not file an affidavit; instead, he relied on a slide presentation and an affidavit filed in a related lien action. As the application judge said, “[m]uch of the materials filed by Mr. Friend do not respond to the issues on this application and instead recite his disputes with the Condominium dating back to 2011 and unrelated matters such as the Condominium’s 2019 Auditor’s Report.”

[11] Lastly, and although not pressed in oral submissions, the appellants submit that the application judge should have converted the proceeding to an action because there were facts in dispute. Again we do not agree. The material facts were either admitted to by Mr. Friend or simply not addressed. The application judge’s decision was reasonable.

[12] Accordingly, the appeal is dismissed. We award costs to the respondent in the amount of $12,500, inclusive of costs and disbursements.

“David Watt J.A.”

“M.L. Benotto J.A.”

“Gary Trotter J.A.”