CITATION: Philosophe v. TSCC No. 2804, 2023 ONSC 5907
DIVISIONAL COURT FILE NO.: 159/23 DATE: 20231020
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sutherland, Leiper and Centa JJ.
BETWEEN:
Ilan Philosophe
Appellant
– and –
Toronto Standard Condominium Corporation No. 2804 and Frank Micoli
Respondent
Jonathan Roth, for the appellant
Jonathan Miller, for the respondent TSCC No. 2804
Frank Micoli, Self-represented
HEARD at Toronto: October 17, 2023
Robert Centa J.
Introduction
[1] Ilan Philosophe was a tenant in a condominium unit owned by Frank Micoli. Toronto Standard Condominium Corporation No. 2804 applied to the Condominium Authority Tribunal seeking orders to restrain Mr. Philosophe’s conduct and to sanction Mr. Micoli’s failure to ensure his tenant’s compliance with the Corporation’s rules of conduct. The Tribunal made a number of orders, including an order that held Mr. Philosophe and Mr. Micoli jointly and severally liable to pay $18,239.60 in compensation to the Corporation. Mr. Philosophe has appealed this portion of the Tribunal’s order.
[2] There are a number of problems with the Tribunal’s order. The Corporation did not request this relief in its application to the Tribunal or in its opening submissions at the hearing. The Tribunal’s procedural order that listed the issues to be determined at the hearing made no reference to Mr. Philosophe’s potential liability. In short, Mr. Philosophe had no idea that he faced this possible financial liability until he read the last two paragraphs of the Corporation’s closing submissions. Mr. Philosophe submits that the Tribunal committed an error of law by making him jointly and severally liable to pay compensation to the Corporation. The Corporation agrees that the Tribunal erred and agrees that the Tribunal’s order should be varied.
[3] At the conclusion of the hearing, the panel announced that the appeal would be allowed and the order of the Tribunal would be varied to make Mr. Micoli solely liable to pay the $18,239.60 in compensation to the Corporation. The reasons below explain why I conclude that the Tribunal erred in law by denying procedural fairness to Mr. Philosophe.
Application to the Tribunal
[4] On November 10, 2021, the Corporation wrote to Mr. Philosophe to ask him to address complaints about his behaviour, noise levels, and other nuisances. In May 2022, with the situation still unresolved, the Corporation applied to the Tribunal seeking relief against both Mr. Philosophe and the unit owner, Mr. Micoli.
[5] The dispute resolution process at the Tribunal has three stages. Stage 1 – Negotiation, involves an on-line negotiation process where the parties exchange settlement offers, documents, and messages with each other. If the negotiations are unsuccessful, an applicant may escalate the dispute to Stage 2 – Mediation. At Stage 2, the Tribunal appoints a mediator to assist the parties to resolve their dispute. If the mediation is unsuccessful, an applicant may escalate the dispute to Stage 3 – Tribunal Decision. In such cases, the mediator prepares a Stage 2 Summary and Order that identifies the issues that the Tribunal will decide at the Stage 3 hearing.
[6] In its initial application, the Corporation sought a broad range of relief, including an order that Mr. Micoli pay all of the Corporation’s costs on a full indemnity basis. The Corporation sought no monetary relief from Mr. Philosophe. The Corporation sought the following relief:
a declaration that [Mr. Philosophe] is in breach of the Corporation's Governing Documents by creating repeated noise disturbances which unreasonably interferes with and disturbs the comfort or quiet enjoyment of other units and the common elements;
a declaration that [Mr. Micoli] is in breach of the Corporation's Declaration for failing to ensure the compliance of his tenant with the Act and the Corporation's Governing Documents;
an Order evicting [Mr. Philosophe] from the Unit for the continuous breach of the Corporation's Governing Documents;
alternatively, an order for the immediate and permanent compliance of [Mr. Micoli] and [Mr. Philosophe] of their respective obligations under the Act and the Governing Documents; and
an order directing [Mr. Micoli] to pay all of the Corporation's costs associated with bringing this proceeding on a full indemnity basis.
[7] The parties failed to resolve their dispute at either of the first two stages. On October 20, 2022, the Tribunal issued its Stage 2 Summary and Order “to help prepare this case to be heard in Stage 3 (Tribunal Decision).” The order specified the issues that the Tribunal would consider at the Stage 3 hearing and warned the parties that the specified issues “are the only ones that this Tribunal can decide.” The Tribunal order did not identify Mr. Philosophe’s potential financial liability as an issue to be determined. The order stated as follows:
The [Corporation] asserts that Mr. Micoli is responsible for Mr. Philosophe's compliance with its Declaration and Rules, and to indemnify it for any failure to do so.
- The issues to be decided in Stage 3 - Tribunal Decision are:
a) Is the [Corporation] entitled to declarations:
i. That Mr. Philosophe is in breach of its Governing Documents by creating repeated noise disturbances that unreasonably interfere with and disturb the comfort or quiet enjoyment of other units and the comment elements;
ii. That Mr. Micoli is in breach of its Declaration for failing to ensure his tenant's compliance with the Condominium Act, 1998 and the Applicant's Governing Documents
b) Is the [Corporation] entitled to:
i. An Order evicting Mr. Philosophe from the unit for continuous breach of its Governing Documents;
ii. Alternatively, an Order for permanent compliance by Mr. Micoli and Mr. Philosophe with their respective obligations under the Condominium Act, 1998 and its Governing Documents
iii. An Order directing Mr. Micoli to pay all of its costs associated with bringing this proceeding, on a full indemnity basis.
- The Parties should not refer to any other disputes they may have with each other in Stage 3, except to any extent they may be relevant to the issues formally noted above - which are the only issues that this Tribunal can decide. [emphasis added].
[8] On November 14, 2022, the Corporation uploaded its opening submissions for the hearing. The Corporation’s requested relief mirrored the issues listed in the Tribunal’s Stage 2 Summary and Order. Most importantly, the Corporation sought an order directing Mr. Micoli, not Mr. Philosophe, to pay it compensation for its costs. The Corporation did not seek any orders requiring Mr. Philosophe to pay it any damages, costs, or compensation of any kind. The Corporation’s only request for compensation read as follows:
- An Order directing [Mr. Micoli] to pay all of the Corporation's costs associated with enforcing the Act and Governing Documents and bringing this proceeding for compliance by [Mr. Micoli and Mr. Philosophe] and the Tenant, on a full indemnity basis.
[9] The hearing proceeded on the basis of the Tribunal’s order and the Corporation’s opening statement.
[10] At the conclusion of the hearing, the Corporation delivered a 50-paragraph written closing argument. In paragraph 49, for the first time, the Corporation requested that, “in the alternative, [Mr. Philosophe] ought to be responsible for Corporation’s costs of these proceedings.”
[11] Mr. Philosophe filed reply submissions and objected to this late-breaking request from the Corporation.
[12] On February 13, 2023, the Tribunal released its decision and order. It ordered Mr. Philosophe to stop creating noise and nuisances and to ensure that all residents or guests in his unit do the same. The Tribunal also ordered Mr. Micoli to comply with his obligations as an owner and to ensure that Mr. Philosophe and his guests behaved in accordance with the rules. The Tribunal then made two compensatory orders in favour of the Corporation:
Mr. Micoli shall pay to the Applicant within 30 days of the date of this order costs in the amount of $8,551.50, under s. 1.44 (1) 4 of the Act and in accordance with the Tribunal's rules and practice direction on costs; and
Mr. Micoli and Mr. Philosophe are jointly and severally required pay the Applicant the following amounts within 30 days of the date of this order:
a. Compensation in the amount of $18,239.60 under s. 1.44(1)3 of the Act; and
b. Costs in the amount of $200 under s. 1.44 (1) 4 of the Act.
The appeal must be allowed
[13] Mr. Philosophe appeals the Tribunal’s order pursuant to s. 1.46(2) of the Condominium Act, which provides him with a right to appeal to the Divisional Court on a question of law.[^1] A breach of procedural fairness amounts to an error of law.[^2]
[14] Because the Legislature has created a right of appeal on questions of law and has not prescribed the standard of review, the applicable standard of review is correctness.[^3]
[15] In my view, the appeal must be allowed. It is a matter of basic fairness for a party to know the potential jeopardy they face in an administrative hearing.[^4] This includes the possible financial liability or other possible adverse consequences. Here, the Tribunal did not provide notice to Mr. Philosophe that it might find him jointly and severally liable to compensate the Corporation. Indeed, the Stage 2 Summary and Order explicitly told him that the Tribunal would not be considering that question. Despite this assurance, the Tribunal then made Mr. Philosophe jointly and severally liable to pay over $18,000 in compensation to the Corporation. This was a significant breach of the duty of procedural fairness.
[16] In conclusion, the Tribunal erred in law by ordering Mr. Philosophe to pay compensation to the Corporation when the Tribunal’s Stage 2 Summary and Order indicated that this issue would not be considered or determined in the Stage 3 hearing.
[17] Mr. Micoli neither appealed the Tribunal’s order nor filed any written material on Mr. Philosophe’s appeal. In these circumstances, I see no reason to grant any relief to him.
[18] The court has the power to affirm, reverse, or vary the order of the Tribunal.[^5] For the reasons set out above, I would vary the order as follows. Paragraph 5 from the order dated February 10, 2023, should be deleted, and replaced with the following:
Mr. Micoli shall pay to the Applicant within 30 days of the date of this order compensation in the amount of $18,239.60 under s. 1.44(1)3 of the Act.
Mr. Micoli and Mr. Philosophe are jointly and severally required pay the Applicant costs in the amount of $200 under s. 1.44 (1) 4 of the Act.
[19] The parties made submissions on costs at the conclusion of the hearing. As indicated at the hearing, the costs of the appeal are fixed at $5,500, inclusive of disbursements and Harmonized Sales Tax, and the Corporation is ordered to pay that amount to Mr. Philosophe.
_________________________ Centa J.
I agree
Sutherland J.
I agree
Leiper J.
Date: October 20, 2023
CITATION: Philosophe v. TSCC No. 2804, 2023 ONSC 5907
DIVISIONAL COURT FILE NO.: 159/23 DATE: 20231020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sutherland, Leiper, and Centa JJ.
BETWEEN:
Ilan Philosophe
Appellant
– and –
Toronto Standard Condominium Corporation No. 2804 and Frank Micoli
Respondent
REASONS FOR DECISION
ROBERT CENTA J.
Date of Release: October 20, 2023
[^1]: S.O. 1998, c. 19.
[^2]: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 22; 2541005 Ontario Ltd. v. Oro-Medonte (Township), et al., 2023 ONSC 5569 (Div. Crt.), at para. 35; Abdi v. TD General Insurance Company, 2023 ONSC 3536, at para. 6; C.P. v. Certas Home and Auto Insurance Company, 2022 ONSC 5978 (Div. Crt), at para. 5.
[^3]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 36- 37; Sarros v. York Region Standard Condominium Corporation No. 1445, 2022 ONSC 5346 (Div. Crt), at para. 10.
[^4]: Donald J.M. Brown and the Hon. John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998), at para. 9.36.
[^5]: Act, s. 1.46.