CITATION: Nugent v. Dimakas, 2024 ONSC 4862
NEWMARKET DIVISIONAL COURT FILE NO.: DC-23-11
DATE: 20240903
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LILIYA NUGENT
Plaintiff (Appellant)
– and –
MARIA DIMAKAS, NABILA NAWALEEN, DELIA PEREIRA, FIRSTSERVICE RESIDENTIAL, YORK REGION STANDARD CONDOMINIUM CORPORATION NO. 1388, ELIA ASSOCIATES and RICHARD ELIA
Defendants (Respondents in Appeal)
Liliya Nugent, Self-Represented
Deanna Miller, Counsel for the Defendant (Respondent in Appeal), Maria Dimakas
Antoni Casalinuovo, Counsel for the Defendant (Respondent in Appeal), York Region Standard Condominium Corporation No. 1388
Megan Molloy, Counsel for the Defendants (Respondents in Appeal), Elia Associates and Richard Elia
HEARD: August 28, 2024
REASONS FOR DECISION
CHARNEY J.:
[1] This motion is brought by the Respondents in Appeal, seeking to dismiss this appeal from the Small Claims Court for delay.
[2] The Appellant has responded to the motion to dismiss with an “Urgent Motion for Summary Judgment” seeking to (a) “set aside the Small Claims Court settlement conference as being ultra vires”, (b) “setting aside the deputy judge’s dismissal” (c) “an Order that the lien or liens declared by the defendants to be invalid”, and “an order that the defendants “return to the Plaintiff monies taken from the proceeds of Appellant’s sale of her property on July 4, 2023”. Finally, the Defendant seeks to set aside the dismissal of her Small Claims Court action.
[3] In order to make any sense of these proceedings, it is necessary to set out some of the procedural history.
Procedural History
[4] The Appellant, Liliya Nugent, was a resident and owner of a Unit within the Defendant York Region Standard Condominium Corporation No. 1388 (the Condominium).
[5] The other defendants include the management company hired to manage the Condominium affairs, the onsite property manager employed by the management company, a member of the Condominium Board of Directors and lawyers retained by the Condominium.
[6] Ms. Nugent commenced two different legal proceedings: the Small Claims Action that is the subject matter of this Appeal and a Superior Court action against some of the Respondents in Appeal.
[7] The Superior Court action was commenced on June 5, 2023 and discontinued on June 27, 2023. That action does not form any part of the analysis of this motion.
[8] The Small Claims Court action was commenced on March 9, 2023. The claim related to a dispute with the property manager about guest parking in the Condominium, and a condominium lien for $1,594.88 for legal fees placed on the Plaintiff’s unit. The Plaintiff claimed damages totalling $8,276,
[9] On June 30, 2023, counsel for the Defendants wrote to Ms. Nugent and advised her that the Defendants “are willing to consent to the dismissal of your action without seeking costs for legal fees they have incurred in the defence of this Action despite the significant costs incurred…on the condition that you sign a full and final release”.
[10] On July 3, 2024, Ms. Nugent signed the release prepared by the Defendants’ lawyers wherein she consented to a dismissal of her action on a without costs basis.
[11] The Small Claims Court action proceeded to court on July 4, 2023, and was dismissed on consent. Deputy Judge Perlin issued the following Endorsement:
This matter has been settled. The Plaintiff has agreed to dismiss the action against all Defendants without costs. This matter is dismissed against all Defendants without costs.
[12] Following the Consent Order, on July 4, 2023, counsel for the Condominium sent Ms. Nugent’s real estate lawyer an updated payout statement showing the full value of the Condominium Lien as of that date. The total amount of the condominium expenses owing as of that date was $32,776. This amount included $29,591.81 for “Legal costs in collection or attempted collection of the arrears, including expenses associated with defending litigation commenced by Ms. Nugent challenging the validity of the condominium lien”.(emphasis added)
[13] Ms. Nugent objected to the amount of the lien, and, in particular, the claim for legal expenses “associated with defending litigation commenced by Ms. Nugent” but paid under protest in order to close the real estate transaction and sell her unit.
[14] As I understand Ms. Nugent’s position, the Condominium’s claim for $29,591.81 for legal fees “associated with defending litigation commenced by Ms. Nugent challenging the validity of the condominium lien” was inconsistent with the Defendants’ offer to settle, the release she signed, and the Court’s Consent Order, all if which dismissed the action “without costs”.
[15] The Condominium Lien was discharged, and Ms. Nugent closed her real estate transaction on July 4, 2023. She is no longer a resident in the Condominium.
[16] Ms. Nugent did not appeal from this consent dismissal order. Nor could she appeal from a consent order without leave of the Divisional Court. Section 133(a) of the Courts of Justice Act states:
No appeal lies without leave of the court to which the appeal is to be taken from an order made with the consent of the parties.
[17] On August 4, 2023, Ms. Nugent brought a motion to the Small Claims Court to overturn the consent dismissal order.
[18] The motion was heard by Deputy Judge Di Gregorio on October 23, 2023, who dismissed the motion on the basis that the Court was functus officio. His Endorsement stated:
For reasons stated on the record the motion is dismissed. The matter is functus officio.
[19] Unfortunately, Deputy Judge Di Gregorio’s “reasons stated on the record” have never been transcribed.
[20] On November 22, 2023, the Appellant served a Notice of Appeal, appealling Deputy Judge Di Gregorio’s decision to dismiss her motion to set aside the Consent Dismissal Order.
[21] Since the service of the Notice of Appeal, the Appellant has not perfected the appeal.
[22] The Appellant has filed a document titled “Amended Notice of Appeal to the Divisional Court”, in which she seeks various relief unrelated to either the July 4, 2023 Consent Dismissal Order or Deputy Judge Di Gregorio’s October 23, 2023 decision. She states that she has made a criminal complaint against the Defendants to the York Regional Police. She disputes the $32,776 Condominium Lien put on her property immediately after the Consent Dismissal Order was made.
[23] She also seeks an order that her appeal be granted and that she be awarded damages in the amount of $68,000.
[24] As indicated, she also filed an “Urgent Motion for Summary Judgment”.
Analysis
[25] The procedural issue raised by these motions relate to two rules regarding appeals from Small Claims Court decisions.
[26] The first rule, already referenced, applies to all appeals: a party cannot appeal from a consent order “without leave of the court to which the appeal is to be taken”: s. 133(a) of the Courts of Justice Act.
[27] Leave to appeal a consent order is required even if the consent itself is challenged or disputed: Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, at paras. 34 – 37.
[28] The law requires leave to appeal a consent order based on the principle that a consent judgment is binding and final, and that finality is important in litigation because the parties reached their bargain on the premise of an allocation of risk and the implicit understanding that they would accept the consequences of the settlement: Mohammed v. York Fire and Casualty Insurance Co., 2006 3954 (ON CA), 79 O.R. (3d) 354, at paras. 34-35; Mendes. v. Mendes, 2019 ONSC 6036, at para. 44. Parties cannot appeal a consent order simply because they later regret the agreement they reached.
[29] The July 4, 2023, Dismissal Order of Deputy Judge Perlin was a consent order. No motion for leave to appeal was brought.
[30] The second rule relates to s. 31 of the Courts of Justice Act, which provides that an appeal lies to the Divisional Court from a “final order of the Small Claims Court…”.
[31] There is no appeal from an interlocutory decision of the Small Claims Court: Grainger v. Windsor-Essex Children’s Aid Society (2009), 2009 34987 (ON SC), 96 O.R. (3d) 711 (Div. Ct.), at para. 22:
In my view, s. 31 of the Courts of Justice Act reflects a policy choice on the part of the legislature to discourage interlocutory proceedings, appeals from interlocutory orders and extraneous procedural law in the Small Claims Court. Pursuant to s. 31, where an order made by a judge of the Small Claims Court is interlocutory, and not final, there is no appeal to the Divisional Court, let alone to the Superior Court of Justice.
[32] The test of whether an order is final or interlocutory is set forth in Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675. The Ontario Court of Appeal stated [at p. 678 O.R.]:
The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties -- the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.
See also: 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, at para. 7.
[33] In the present case, the July 4, 2023 Consent Dismissal Order was the final order of the Small Claims Court. It determined the “real matter in dispute between the parties”.
[34] Usually, an interlocutory order will come before the final order. This case is an example of an interlocutory order that came after the final order.
[35] Deputy Judge Di Gregorio’s October 23, 2023 Order was not a final order. It determined a collateral issue: the validity of the final order. Although the October 23, 2023 Order came after the Consent Dismissal Order, and in that sense the merits of the case did not “remain to be determined”, it was still an interlocutory order because the merits of the case had already been determined and the motion related to a collateral matter.
[36] A party wanting to challenge a consent order has two procedural options. The first option is to seek leave to appeal to a higher court.
[37] The second option is to bring a motion in a court of the same level under Rule 59.06 (2) to set aside the consent order on the grounds of fraud, misrepresentation, or duress: see McCowan v. McCowan, 1995 1085 (ON CA), [1995] O.J. No. 2245 (Ont. C.A.), at para. 19; Ruffudeen-Coutts v. Coutts, 2012 ONCA 65, at para. 79; Mohammed v. Mohammed, 2018 ONCJ 530, at para. 49; Moustafa v. Elsayed, 2019 ONSC 2129, at para. 16; and Joshi v. Joshi, 2014 ONSC 4677.
[38] In the present case, the Appellant brought a motion in the Small Claims Court to set aside the Consent Dismissal Order. She was not successful. She now wants to appeal. But the Consent Dismissal Order remains the final order.
[39] The dismissal of her motion to set aside the final order cannot transform the consent order into a non-consent order. The Appellant cannot circumvent the leave to appeal requirement in s. 133(a) of the Courts of Justice Act by asking another judge of the Small Claims Court to set aside the final consent order.
[40] As a result, this appeal is quashed because no leave to appeal has been sought or granted.
[41] If I were to treat the Appellant’s material as seeking leave, notwithstanding that she has not followed the procedure for obtaining leave, she does not satisfy the test for granting leave from a consent order.
[42] A review of her material demonstrates that her complaint is not really about the dismissal of her Small Claims Court Action of March 9, 2023. Recall that the Small Claims Court claim related to a dispute with the property manager about guest parking in the Condominium, and a lien for $1,594.88 for legal fees placed on the Plaintiff’s unit.
[43] The Appellant’s Amended Notice of Appeal and her “Urgent Motion for Summary Judgment” contest the Condominium Lien of $32,776 that was placed on her unit after the Consent Order was issued. In particular, she challenges the $29,591.81 for legal fees “associated with defending litigation commenced by Ms. Nugent challenging the validity of the condominium lien”, which, she argues, is inconsistent with the Defendants’ offer to settle, the release she signed, and the Court’s Consent Order dismissing the action “without costs”.
[44] She also seeks damages in the amount of $68,000, far more than the monetary jurisdiction of the Small Claims Court.
[45] Section 85(1) of the Condominium Act gives a condominium corporation a lien against an owner’s unit for unpaid common expenses, as well as “all reasonable legal costs and reasonable expenses incurred by the corporation in connection with the collection or attempted collection of the unpaid amount”.
[46] Ms. Nugent takes the position that the Condominium added the costs of defending her Small Claims Court action to the Condominium Lien, contrary to their agreement and the Court Order that the action be dismissed on a without costs basis. See: Carleton Condominium Corp. No. 56 v. Chreim, 2022 ONSC 4654, at para. 66.
[47] As I read her material, Ms. Nugent is not really seeking to overturn the Consent Dismissal Order, she is seeking to enforce the “without costs” term of the Order.
[48] The Condominium does not respond directly to Ms. Nugent’s claim that the $29,591.81 Condominium Lien for legal fees is inconsistent with the Consent Dismissal Order, but takes the position that this dispute is not the proper subject of an appeal from the Consent Order and can be addressed through mediation and arbitration under s. 132 of the Condominium Act., and, if not successful, in the Superior Court under s. 134 of the Act.
[49] I am not going to weigh in on the merits of Ms. Nugent’s claim that the Condominium Lien was contrary to the Consent Dismissal Order. The merits of that claim are not before me. She cannot bring a summary judgment motion without first commencing an action against the Condominium for violating the terms of the Consent Dismissal Order. If, however, the Condominium acted contrary to the Consent Dismissal Order, Ms. Nugent can enforce that Order without appealing it to the Divisional Court. Only the Condominium – none of the other defendants – would be a proper party to such a proceeding.
Conclusion
[50] For the foregoing reasons, the appeal is quashed, without prejudice to Ms. Nugent’s right to enforce the “without costs” provision of the Consent Dismissal Order and challenge the July 4, 2023 Condominium Lien in the appropriate forum.
[51] The Defendants seek costs. Their combined costs, on a partial indemnity basis, exceed $15,000.
[52] In my view, this is not a case for costs. The Defendants brought motions to dismiss the appeal for delay. None of the Defendants made reference to s. 133(a) of the Courts of Justice Act in their submissions. None moved to quash the appeal on the basis that leave to appeal was required. Had they proceeded on that basis, this matter could have been resolved many months ago and the costs of this motion would be a fraction of the costs claimed.
Justice R.E. Charney
Released: September 3, 2024
CITATION: Nugent v. Dimakas, 2024 ONSC 4862
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LILIYA NUGENT
Plaintiff (Appellant)
– and –
MARIA DIMAKAS, NABILA NAWALEEN, DELIA PEREIRA, FIRSTSERVICE RESIDENTIAL, YORK REGION STANDARD CONDOMINIUM CORPORATION NO. 1388, ELIA ASSOCIATES and RICHARD ELIA
Defendants (Respondents in Appeal)
REASONS FOR DECISION
Justice R.E. Charney
Released: September 3, 2024