Rachel Rosamund Fielding

This is an appeal from an order dismissing a motion to stay an application in favour of arbitration.

The dispute concerns a cost-sharing agreement between condominium corporations regarding common expenses.

The motion judge found the essence of the claim was oppressive conduct, which he believed was not arbitrable.

The Court of Appeal reversed, holding that the core dispute was the interpretation and application of the reciprocal agreement, which contained a broad arbitration clause.

Citing recent Supreme Court of Canada jurisprudence, the Court emphasized that courts should not refuse to stay claims covered by a valid arbitration agreement and that oppression claims under the Condominium Act, 1998, are not exclusively for the Superior Court and can be arbitrated.

The appeal was allowed, and the application was stayed as it related to the issues between the two main condominium corporations.

The applicant, a condominium unit owner, brought a motion seeking a declaration that a new rule (Rule 19) enacted by the respondent condominium corporation's board of directors was invalid.

Rule 19 prohibited short-term leasing (less than six months) and deemed any person involved in such use a trespasser.

The applicant argued that Rule 19 was inconsistent with Article 4.9(e) of the condominium's declaration, which stated that no provision should limit an owner from leasing their unit for "any period of time whatsoever." The applicant also contended that paragraph 7 of Rule 19, deeming occupants trespassers, was inconsistent with the Condominium Act.

The court found that the board's interpretation of the declaration, which did not expressly permit short-term leasing, was unreasonable given the clear wording of Article 4.9(e).

Consequently, Rule 19 was declared invalid for being inconsistent with the declaration by prohibiting short-term leasing and imposing a minimum lease term.

Paragraph 7 was also found inconsistent with the Condominium Act, as owners cannot be deemed trespassers.

On appeal from a Superior Court order granting relief under section 135 of the Condominium Act, the Court of Appeal considered whether the application judge erred in granting discretionary relief based on facts that changed after the hearing.

The respondent had sought relief based on a pending sale of two condominium units for the purpose of operating an Indian and Mughlai restaurant.

Fresh evidence disclosed that the sale did not proceed and the units were subsequently leased to other tenants.

The Court of Appeal found that the equitable relief granted would provide no practical benefit and set aside portions of the order.

The Court also addressed issues regarding the production of records showing exclusive business uses and the assessment of damages.

The applicant unit owner brought an application against the condominium corporation for breach of its duty to maintain and repair common elements and for oppressive conduct, stemming from a long-standing mould problem in her unit.

The condominium corporation brought a competing application, alleging the unit owner breached her duty to maintain her unit due to lifestyle choices.

The court admitted fresh evidence regarding water leakage and insulation issues.

The court found that the mould was primarily caused by building design issues related to common elements, not the unit owner's lifestyle.

While the condominium corporation eventually remediated the mould, its overall response was deemed unreasonably delayed and not timely enough, thus breaching its duty to repair and maintain common elements under the Condominium Act.

However, the court dismissed the oppression claim, finding that the corporation's conduct, though delayed, did not amount to oppression, unfair prejudice, or unfair disregard of the unit owner's interests.

The unit owner's application was allowed to the extent that the condominium corporation was ordered to pay for the remediation costs, subject to the unit owner's proportionate share of common expenses.

The respondents moved to stay an application brought by the applicant, TSCC 1628, in favour of arbitration.

The application sought remedies under the Condominium Act, including for oppression (s. 135) and false/misleading statements (s. 133), against TSCC 1636, Soho Grand Condominiums Inc., and Soinco Limited.

The respondents argued the dispute fell under an arbitration clause in a Reciprocal Agreement and s. 132 of the Condominium Act.

The court denied the motion to stay, finding that the essence of the dispute was the allegedly oppressive conduct of Soho in imposing the Reciprocal Agreement, and that remedies under ss. 133 and 135 of the Condominium Act are exclusively within the Superior Court's jurisdiction.

The court also emphasized avoiding multiplicity of proceedings by keeping all related claims in one forum.

The Applicant sought to enforce a settlement agreement for the sale of a property, which the Respondent refused to close due to an alleged increase in property value and a change of heart.

The court found the settlement agreement valid and enforceable, rejecting the Respondent's arguments of defective tendering, lack of readiness, and contractual frustration.

The court ordered the Respondent to close the sale within 30 days and encouraged parties to settle outstanding rent and costs.