Rodrigue Escayola

The applicants sought an oppression remedy against the condominium corporation regarding alleged inaccurate status certificate disclosures about balcony repairs and a solarium, and subsequent oppressive conduct.

The court found the original status certificate accurate regarding balcony assessments and solarium status.

However, it found the corporation engaged in oppressive conduct by deliberately altering and falsifying a status certificate provided to the applicants post-purchase and then lying about its authenticity.

The applicants were awarded $75,000 in damages and exempted from solarium demolition costs, but remained responsible for balcony special assessments.

This appeal concerns a dispute between two condominium corporations regarding the cost of replacing shared electrical infrastructure (electric switchgear or ESG).

The appellant, Ottawa-Carleton Standard Condominium Corporation No. 656 (656), refused to contribute to the replacement cost, arguing that the ESG was the property of the respondent, Carleton Condominium Corporation No. 519 (519), and its maintenance was 519's sole responsibility under their respective Declarations and the Condominium Act, 1998. 519 had successfully brought an application based on unjust enrichment, arguing that 656 would be enriched by continuing to receive electricity without contributing, 519 would be deprived, and there was no juristic reason for the enrichment.

The Court of Appeal upheld the application judge's finding that all elements of unjust enrichment were met, specifically agreeing that neither the Condominium Act nor 519's Declaration imposed a statutory obligation on 519 to maintain the ESG for 656's benefit without compensation, and that the absence of a cost-sharing agreement did not constitute a juristic reason to justify the enrichment.

The appeal was dismissed.

The respondents brought an unopposed motion to distribute the residue of their late father's estate and to require the applicant estate trustee to repay certain amounts to the estate.

The court found that the estate trustee had failed to properly administer the estate, resulting in unnecessary costs and delays.

The court ordered the estate trustee to reimburse the estate for improper expenses, denied her claim for trustee compensation, and directed the distribution of the remaining funds with setoffs against the estate trustee's share for her liabilities and previous costs awards.

Following a trial where the court invalidated powers of attorney due to incapacity and undue influence, the successful applicants sought their costs.

The court found that the unsuccessful respondent's conduct, which included manipulating the incapable person and unnecessarily lengthening the litigation, warranted a costs award on a substantial indemnity scale.

The court ordered the respondent to pay $150,000 in costs to the applicants, rather than having the costs paid from the incapable person's assets.

The applicants sought to invalidate 2016 powers of attorney executed by their 91-year-old mother/sister-in-law in favour of her son, who lived with her.

The son brought a competing application to validate the 2016 powers of attorney and be appointed guardian.

The court found the 2016 powers of attorney were executed under suspicious circumstances and the son failed to prove the mother had the requisite capacity to execute them.

The court also found the son exercised undue influence over the mother.

The 2016 powers of attorney were declared invalid, the 2009 power of attorney for property was declared operative, and the applicants were appointed joint guardians of the person.

Following the dismissal of the plaintiff unit owner's motion for partial summary judgment regarding a condominium lien for common element damage, the successful defendant condominium corporation sought costs.

The court fixed the defendants' costs at $13,500 on a full indemnity basis, noting the Condominium Act's intent to protect innocent unit holders from the financial burden caused by defaulting owners.

However, given the plaintiff's modest means and the fact that the action was ongoing, the court ordered the costs payable at the end of the proceeding rather than forthwith to avoid depriving the plaintiff of his day in court.

The plaintiff unit owner brought a motion for partial summary judgment to invalidate a lien registered against his unit by the defendant condominium corporation.

The lien was registered after the plaintiff failed to pay for smoke damage remediation costs caused by leaving food unattended on his stove.

The plaintiff argued the lien was invalid because the corporation failed to mediate before registering it and registered it late.

The court dismissed the motion, finding that mediation under s. 134 was not required for a s. 85 lien for common expenses, and that the lien was registered within three months of the plaintiff's default.

The appellant contractor brought an action for breach of contract after the respondent condominium corporations exercised a contractual termination clause following months during which the respondents knowingly misled the appellant into believing the agreement would not be terminated.

The majority held that the duty of honest performance, as formulated in Bhasin v. Hrynew, precludes active deception and applies to the exercise of all contractual rights, including termination rights; the respondents breached that duty by failing to correct the false impression they had created, which was directly linked to performance of the contract.

A concurring minority agreed on liability but differed on the measure of damages, holding that the duty of honest performance vindicates the reliance interest rather than the expectation interest.

The dissent would have dismissed the appeal on the ground that the respondents' conduct did not materially contribute to the appellant's mistaken belief and did not constitute the active dishonesty required for a breach of the duty of honest performance.

The appeal was allowed and the trial judge's award of damages was reinstated.

The condominium corporation appealed an order invalidating a lien registered against the respondents' unit for legal fees incurred in seeking compliance with a smoking restriction.

The Divisional Court dismissed the appeal, upholding the application judge's findings that the corporation could not use a section 85 lien to collect legal fees for a section 134 compliance matter without a court order.

The court also upheld findings that the corporation's conduct was oppressive, that it failed to negotiate in good faith, and that the smoking did not constitute a nuisance.

A case management conference was held to schedule and provide directions for an upcoming appeal hearing before the Divisional Court.

The court ordered the appeal to be heard by a panel of three judges via ZOOM videoconference and provided detailed instructions for the electronic filing of materials, including factums, compendiums, and authorities, using an electronic drop box.

Following the dismissal of the applicant unit owner's application regarding a noise complaint, the respondent condominium corporation sought full indemnity costs of $89,580.36.

The court rejected the respondent's argument that it was entitled to full indemnity costs under s. 134(5) of the Condominium Act, as the respondent was not an applicant.

However, because the applicant failed to accept a generous without-costs dismissal offer made by the respondent, the court awarded the respondent partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total costs award at $70,000.

The applicant unit owner sought an oppression remedy against the respondent condominium corporation, alleging it failed to repair and maintain common elements (exhaust fans) that were causing noise and vibration in her unit.

The court found that the corporation had regularly inspected and maintained the fans, and that the noise was not caused by a failure to repair.

The court also held that the corporation responded reasonably to the applicant's complaints over several years by hiring experts and replacing equipment, and therefore its conduct was not oppressive or unfairly prejudicial.

The plaintiff, an untitled spouse, sought partial summary judgment to declare a condominium corporation's lien and power of sale proceedings null and void against her, arguing she was not properly notified as required by the Family Law Act.

The court found that the condominium corporation failed to make reasonable inquiries to determine if the unit was a matrimonial home and to provide notice to the untitled spouse at her registered address before initiating lien and power of sale proceedings.

Consequently, the lien was deemed invalid against the plaintiff, and associated legal and collection costs were not recoverable from her.

The applicant landlord and respondent condominium corporation disputed the status of a lease for parking units after the original term expired.

The parties had signed a handwritten agreement to reduce rent and parking spaces, conditional on rezoning applications.

The court found the handwritten agreement unenforceable due to mutual breaches.

Consequently, the condominium corporation was found to be an overholding month-to-month tenant under the original lease and was ordered to pay rent arrears.

The court also held that the condominium's declaration and municipal by-laws did not compel the parties to maintain the lease in perpetuity.

The plaintiffs were awarded costs on a substantial indemnity basis following their successful motion to strike the defendant's statement of defence and note him in default.

The court found the defendant's conduct, including flagrant and intentional breaches of court orders and systematic flouting of the judicial system, justified substantial indemnity costs, even without an offer to settle.

The court fixed fees at $36,934.20 and reduced disbursements to $1,600, for a total award of $43,335.

The applicant commenced an application concerning a Shared Facilities Agreement (SFA) and the appointment of a property manager.

The respondents moved to dismiss or stay the application, arguing that the dispute fell under the SFA's alternative dispute resolution (ADR) provisions and was duplicative of existing litigation.

The court granted a stay of the application, finding that the core issues between the applicant and the primary respondent were arbitrable under the SFA.

The decision emphasized the strong policy favouring arbitration, noting that the mere invocation of an oppression remedy or the involvement of non-parties to the SFA should not automatically circumvent an agreed-upon arbitration clause if the pith and substance of the dispute is arbitrable.

The plaintiffs brought a motion to strike the defendant's pleading and note him in default due to his repeated breaches of interlocutory orders and failure to pay costs in the current action and related estate proceedings.

The court found that the defendant demonstrated utter disregard for court orders and systematically flouted them for personal advantage.

The motion was granted, striking the defendant's defence and noting him in default, allowing the plaintiffs to proceed to an uncontested trial for damages.

The respondent provided maintenance services to ten condominium corporations under two maintenance contracts.

The appellants terminated the winter maintenance contract but delayed notifying the respondent for several months to avoid jeopardizing completion of the summer contract.

The respondent performed extra unpaid work during this period in hopes of contract renewal.

The trial judge found the appellants breached the duty of honest performance by withholding termination information and accepting the unpaid work while knowing the contract would not be renewed.

The Court of Appeal reversed, holding that the duty of honest performance does not require disclosure of termination decisions or restrict the exercise of contractual termination rights, and that the appellants' conduct, while potentially dishonourable, did not rise to the level of breach required under the good faith performance standard established in Bhasin v. Hrynew.

The plaintiffs brought a motion to strike the defendant's statement of defence and note him in default, alleging failure to comply with a Master's order regarding a US bankruptcy petition and failure to pay costs awards totalling $29,000.

The self-represented defendant made submissions during the hearing but could not immediately point to evidence in the voluminous record to support his claims of compliance.

The court issued an interim endorsement setting a timetable for the parties to provide written submissions identifying the relevant evidence in the record.

The plaintiff, Christopher Callow, brought a motion to amend his Statement of Claim to correct the name of the plaintiff to his corporation, C.M. Callow Inc., four years after the cause of action arose.

The defendants opposed, arguing the limitation period had expired and it was an attempt to add a new party.

The court found that the defendants were aware the contract was with the corporation and would suffer no non-compensable prejudice.

Applying the doctrine of misnomer, the court granted the motion to amend the pleadings, finding special circumstances existed to justify the correction.