COURT FILE NO.: CV-10-406813
DATE: 20120606
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PEEL STANDARD CONDOMINIUM CORPORATION NO. 767
Applicant
– and –
2069591 ONTARIO INC. and 2162202 ONTARIO INC. o/a FOOD CITY SUPERMARKET
Respondents
Syed Ali Ahmed, for the Applicant
D. Larry Todd, for the Respondents
HEARD: March 27, 2012
LEDERER J.;
Introduction
[1] Condominiums are a form of ownership applicable to real property. Separate units within a building are individually owned, while common facilities such as hallways, elevators and exterior areas are shared. While independent ownership is the hallmark, the fact remains that there is a joint responsibility to the property and to the common interest of all the owners. These responsibilities are defined in the Condominium Act, 1998, S.O. 1998, C. 19, as well as the by-laws of the condominium corporation and the declaration, both of which are provided for in the Act. In this case, it is alleged that the occupant of two of the units is failing in these responsibilities by breaching rights exclusively held by the owner of another of the units. By this application, an order is sought enforcing compliance with the Condominium Act, 1998, the by-laws of the condominium corporation and the declaration (see: Condominium Act, 1998, s. 134(1).
Background
[2] The Jaipur Gore Plaza Inc. is a commercial condominium, meaning that the units it contains are to be used as retail stores. Counsel for the applicant, Peel Standard Condominium Corporation No. 767 (the “condominium corporation”), advised the court that there are fifty-six units and approximately thirty stores in the plaza. The declaration provides for certain uses to be exclusive to one unit or combination of units:
The Board shall permit individual Units to enjoy the following exclusive use rights, provided that only one Unit within the Corporation at a time shall be entitled to enjoy any specific stated use (unless two or more contiguous Units are owned by the same Owner or Tenant and are operated together as one use, in which case the board shall permit two or more units to enjoy the same stated exclusive uses) and the Board shall monitor compliance with same from time to time:… [^1]
[3] Among responsibilities of the owners and occupants of the units is that they respect the use rights of other unit owners:
Each Unit shall be occupied and used for commercial purposes only as permitted by the Applicable Zoning By-laws and any other uses that would not result in a breach of other use rights of other Unit Owners as provided herein…[^2]
[4] The owner of Unit 20 operates a food store: “Quality Food Market”. The declaration provides for the exclusive use by an owner of:
…a store for the sale, at retail, of fresh meat and poultry, whereby the foods sold are primarily for consumption off the premises; and provided that such store shall not engage in the sale of anything exclusively allocated herein to other Units[^3]
[Emphasis added]
[5] By resolution of the Directors of the condominium corporation, made on March 2, 2006, the owner of Unit 20 (the “holder of the rights”) was granted this exclusive use right.
[6] The respondent, 2069591 Ontario Inc. (the “owner”), is the owner of Units 11 and 12. The respondent, 2162202 Ontario Inc. o/a Food City Supermarket (the “tenant”), is the tenant and occupies Units 11 and 12 where it operates a food store: “Asian Food Market”.
[7] It is acknowledged that the Asian Food Market is and has been contravening the exclusive use rights of the owner of Unit 20. The Asian Food Market sells “fresh meat and poultry”.
[8] On February 6, 2009, solicitors for the condominium corporation wrote to the owner of Units 11 and 12 expressing its concern that the tenant was in breach of the exclusive use rights as specified by clauses 3.1(b)(i) and (viii) of the declaration of the condominium. The letter referred to the obligation of an owner and a tenant to comply with the Condominium Act, 1998, the by-laws and the declaration:
A corporation, the directors, officers and employees of a corporation, a declarant, the lessor of a leasehold condominium corporation, an owner, an occupier of a unit and a person having an encumbrance against a unit and its appurtenant common interest shall comply with this Act, the declaration, the by-laws and the rules.
[Emphasis added]
(Condominium Act, 1998, supra, s. 119(1))
and to the further obligation of the owner to ensure compliance, among others, of the tenant:
An owner shall take all reasonable steps to ensure that an occupier of the owner’s unit and all invitees, agents and employees of the owner or occupier comply with this Act, the declaration, the by-laws and the rules.
[Emphasis added]
(Condominium Act, 1998, supra, s. 119(2))
[9] The letter explained the responsibility of the Board of Directors of the condominium corporation to enforce compliance with the declaration:
The corporation has a duty to take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules.
[Emphasis added]
(Condominium Act, 1998, supra, s. 17(3))
and that, in furtherance of this responsibility, the condominium is authorized to make an application to this court to compel that compliance:
Subject to subsection (2), an owner, an occupier of a proposed unit, a corporation, a declarant, a lessor of a leasehold condominium corporation or a mortgagee of a unit may make an application to the Superior Court of Justice for an order enforcing compliance with any provision of this Act, the declaration, the by-laws, the rules or an agreement between two or more corporations for the mutual use, provision or maintenance or the cost-sharing of facilities or services of any of the parties to the agreement.
[Emphasis added]
(Condominium Act, 1998, supra, s. 134(1))
[10] The letter purports to submit the dispute to mediation. I say purports because the Notice of Mediation, which was enclosed with the letter, refers to the Condominium Act, 1998 s. 132 as the authority for the mediation. At the same time, the letter acknowledges that “the mediation is not mandatory”.[^4] The section says, in part:
- (1) Every agreement mentioned in subsection (2) shall be deemed to contain a provision to submit a disagreement between the parties with respect to the agreement to,
(a) mediation by a person selected by the parties unless the parties have previously submitted the disagreement to mediation; and
(b) unless a mediator has obtained a settlement between the parties with respect to the disagreement, arbitration under the Arbitration Act, 1991,
(i) 60 days after the parties submit the disagreement to mediation, if the parties have not selected a mediator under clause (a), or
(ii) 30 days after the mediator selected under clause (a) delivers a notice stating that the mediation has failed.
(2) Subsection (1) applies to the following agreements:
An agreement between a declarant and a corporation.
An agreement between two or more corporations.
An agreement described in clause 98 (1) (b) between a corporation and an owner.
An agreement between a corporation and a person for the management of the property.
(4) Every declaration shall be deemed to contain a provision that the corporation and the owners agree to submit a disagreement between the parties with respect to the declaration, by-laws or rules to mediation and arbitration in accordance with clauses (1) (a) and (b) respectively.
[Emphasis added]
(Condominium Act, 1998, supra, s. 132(1), (2) and (4))
[11] The problem is readily apparent. Where s. 132 of the Condominium Act, 1998 applies, the mediation it authorizes is a pre-condition to an application to this Court:
If the mediation and arbitration processes described in section 132 are available, a person is not entitled to apply for an order under subsection (1) until the person has failed to obtain compliance through using those processes.
[Emphasis added]
(Condominium Act, 1998, supra, s. 134(2))
[12] The question is whether this dispute is one to which s. 132 of the Condominium Act, 1998 applies. The argument is that a disagreement between a condominium corporation and the occupant (as opposed to the owner) of a unit are not among those referred to in section 132(2) of the Condominium Act, 1998. If it is, then a mediation would be required and, thus, be mandatory before an application to this Court could be commenced. If it is not, then, as the letter suggested, mediation is not mandatory. I shall return to this issue later in these reasons.
[13] On April 21, 2009, the property manager wrote to the owner of Unit 20 (the holder of the rights) requesting that its representatives attend a meeting with the board of the condominium corporation “to continue the mediation of the exclusive use…” The letter instructs the recipient to:
Please come prepared to discuss with the Board the potential violation of your exclusive use rights by the Asian Grocery Store operated in unit #11 & #12. We are prepared to demand that the unit owner you allege has violated your exclusive use rights cease and desist from selling fresh meats and poultry; however, to do so we require evidence that the product for sale at the unit are in fact fresh meats and poultry sold primarily for consumption off the premises, the exclusive use rights for which are protected under the Declaration. [^5]
[14] The meeting took place. In an affidavit, filed in support of the application, the Senior Property Manager deposed that the representatives of the owner of Unit 20 (the holder of the rights) supplied tags and a receipt, dated April 2, 2009, showing fresh meat having been purchased from the tenant.
[15] On July 13, 2009, solicitors for the owner of Units 11 and 12 wrote to the tenant demanding that it cease the retail sale of fresh meats in contravention of the declaration and of the lease between the owner and the tenant. The president of the owner of Units 11 and 12 provided an affidavit and was cross-examined. He and his wife are the only officers and directors of the owner. He was asked whether any response was received to the letter of July 13, 2009. There was no written response, only a verbal one. The tenant said that they could not operate without selling fresh meat and poultry. They would have to close the shop. The tenant expressed its intention to continue to sell fresh meat and poultry in contravention of the declaration.
[16] On December 16, 2009, a meeting was held in the hope that a resolution could be found. There is substantial disagreement between the parties as to the nature, substance and results of this meeting. Counsel, on behalf of the owner, referred to it as “mediation”.[^6] Counsel for the condominium corporation said it was only a meeting and submitted that it “was not a pre-mediation or mediation session between [the condominium corporation] and the owner…”[^7]. Counsel for the owner discussed this session as if it arose from the Notice of Mediation that was attached to the letter of February 6, 2009.[^8] The Notice of Mediation contained the following paragraph:
The parties shall have a period of 14 days from the date of service of this Mediation Notice within which to negotiate a solution of all disagreements, failing which the Owner shall select one of the proposed mediators within 10 days thereafter and notify the undersigned of the Owner's selection. The Owners’ [sic] selection of mediators must be communicated to the undersigned not later than 60 days after the date of this Mediation Notice.
[Emphasis added][^9]
[17] It should be clear that none of the, apparently, mandatory time limits applicable to a mediation to be completed, pursuant to this Notice of Mediation, were complied with. Moreover, the parties who were present are listed in three affidavits filed on behalf of the condominium corporation. They do not refer to a mediator having taken part.[^10] Section 132(1)(a) of the Condominium Act, 1998 refers to “mediation by a person selected by the parties” and the Notice of Mediation provided a list of possible mediators for the parties to consider.
[18] As s. 132 of the Condominium Act, 1998 suggests, a mediation is intended to find a resolution to disputes. It is difficult to understand how that could have happened here. The tenant, that is to say, the party in breach of the exclusive use rights provision of the declaration, was not present and was not represented.[^11] The parties represented were: the condominium corporation, the owner of Units 11 and 12 and the owner of Unit 20 (the holder of the rights). Given the obligations placed on the owner of Units 11 and 12 by s. 119(2) of the Condominium Act, 1998, the letter the owner wrote the tenant on July 13, 2009 and the refusal of the tenant to comply with the declaration, it is not realistic to propose that the owner was in a position to speak for or represent the tenant. The parties who were in attendance had all taken the position that the declaration should be complied with.
[19] Those who were present do not agree as to the result of this meeting. The affidavits filed by the two representatives of the condominium corporation who attended the meeting both say that, while terms of a possible settlement were discussed, no agreement was reached.[^12] One of the representatives of the condominium corporation took notes. The notes are not easy to read. They suggest that there was discussion about the substance of the problem which could contribute to an understanding of a possible agreement. What the notes make clear is that no agreement was reached. The notes say that “Bajinder” (which refers to one of the representatives of Unit 20 (the holder of the rights)) “will inform [of] their decision by Friday December 17, 09 to Mr. Verma”. This refers to Ramsaran Verma, who attended as a representative of the owner of Units 11 and 12.[^13] What was said in the notes is confirmed by the joint affidavit of the two principals of the store operated at Unit 20 (the holder of the rights). It states that the meeting terminated without an agreement and that the owners of Unit 20 were to confirm whether they would agree to the terms that were discussed the next day.[^14]
[20] For his part, Ramsaran Verma deposed in an affidavit that the “mediation meeting … resulted in a full and complete resolution of the issues with respect to the selling of fresh meats and poultry by the Owner’s tenant at Units 11 and 12” [^15] How this could happen in the absence of the tenant is something I do not understand and was not explained. The “President and Director” of the tenant also swore an affidavit. He deposed that it was “[o]n or about February 10, 2010 that [the tenant] was advised of the Mediation Settlement that was executed by George Lartner on behalf of the [property manager] detailing the terms of the settlement reached between the 2069591 Ontario Inc. (owner of Unit 11 and 12) and Quality Meat Market (owner of Unit 20) dated February 9, 2011.”[^16] I will turn to what was referred to as the “Mediation Settlement” shortly. For the moment, I only repeat that no settlement could be confirmed without the acceptance of the tenant.
[21] Quite apart from the absence of the tenant is the acknowledgement by Ramsaran Verma that the owners of Unit 20 indicated that they wished to “ ‘sleep on’ the matter” and would provide their response within two days to the two representatives of the board of the condominium corporation.[^17]
[22] The board of the condominium corporation met on December 21, 2009. The Minutes review the meeting of December 16, 2009, referred to the proposed terms of settlement and confirmed that Unit 20 (referred to in the minutes as Quality Meat Market) was given time to determine whether they would agree to the terms that had been discussed. The Minutes say:
The board met with Mr. Varma [sic] and Quality Meat Market on December 16, 2009. It was proposed that Quality Meat Market would sell frozen goat and prepared meats, Unit #11 and #12 would like permission to sell sheep, whole baby chicken and fish. Quality Meat Market was given until December 19, 2009 to reply but to date nothing has been received. The board will follow up on this issue.
The Board will propose that units #11/12 (Asian Food Market) must not sell any meat cheaper than Quality Meat Market (unit #20). Asian Food Market will be able to sell lamb, which is considered to be under 6 months of age. They will further be permitted to sell fresh but not frozen meat, and whole chicken. A letter will be written to Mr. Varma [sic] summarizing these terms, and if they are not adhered to the Corporation will proceed to arbitration without further notice. A note will be sent to Chris Jaglowitz inquiring about any downside should Varma [sic] not follow through on the proposed terms of settlement.[^18]
[23] It would appear that, at the conclusion of the meeting, the outstanding question was whether Unit 20 (the holder of the rights) would accept the terms that had been discussed. In the affidavit sworn by its two representatives, it is said that, on or about December 17, 2009, the representative of the owner of Units 11 and 12 (Ramsaran Verma ) came to Unit 20 accompanied by Jeff Lal, a principal of the developer of Jaipur Gore Plaza Inc. The affidavit says that the principals of Unit 20 (the holder of the rights) advised Ramsaran Verma and Jeff Lal that “they were not amenable to allowing the Tenant to sell any kind of fresh meats or poultry in violation of the exclusive use right in the Declaration.” The two principals of Unit 20 also deposed that they advised Avtar Singh, one of the two directors of the board of the condominium corporation, of their decision within a few days thereafter.[^19]
[24] Ramsaran Verma, in one of his two affidavits, said that no one ever communicated, to the owner, that the settlement “was ever ‘not accepted by the owners of Unit 20’” (the holder of the rights).[^20] In the affidavit he swore, Jeff Lal denied attending at Unit 20 on December 17, 2009.[^21] In a second affidavit, Ramsaran Verma went further. He deposed that, on two occasions in December, he approached Pawan Gupta, the other director of the condominium corporation, who had attended the meeting on December 16, 2009. Ramsaran Verma deposed that Pawan Gupta advised that he had received no information from the owners of Unit 20 withdrawing from the agreement and assumed that the matter was resolved.[^22] For his part, Avtar Singh deposed he was told by Ramsaran Verma that the principals of the store at Unit 20 had advised that they would not agree to the terms that had been discussed on December 16, 2009. Avtar Singh also said that he was told by one of the principals of the store at Unit 20 that, on December 17, 2009, he had told Ramsaran Verma that the proposed terms of settlement were unacceptable.[^23] In his affidavit, Pawan Gupta deposed that he spoke to Ramsaran Verma “...on December 18, 2009 and on a few more occasions in December 2009 and January 2010”. Pawan Gupta said he told Ramsaran Verma that he had “...not heard anything from Unit 20.”[^24] Nowhere does Pawan Gupta suggest that he assumed that the matter was resolved.
[25] I return to what was referred to earlier as the “Mediation Settlement”. In his second affidavit, Ramsaran Verma, the owner of Units 11 and 12, said that in mid-January 2010, after the regular meeting of the board of the condominium corporation, he spoke to Pawan Gupta, who advised that “‘the decision has been confirmed’ by the board and ‘you’ll get a letter from us’ confirming the resolution that ‘is good for you’”.[^25]
[26] The board of the condominium corporation met again on January 18, 2010. The Minutes confirm that the property manager was instructed to write a letter, as follows:
ComField will write a letter to Verma summarizing the agreement of what is and is not permitted to be sold by Asian Food Market. Asian Food Market will be permitted to sell fresh sheep and small, whole, uncleaned chicken. Quality Meat Market will sell frozen sheep and cleaned and prepared parts of chicken. The Board has confirmed that both parties are in agreement. However, if the parties do not sign the agreement and/or abide by these terms, the case will go directly to arbitration.[^26]
[27] In furtherance of this direction from the board, the document entitled “Mediation Settlement” was sent to the owner and to Unit 20. It was not addressed to the tenant. The document is dated February 9, 2009, but must have been prepared on February 9, 2010. It outlines the following terms:
During the meeting on December 16, 2009 between 2069591 Ontario Inc. [the owner], Quality Meat Market [Unit 20] and the Board of Directors, the following was agreed upon:
• Asian Food Market as Tenant of 2069591 Ontario Inc. is permitted to sell fresh, but not frozen sheep; and,
• Asian Food Market as Tenant of 2069591 Ontario Inc. is not permitted to sell lamb in any form; and,
• Asian Food Market as Tenant of 2069591 Ontario Inc. is permitted to sell small, whole, and not eviscerated chickens; and,
• Asian Food Market as Tenant of 2069591 Ontario Inc. is not permitted to sell meat in any form from which the price is less than the price charged by Quality Meat Market; and
• Quality Meat Market will continue to sell frozen sheep and eviscerated chicken and prepared chicken parts.
Asian Food Market as Tenant of 2069591 Ontario Inc. and Quality Meat Market agreed to abide by the above terms which form the basis of settlement of this disagreement. Should these terms not be adhered to, the Corporation will proceed directly to arbitration.[^27]
[28] Both of the members of the board of directors of the condominium corporation (Avtar Singh and Pawan Gupta) refer to the Memorandum as a “proposed settlement”.[^28] The owners of Unit 20 describe its contents as “outlining a settlement based on terms discussed at the December 16, 2009 meeting”. They returned it “…with a handwritten note rejecting the proposed settlement”.[^29] As with the meeting of December 16, 2009, Ramsaran Verma deposed that no one ever advised the owner that the settlement was “not accepted” by Unit 20.[^30] The tenant says that it was advised of the settlement. So far as I can tell, it did not advise any of the parties, particularly the condominium corporation or Unit 20, of its acceptance or rejection of the settlement.
[29] The affidavit provided on behalf of the tenant says that it has adhered to all the terms of the settlement.[^31] Whether this is so is a matter of some controversy between the parties. The Senior Property Manager of the corporation deposed that, as of November 30, 2010, the owner and tenant remain in violation of the declaration.[^32] In a second affidavit, he pointed to an insurance claim made by the tenant in respect of a power outage that purportedly took place on September 14, 2010. The “Contents Inventory Summary” of the items claimed included fresh meat and poultry[^33]. The affidavit of Avtar Singh makes reference to sales of fresh meat and poultry, made at Units 11 and 12 after the date of the supposed settlement.[^34]
Analysis
[30] Counsel for the owner expressed the view that the disagreement between the parties as to the mediation and the settlement demonstrates that the Court could and should determine the application by converting it to the trial of an issue. To my mind, this appears as a more than convenient submission. This application was commenced on July 15, 2010. It was initially to be heard on January 19, 2011. On that day, it was adjourned on consent to March 16, 2011 and, at that time, it was adjourned again, by agreement between the parties, to June 14, 2011. At the third appearance, it was adjourned at the request of counsel for the owner, supported by counsel for the tenant, but opposed by counsel for the applicant. The application was heard on March 27, 2012. It is not clear why it has taken so long to get here, but I observe that, over this time, the tenant has been left free to operate in contravention of the exclusive use rights of Unit 20. The application is based on the premise that the tenant was not entitled to operate as it has. While it is not relevant to any decision that may be made, I point out that, converting this proceeding to a trial, would serve to prolong the ability of the tenant to continue to sell fresh meat and poultry in circumstances where it may not be entitled to do so. Both sides and all the owners and occupants of units in the condominium have a right to have this matter resolved with reasonable expedition. So far as I can see, this should mean more quickly than has happened here.
[31] As it is, I do not agree with counsel for the owner. There is no need for this to be converted to a trial. I have no difficulty finding that what took place on December 16, 2009 was not a mediation. There was no mediator and an essential party, the tenant, was not present or represented. I find that no agreement was entered into on that day. All the parties agree that the owner of Unit 20 (the holder of the rights) was given time to decide whether it would accept the terms that were discussed. It never agreed. The first of the two affidavits provided by Ramsaran Verma suggests that agreement was communicated by the failure of Unit 20 to object (no one ever confirmed that the agreement was ever “not accepted by the owners of Unit 20”[^35]). This is not the way contracts are made. It is not the passage of time, but a positive demonstration of acceptance that concludes the agreement. There is no evidence that convinces me that anything different was anticipated. In particular, I do not accept that an agreement was made and it was left to the owners of Unit 20 to decide if they would resile from the arrangement. All of the other parties present say that no agreement was reached on December 16, 2009. Anything that Parwan Gupta may have said to Ramsran Verma during December 2009 and January 2010 does not change the fact that the owner of Unit 20 did not agree. The notes made by Parwan Gupta are clear. The owner of Unit 20 was being given time to make a “decision” as to whether to accept the proposed settlement, not to withdraw a decision that had already been made.
[32] As I have already noted, both the Minutes of the board of the condominium corporation and the “Mediation Settlement” suggest that both the owner of Unit 20 (the holder of the rights) and the tenant had agreed (see: paras. [25], and [26], above). It may be that this is what the words used in the Minutes and the “Mediation Settlement” document say, but it is clear that this did not happen. In fact, neither party confirmed their agreement. Ramsaran Verma says that he advised his tenant of the settlement subsequent to attending the meeting of December 16, 2009.[^36] The tenant said it was advised of the arrangement “on or about February 2010”.[^37] No suggestion was made, by the tenant, that it knew of the settlement at an earlier time. In any event, there is no evidence of any communication from the tenant confirming its agreement. Even if it adhered to the terms, it does not mean that it agreed. For its part, the owner of Unit 20 was given time to decide if it agreed. Its representatives say they advised the parties that it did not. Whether or not they did this, the “Mediation Settlement” was returned with the notation that it did not agree. Taken as a whole, the evidence is consistent with the understanding that, on December 16, 2009, terms were discussed but not agreed to, that the owner of Unit 20 was to take some time to consider whether it would agree. It never agreed. The Mediation Settlement was an effort by the board of the condominium corporation to bring matters to a head. It was, as both Avtar Singh and Parwan Gupta deposed, a proposal.[^38] This is confirmed by the fact that the proposal contained a term that, it would seem, had not been raised or reviewed at the meeting of December 16, 2009. The term referred to in the Mediation settlement to the effect that the tenant would not be permitted to sell meat for a price that is less than the price charged by Unit 20 (the holder of the rights) (see: para. [26], above) was not referred to in the notes taken by Parwan Gupta or in any of the affidavits as having been raised at that time. It was referred to in the Minutes of the meeting of the board which took place on December 21, 2009 as something the “Board will propose”. [Emphasis added]
[33] If I am wrong in this, it does not matter. The Condominium Act, 1998 makes clear that its terms bind the relationships condominiums create:
This Act applies despite any agreement to the contrary.
(Condominium Act, 1998, supra, s. 176)
[34] Any agreement made outside what the statute allows cannot stand. As was discussed earlier, the Condominium Act, 1998 s. 132(2) sets out the circumstances in which mediation is available (see: para. [10], above). As the factum filed on behalf of the owner of Units 10 and 11 is candid to point out, the mediation provisions of the statute do not apply to the tenants occupying condominium units[^39]. The implication of this has been reviewed as follows:
The mediation and/or arbitration provisions do not apply to tenants residing in condominium units. The corporation will, the author believes, be entitled to apply directly to the court where the enforcement problem is with the tenant, without including the unit owner in the enforcement process. To include the unit owner in the process would theoretically require that the condominium corporation mediate and/or arbitrate with the unit owner but apply to the court for an order against the tenant. Are the two proceedings to be simultaneous? Will the condominium corporation only apply to the court for an order against the tenant? It is the author's opinion that the condominium corporation should apply directly to the Superior Court of Justice where the enforcement involves a tenant as the right to recover its costs against the unit owner appears to be available to the corporation under section 134(5).[^40]
[35] The factum of the owners of Units 10 and 11 went on to say that this limitation is removed so long as the owner is included in the process. There is no authority for this other than the general assertion that the legislation seeks to have disputes dealt with inside the condominium community. In McKinstry v. York Condominium Corporation No. 472, this Court, for the first time, considered the interpretation and application of the Condominium Act, 1998. In his reasons, Juriansz J., as he then was, observed that:
The Legislature's objective in enacting s. 132 is to enable the resolution of disputes arising within a condominium community through the more informal procedures of mediation and arbitration.[^41]
[36] With this purpose in mind, his reasons expressed the view that the “disagreements” to which the section applies should be given a broad and liberal interpretation.[^42]
[37] This does not mean that the section can be extended beyond the meaning of its words. There is nothing that suggests that the section can apply to disputes involving the occupants of a unit even if the owner is also included. The case of Metropolitan Condominium Corporation No. 1143 v. Li Peng, to which counsel for the owner also referred, is a dispute between the condominium corporation and the owner of a unit.[^43] In any event, such a distinction cannot apply in this case. Here, it is the owner that was included. The tenant was not. In this case, if the legislation is to be interpreted so as to allow the meeting of December 16, 2009 to be accepted as a mediation, it would mean that a person who was not a party to the mediation can be bound by its terms. The better view is to accept that the Condominium Act, 1998 s. 132 does not allow for mediation involving a dispute between the condominium corporation and the occupant of one of its units.
[38] In the result, the occupant cannot agree with the condominium corporation or the owner of another unit, through mediation or otherwise, to act contrary to the declaration. Such an agreement would be outside the Condominium Act, 1998, s. 176. The legislation would continue to apply. The Condominium Act, 1998 s. 119(1) requires the condominium corporation, its directors, owners and the occupiers of the units to comply with the statute, the declaration and the by-laws (see: para. [8], above). In this case, the tenant has refused to do so.
Conclusion
[39] For the reasons reviewed herein, it is ordered that:
The respondent, 2162202 Ontario Inc. o/a Food City Supermarket, is required to comply with section 119(1) of the Condominium Act, 1998 and Article III, 3.1 (a) and (b) (viii) of the Declaration of Peel Standard Condominium Corporation No. 767 by ceasing and refraining from selling fresh meat and poultry, at retail, in Units 11 and 12 in contravention of the exclusive use rights of other units.
The respondent, 2069591 Ontario Inc., is required to comply with section 119 (1) and (2) of the Condominium Act, 1998 and to take all reasonable steps to ensure that it's tenant complies with Article III, 3.1 (a) and (b) (viii) of the Declaration of Peel Standard Condominium Corporation No. 767 by ceasing and refraining from selling fresh meat and poultry.
Costs
[40] No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:
on behalf of the applicant, no later than fifteen days after the release of these reasons. Such submissions are to be no longer than four pages, double-spaced, exclusive of any Bill of Costs, Costs Outline or case law that may be filed;
on behalf of the respondents, no later than ten days thereafter. Such submissions are to be no longer than four pages, double-spaced, exclusive of any Bill of Costs, Costs Outline or case law that may be filed; and,
on behalf of the applicant, in reply, no later than five days thereafter. Such submissions to be no longer than two pages, double-spaced.
LEDERER J.
Released: 20120606
COURT FILE NO.: CV-10-406813
DATE: 20120606
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PEEL STANDARD CONDOMINIUM CORPORATION NO. 767
Applicant
– and –
2069591 ONTARIO INC. and 2162202 ONTARIO INC. o/a FOOD CITY SUPERMARKET
Respondents
JUDGMENT
LEDERER J.
Released: 20120606
[^1]: Declaration Peel Standard Condominium Corporation No. 767 (“Declaration”) at article 3.1(b) [^2]: Declaration at article 3.1(a) [^3]: Declaration at article 3.1(b) (viii) [^4]: Application Record of the Applicant, Tab G, Letter, dated February 6, 2009 [^5]: Application Record of the Applicant, Tab H, Letter, dated April 21, 2009 [^6]: Factum of the Respondent, at para. 6, and Supplementary Factum of the Respondent, at para. 10 [^7]: Factum of the Applicant, at para. 24 [^8]: Record of the Respondent (dated December 30, 2010), Affidavit of Ramsaran Verma, at para. 11, and Exhibit “B” and Application Record of the Applicant, Affidavit of George Larter, at para. 18, and Exhibit “G” [^9]: Record of the Respondent (dated December 30, 2010), Affidavit of Ramsaran Verma, Exhibit “B”, and Application Record, Affidavit of George Larter, at para. 18, and Exhibit “G” [^10]: Supplementary Application Record of the Applicant, Affidavit of Avtar Singh, at para. 5; 2nd Supplementary Application Record of the Applicant, Affidavit of Pawan Gupta, at para. 5, and Affidavit of Bajinder Vir and Mukesh Verma, at para. 9) [^11]: Record of the Respondent (dated December 30, 2010), Affidavit of Ramsaran Verma, at para. 12 [^12]: Supplementary Application Record of the Applicant, Affidavit of Avtar Singh, at para. 6, and 2nd Supplementary Application Record of the Applicant, Affidavit of Pawan Gupta, at paras. 6 and 7) [^13]: Supplementary Application Record of the Applicant, Affidavit of Avtar Singh, at para. 7, and Exhibit “A” [^14]: 2nd Supplementary Application Record of the Applicant, Affidavit of Bajinder Vir and Mukesh Verma, at para. 10 [^15]: Record of the Respondent (dated December 30, 2010), Affidavit of Ramsaran Verma, at paras. 14 and 17, as well as Respondent’s Supplementary Record (March 10, 2011), Affidavit of Ramsaran Verma, at para. 4. [^16]: Record of the Respondent (dated March 10, 2011) Affidavit of Thushani Ruberu, at para.5 [^17]: Respondent’s Supplementary Record (March 10, 2011), Affidavit of Ramsaran Verma, at para. 5 [^18]: Respondent’s Third Supplementary Record, Minutes of the Board of Directors, dated December 21, 2009, Tab 5A [^19]: 2nd Supplementary Application Record of the Applicant, Affidavit of Bajinder Vir and Mukesh Verma, at para. 11 [^20]: Record of the Respondent (dated December 30, 2010), Affidavit of Ramsaran Verma, at para. 20, [^21]: Respondent’s Second Supplementary Record, Affidavit of Jeff Lal, at para. 6 [^22]: Respondent’s Supplementary Record (March 10, 2011), Affidavit of Ramsaran Verma, at para. 6 [^23]: Supplementary Application Record of the Applicant, Affidavit of Avtar Singh, at para. 8 [^24]: 2nd Supplementary Application Record of the Applicant, Affidavit of Pawan Gupta, at para. 9 [^25]: Respondent’s Supplementary Record (March 10, 2011), Affidavit of Ramsaran Verma, at para. 7 [^26]: Respondent’s Third Supplementary Record, Minutes of the Board of Directors, dated January 18, 2010, Tab 2A [^27]: Application Record of the Applicant, Affidavit of George Larter, at Exhibit “J” [^28]: Supplementary Application Record of the Applicant, Affidavit of Avtar Singh, at para. 9, and 2nd Supplementary Application Record of the Applicant, Affidavit of Pawan Gupta, at para. 11 [^29]: 2nd Supplementary Application Record of the Applicant, Affidavit of Bajinder Vir and Mukesh Verma, at para. 12 and Application Record of the Applicant, Affidavit of George Larter, at Exhibit “J” [^30]: Record of the Respondent (dated December 30, 2010), Affidavit of Ramsaran Verma ,at para. 20 [^31]: Record of the Respondent (dated March 10, 2011) Affidavit of Thushani Ruberu, at para.6 [^32]: Application Record of the Applicant, Affidavit of George Larter, at para 22 [^33]: Supplementary Application Record of the Applicant, Affidavit of George Larter at paras. 6, 7 and 8 [^34]: Supplementary Application Record of the Applicant, Affidavit of Avtar Singh, at paras. 13 an 14 [^35]: Record of the Respondent (dated December 30, 2010), Affidavit of Ramsaran Verma, at para. 20 [^36]: Record of the Respondent (dated December 30, 2010), Affidavit of Ramsaran Verma, at para. 22 [^37]: Record of the Respondent (dated March 10, 2011) Affidavit of Thushani Ruberu, at para.5 [^38]: Supplementary Application Record of the Applicant, Affidavit of Avtar Singh, at para. 9, and2nd Supplementary Application Record of the Applicant, Affidavit of Pawan Gupta, at para. 11 [^39]: Factum and Authorities of the Respondent, at para. 20 [^40]: Condominium Law and Administration, Vol. 2 (2nd Edition) Loeb, A.M. Carswell 1998, at pp. 22-62 [^41]: McKinstry v. York Condominium Corporation No. 472, [2003] O.J. No. 5006, 68 O.R. (3d) 557, at para. 19; [^42]: McKinstry v. York Condominium Corporation No. 472, [2003] O.J. No. 5006, 68 O.R. (3d) 557, at para. 20 and relied on in Metropolitan Condominium Corporation No. 1143 v. Li Peng, [2008] O.J. No. 244, 67 R.P.R. (4th) 97, at para. 15 [^43]: Metropolitan Condominium Corporation No. 1143 v. Li Peng, [2008] O.J. No. 244, 67 R.P.R. (4th) 97