SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: C-511-11
DATE: 2012-10-23

In the matter of an Application under Sections 117, 134 and 135 of the

Condominium Act , 1998, S.O. 1998, c.19.

RE: Waterloo North Condominium Corporation No. 70, Applicant

and

Gino Farenga and The Estate of Aurelia Clutterbuck, Respondents

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL:
R.W. Dowhan, for the Applicant

S.K. Cole, for the Respondent The Estate of Aurelia Clutterbuck

Gino Farenga, Self-represented Respondent

SUPPLEMENTARY ENDORSEMENT RE: costs

[ 1 ] Following the hearing of this application, I delivered oral reasons and granted a compliance order, pursuant to section 134, Condominium Act , in favour of the applicant condominium corporation.

[ 2 ] Written submissions were requested on the issue of costs with the option for Mr. Farenga to request an oral hearing. Mr. Farenga declined to make such request and did not serve and file written submissions.

[ 3 ] The condominium corporation asks for full indemnity costs of $18,437.31, payable jointly and severally by both respondents. The estate seeks a cost award against the condominium corporation, also on a full indemnity basis, in the amount of $8,383.53.

[ 4 ] In this case, there was no real issue regarding the compliance order. The evidence was overwhelming. The estate, owner of the condominium unit, denied liability yet made no effort to address the legitimate complaints advanced by the condominium corporation regarding the conduct of its tenant, Mr. Farenga. A condominium is a unique living arrangement. Unit owners owe a duty to each other, including a due diligence obligation when complaints arise.

[ 5 ] The difficulty in determining the cost issue has to do with the relief claimed but abandoned at the hearing. The condominium corporation, in its application, requested an order requiring Mr. Farenga to vacate the unit and be prohibited from occupying other units in the building. The estate says it received no notice such claims would be advanced prior to submissions in court.

[ 6 ] Condominium corporations are normally awarded full indemnity costs on successful applications so as to avoid other unit owners having to subsidize the expense resulting from the conduct of the respondents. Counsel for the condominium corporation relied on the following cases for this proposition:

i) Toronto Standard Condominium Corportation No. 1633 v. Baghi Developments Ltd. , 2012 ONCA 417 ;

ii) Metropolitan Toronto Condominium Corporation No. 1179 v. Chow , 2012 ONSC 587 ;

iii) Chan v. Toronto Standard Condominium Corporation No. 1834 , 2011 ONSC 108 ; and

iv) Metropolitan Toronto Condominium Corporation No. 985 v. Van Duzer , 2010 ONSC 900 .

[ 7 ] The estate claims costs against the successful applicant, saying the last minute abandonment changed the nature of the litigation. Reference was made to Singh v. Singh , 1992 CarswellOnt 322 (Gen. Div.) , a non-disclosure case, in support.

[ 8 ] The condominium corporation cannot claim complete success given the abandonment of significant claims. This case has been ongoing for some time. The evidence was clear. The applicant should have addressed its claims long before the ultimate hearing.

[ 9 ] The estate cannot be awarded costs due to the failure to make inquiry regarding the complaints. Further, on reading section 134, it ought to have realized the extent of available remedies.

[ 10 ] In result, I am of the view the condominium corporation is only entitled to partial indemnity costs. Having reviewed the bill of costs, I assess costs at $8,500.00, inclusive of HST and disbursements. Such cost award shall be payable by both respondents, on a joint and several basis.

D.J. Gordon J.

Released: October 23, 2012