SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-478734

DATE: 20131022

RE: Toronto Standard Condominium Corp. No. 1786, Owners’ Group / Moving Parties / Plaintiffs

AND:

Toronto Standard Condominium Corp. No. 1786, Joseph Ieradi, Giorgio Marchi (George March) and Konstantinos Koutoumanos (Gus Koutoumanos) / Responding Parties / Defendants

BEFORE: Justice Edward Belobaba

COUNSEL: Michael Gwynne and Sally Harris for the Moving Parties (Condo Owners)

Rocco Ruso and Nick Porco for the Responding Parties (Condo Directors)

HEARD: August 29 and September 20, 2013

costs award

[1] In hand-written endorsements dated August 29 and September 20, 2013, I issued interim orders relating to an on-going dispute between an Owners’ Group in this Toronto condominium and the Board of Directors.

[2] I have been asked to assess and award costs for the two attendances before me. I will deal with each of them in turn.

The August 29 attendance

[3] The main application involving, among other things, the appointment of an administrator, was adjourned on consent and, once it is scheduled, will be heard on the merits by another judge.[^1] At the attendance before me on August 29, 2013 the immediate focus was the urgent need for an AGM. I directed that an AGM be held within 28 days, to be chaired by a neutral chairperson, and that the Board provide certain corporate documents to the chairperson forthwith. I also noted the following in my hand-written endorsement:

The uncontroverted evidence before the court provides a disturbing picture of Condo Board Directors apparently acting in breach of court orders and of numerous provisions of the Condominium Act.

[4] I used the word “apparently” because I was not about to make findings of fact on an incomplete record in a relatively complicated application that was, in essence, being adjourned to another day. I advised counsel for the Owners Group that if any court orders were indeed being breached, he was at liberty to bring a contempt motion. To date, no such motion has been brought. Absent a show cause hearing and a finding of contempt of court, I will not presume on the record before me that the defendants’ conduct was so egregious that a substantial indemnity scale is justified. I should not do indirectly what has not been done directly.

[5] This leaves me to assess and award costs for the August 29^th attendance on a partial indemnity basis. I do so, however, on the clear understanding if the Owners’ Group prevails on the main application, it will be entitled to make further submissions that all costs incurred by this Group to that date should be paid on an elevated scale.

[6] As already noted, I only dealt with the AGM issues on August 29^th. The balance of the application was adjourned on consent. Nonetheless, counsel for the Owners Group was wise to prepare and file affidavit material that provided the requisite background and context for the AGM-related orders. However, I agree with counsel for the Directors that much of the $18,275 being claimed by the Owners’ Group for “fees other than counsel fees” relates to the claims that were adjourned. Having said this, I do not agree with counsel for the Directors, that the appropriate costs award should be no more than $2500.

[7] The preparation of the application material for the urgent AGM orders merits a costs award in the range of $5000 to $6000. Having reviewed the costs outline submitted by the Owners’ Group and having considered the factors set out in Rule 57.01(1), I find it fair and reasonable to fix costs for the August 29^th attendance at $5500 all-inclusive, to be paid by TSCC No. 1786 forthwith.

[8] I repeat that should the Owners’ Group prevail on the main application, not only may they make further submissions that all costs incurred to that date should be paid on an elevated scale, but also that any such costs award should be paid personally by Messrs. Ieradi, Marchi, and Koutoumanos. I will of course leave this in the good hands of counsel and the application judge.

The September 20 attendance

[9] In my August 29, 2013 endorsement, I made clear that I would remain seized of this matter but only to deal with “any breaches of this Order.” Counsel for the Owners’ Group advised that certain developments required an urgent attendance before me. I agreed to hear a further motion on September 20, 2013.

[10] The upshot of the September 20 attendance was an Order directing that the AGM scheduled for September 26 would proceed, unless adjourned for good reason by the neutral chairperson, and that unit-owners who were “in arrears” only because of their non-payment of the disputed “special assessment” would be entitled to vote.

[11] Here again, the only costs that I will consider are those that relate directly to the motion and attendance on September 20, and not for any costs incurred, for example, in counsel for the Owners’ Group having to deal with alleged “breaches” of court orders. If court orders have been breached, the appropriate remedial vehicle is a motion for contempt and a subsequent show cause hearing. I cannot make findings of contempt in the absence of a show cause hearing. The most I can do is assess and award costs for the September 20^th attendance – again on a partial indemnity basis.

[12] Counsel for the Owners’ Group asks for $7731 inclusive of disbursements and tax. Counsel for the Directors argues that the September 20^th attendance was unnecessary and unjustified. The core of the motion, the appointment of an administrator, was legally untenable, because 60 days of notice was required and was not provided. The relief actually granted by this court at the conclusion of the hearing dealt solely with the eligibility to vote question, relief that was not sought in the motion that was brought. Thus, say the defendant Directors, no costs should be awarded at all.

[13] I agree with the defendants. The September 20^th attendance was misguided. I granted an ad hoc AGM-related order but this was not sought in the filed material. In my view, no costs should be awarded for the September 20^th attendance.

[14] In sum, order to go fixing costs at $5500 all-inclusive for the August 29^th attendance, payable forthwith by TSCC No. 1786. No costs for the September 20^th attendance.

Belobaba J.

Date: October 22, 2013

[^1]: I am currently sitting in Class Actions and am unable to hear the main application. During the week of August 26, 2013, however, I was hearing Civil Motions and this motion was on my list.