Court File and Parties

Court File No.: CV-12-109483-00
Date: 2013-11-05
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STANLEY GORDON, Applicant

AND:

YORK REGION CONDOMINIUM CORPORATION NO. 818, ED ROTMAN, AHSAN ZAIYOUNA. HAROLD DAVIS, EUGENE KATZ AND MANFRED KAPP, Respondents

Court File No.: CV-12-110220-00

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YORK REGION CONDOMINIUM CORPORATION NO. 818, Applicant

AND:

STANLEY GORDON, Respondent

Before: The Honourable Mr. Justice J.R. McCarthy

Counsel:
Bora Nam, for the Applicant (Respondent by Counter-Application)

Benjamin Rutherford, for the Respondents (Applicants by Counter-Application)

Heard: By written submissions

Costs Endorsement

[1] An application and counter-application were argued before me on August 21, 2013. On that date, I granted an order setting aside the disqualification of the applicant as a director of the respondent condominium corporation. Leave was granted to the board corporation to conduct a fresh ethics review within ninety days. The portion of the application which sought a declaration that Article 6.03(c)(x) was invalid as contrary to section 33 of the Condominium Act was dismissed. The applicant’s request for reinstatement as a director was denied. The entirety of the respondent’s counter-application was dismissed. The court declined to usurp the authority of the board by conducting an evidentiary review of its own.

[2] The parties filed written submissions on the issue of costs. This was a case of divided success. The applicant won himself an order setting aside his disqualification from the board but was unsuccessful in obtaining the declaration of invalidity of the by-law. The applicant did not persuade the court that he should be reinstated pending a further ethics review. The respondent successfully resisted a portion of the application but was wholly unsuccessful on its counter-application.

[3] In my view, this is not a case where costs are properly payable by either party. While violations of principles of natural justice and procedural fairness are not trifles, the ultimate relief obtained by the applicant fell well short of what was sought at the outset. The actual article under which the ethics review took place, and under which leave to conduct a fresh ethics review was granted, survived the challenge of validity. Any reinstatement of the applicant is still dependent upon the outcome of a legitimate ethics review.

[4] The motion was made necessary by the respondent’s staging of the ethics review in circumstances which were, to say the least, unfair to the point of embarrassing. A failure to disclose the substance of the case a person has to meet in advance of such a hearing brings to mind justice from the dark ages. That failure by the respondent weighs heavily on this court’s mind in considering the merits of their argument on costs.

[5] Although the respondents were unsuccessful in persuading the court to affirm the decision from the ethics review or to conduct a review of its own, there was little to no argument devoted to that aspect of the hearing.

[6] Having considered all of the circumstances, I have found there to have been divided success on the application. I exercise my discretion to order no costs on either the application or the counter-application.

J.R. McCARTHY J.

Date: November 5, 2013