SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-39-00
DATE: 20140616

RE: MAPLE RIDGE COMMUNITY MANAGEMENT LTD.

• and -

PEEL CONDOMINIUM CORPORATION NO. 231

BEFORE: Justice David L. Edwards

COUNSEL:
Douglas H. Levitt, for the Plaintiff/Appellant
Michael A. Spears, for the Defendant/Respondent

ENDORSEMENT

1Maple Ridge Community Management Ltd. (“Maple Ridge”) appeals the decision of Deputy Judge Robert A. Filkin (“Trial Judge”), dated March 8, 2013, in which he dismissed Maple Ridge's claim.

2Peel Condominium Corporation No. 231 (“Condominium Corporation”) opposes the appeal.

3In the Small Claims Court action, Maple Ridge sought damages from the Condominium Corporation in the amount of $8,303.24, alleging a breach of contract.

4The parties agree that they entered into a contract appointing Maple Ridge as the property management company. The agreement was for a term of three years, commencing November 30, 2012 (“Agreement”).

5Under the terms of the Agreement either party could terminate the contract upon 60 days written notice or pay in lieu of notice (paragraph 16.1), or, alternatively, immediately for cause (paragraph 16.5(c)).

6The Condominium Corporation terminated the contract for cause.

7The portion of paragraph 16.5 (c) of the Agreement that the Condominium Corporation relied upon states that the Condominium Corporation could terminate Maple Ridge if Maple Ridge was "insubordinate, reckless or grossly negligent in performing its duties".

8At trial, Maple Ridge contended that the Condominium Corporation did not have cause to terminate. As it did not give 60 days prior written notice, Maple Ridge was entitled to pay in lieu of notice the amount of $8,303.24.

9The Trial Judge concluded:

[n]otwithstanding that the grounds relied upon by the defendant in terminating the agreement, may not have been sufficient individually to meet the tests outlined above, although in some cases I believe they were, I am satisfied that when taken together they are sufficient to constitute insubordination, recklessness and/or gross negligence entitling the defendants to terminate the agreement without notice pursuant to paragraph 16.5 (c).

10He dismissed Maple Ridge’s claim.

Preliminary issue

Preliminary issue

11Maple Ridge brought a motion to strike out portions of the Condominium Corporation’s factum and compendium on the basis that they refer to the defence brief that had not been made an exhibit at the trial.

12For the reasons given orally at the appeal, I dismissed this motion. I reserved costs of the motion.

Grounds of appeal

Grounds of appeal

13Maple Ridge states that the appeal raises the following issues:

(1) what is the applicable standard of review;

(2) did the Trial Judge err in fact and law by misapprehending the evidence before him, by failing to consider all of the relevant evidence, or by making patently unreasonable findings contrary to the weight of evidence before him;

(3) did the Trial Judge err in fact and law in application of his findings of fact to the legal principles that he enunciated; and

(4) did the Trial Judge err in law by failing to provide sufficient reasons to allow for meaningful appellate review.

Sufficiency of Reasons

14I will deal with the question of the sufficiency of reasons as it is dispositive of the appeal.

Sufficiency of Reasons

15As the Court of Appeal stated in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 2010 CarswellOnt 1459 (C.A.) at para 61:

…reasons must provide a sufficient window into the decision to allow meaningful appellate review to the extent contemplated by the permitted scope of the appeal. Reasons for a decision that describe both what was decided and why that decision was made are susceptible to effect appellate review. Whatever other shortcomings may exist in reasons that adequately explain the ‘what’ and the ‘why’, those shortcomings will not render the reasons so inadequate as to justify appellate intervention on that basis.

16From the judgment, we can determine that the Trial Judge found that some of the grounds relied upon by the Condominium Corporation to terminate the Agreement were sufficient to individually meet the tests that he outlined in his judgment. However, the Trial Judge does not state which ground(s) met those tests.

17Earlier in his judgment, the Trial Judge analyzes each ground that the Condominium Corporation relied upon to terminate the contract. He does not find one instance of recklessness, insubordination or gross negligence.

18He does state that a number of actions or omissions could amount to insubordination, reckless or gross negligence, namely: continuing to issue incorrect status certificates; delays in preparing banking documents for signature, coupled with late payment of payables and late payment charges being incurred; and failure to provide reports on the roofing contract to the Board of Directors.

19However, nowhere does he find that any act or omission constituted insubordination, recklessness or gross negligence.

20On that issue, we do not know “what” was decided.

21The Trial Judge also finds: “when taken together they are sufficient to constitute insubordination, recklessness and/or gross negligence “. Accordingly, he concludes that the Condominium Corporation was entitled to terminate the Agreement without notice.

22At first glance it appears that we know “what” was decided on this issue. However, further analysis demonstrates that “what” was decided is unclear. It is unclear as to what acts or omissions the Trial Judge found collectively rise to the level of insubordination, recklessness and/or gross negligence. Are they the acts or omissions that he found could amount to insubordination, recklessness and/or gross negligence individually? If so, which? If not, are they the other acts or omissions that the Trial Judge concluded individually could not amount to insubordination, recklessness and/or gross negligence? If so, which?

23Further, the Trial Judge does not provide an answer as to “why” he made that finding.

24Nowhere does the Trial Judge demonstrate how he reached that conclusion. He does not state why acts and omissions that were individually insufficient to constitute insubordination, recklessness and/or gross negligence, collectively constituted insubordination, recklessness and/or gross negligence.

25There is no “window” into the decision to allow for meaningful appellate review.

26I find that the reasons are not sufficient. I allow the appeal, set aside the judgment and return this matter to the Small Claims Court for a new trial before a deputy judge other than the Trial Judge.

27Counsel had urged that I make a cost order for the trial as the Trial Judge did not make a cost order. In the circumstances, I decline to do so.

28If the parties cannot agree upon costs of the preliminary motion and the appeal, they may provide cost submissions on the preliminary motion and this appeal, each not to exceed three pages (not including any offers to settle or bill of costs).

29Counsel for Maple Ridge shall provide his submissions within 15 days. Counsel for the Corporation shall provide his submissions within 15 days thereafter, with reply submissions, if any, within 7 days thereafter.

Edwards J.