Toronto Standard Condominium Corporation No. 1487 v. Market Lofts Inc., 2015 ONSC 1067
COURT FILE NO.: CV-13-476203
DATE: 20150218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1487 on its own behalf and on behalf of all unit holders of TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1487
Plaintiffs
– and –
MARKET LOFTS INC., 1166881 ONTARIO LTD., and SPRING ROLLS RESTAURANT
Defendants
Shawn Pulver and Debora Miller-Lichtenstein for the Plaintiffs
P. Alex Rivard and Saad Suleman, student-at-law, for the Defendants
HEARD: January 29, 2015
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] The Plaintiff, Toronto Standard Condominium Corporation No. 1487, which is a party to a mixed-use condominium project, sues Market Lofts Inc., also a party in the project, to enforce a Shared Services Agreement dated October 15, 2001 that is registered against the title of the condominium project.
[2] The Condominium Corporation now moves for a summary judgment; it claims $162,497.60, which claim covers the period from 2006 to 2014 and which includes accrued interest at 8% per annum, calculated and compounded monthly in accordance with the Shared Services Agreement.
[3] The Defendant, Market Lofts, contends that the Condominium Corporation’s claim is statute-barred under the two-year limitation period of s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B.
[4] Alternatively, Market Lofts contends that by virtue of a common understanding that the Condominium Corporation and Market Lofts would bear their own expenses, the Condominium Corporation is estopped from enforcing the Shared Services Agreement. As a further alternative, Market Lofts contends that it is the Condominium Corporation that has breached the Shared Services Agreement.
[5] The Condominium Corporation denies that its action is statute-barred, and it submits that its cause of action is a claim on a demand obligation and since demand was only made in 2012, therefore, it submits that none of its claim is statute-barred.
[6] In the alternative, the Condominium Corporation submits that its claim is governed by the ten-year limitation period prescribed by s. 23(1) of the Real Property Limitations Act, R.S.O. 1990, c. L. 15, and, therefore, s. 4 of the Limitations Act, 2002 does not apply to the circumstances of this case and, once again, the Condominium Corporation asserts that its claim is not statute-barred.
[7] As I will explain below, in my opinion, the Condominium Corporation has made out its claim for payment of its claim under the Shared Services Agreement, and the applicable limitation period is the ten-year limitation period prescribed by s. 23(1) of the Real Property Limitations Act.
[8] In my opinion, the defences advanced by Market Lofts are not made out and for the reasons that follow, the Condominium Corporation should have a summary judgment.
B. FACTUAL BACKGROUND
[9] On October 15, 2001, Georgian (St. Lawrence Lofts Inc.), a residential condominium developer, which is the predecessor-owner to the Condominium Corporation, entered into a Shared Services Agreement with Market Lofts Inc., a commercial condominium developer, with respect to a mixed-use condominium project consisting of 54 residential units and 8 commercial units.
[10] Mr. Frank Colatosti is the sole officer and director of Market Lofts.
[11] The Shared Services Agreement was registered against the title of the project as Instrument E471027 of the Land Titles Division of Toronto (No. 66). Pertinent provisions of the Agreement are set out in Appendix “A” to these Reasons for Decision.
[12] For present purposes, the most pertinent provisions of the Shared Services Agreement are Sections XVI and XVII that provide that if there is a default of payment of monies payable under the Agreement, the creditor party shall have a lien enforceable in the same manner as a mortgage to secure the payment of the monies together with costs and interest.
[13] Under the Shared Services Agreement, the Condominium Corporation and Market Lofts share the same roof, the same building foundation, the same hot water tank, and the same entry to the building where their utility meters and communication room are located. Some of Market Lofts’ alarm monitoring system is located together with the Condominium Corporation’s system in the common elements of the condominium.
[14] The Shared Services Agreement was signed before the condominium project was constructed, and after the building was constructed, the Agreement seems to have been ignored by Property Management Group, the Condominium Corporation’s former property manager.
[15] Mr. Colatosti, however, says that the Agreement was ignored because there was a common understanding that each party would take care of its own expenses.
[16] In Mr. Colatosti’s view, there was also a common understanding that the Shared Services Agreement was unclear and the Agreement needed to be rationalized or renegotiated to accord with how the project had actually been constructed.
[17] I, however, find as a fact that there was no common understanding, no acquiescence, and the evidence advanced on this summary judgment motion does not establish any estoppel of any sort.
[18] There was no need to rationalize or renegotiate the Shared Services Agreement. The rational allocation or apportionment of expenses under the Agreement would occur in the normal course of making charges under the Shared Services Agreement, which eventually occurred, albeit many years after it should have occurred.
[19] In any event, no charges were made under the Shared Services Agreement from between 2001 and June 2012. The Condominium Corporation made its first request for payment on June 21, 2012. Market Lofts refused to pay and that refusal continues.
[20] The evidence from the Condominium Corporation was that Property Management Group did not bring the Shared Services Agreement to the Board’s attention and Property Management Group did not enforce the Shared Services Agreement.
[21] The omission or failure to enforce the Agreement may rest with the former property manager, but it was also an oversight or failure by the Board of the Condominium Corporation.
[22] There are clear references to the Shared Services Agreement in the financial statements of the Condominium Corporation, and, therefore, the Condominium Corporation knew or ought to have been aware of the Agreement throughout its existence. There is also, of course, the fact that the Agreement was registered on the title to the condominium project, and the Agreement was readily discoverable. The Condominium Corporation knew or ought to have known it had a claim under the Shared Services Agreement throughout its relationship with Market Lofts. Subjectively, the Condominium Corporation through its Board may not have known about the Shared Services Agreement but the Board ought to have known about the Agreement throughout.
[23] (Pausing here, I note parenthetically that based on the above discoverability finding, the Condominium Corporation’s claim under the Shared Services Agreement for the years up to 2010 would be statute-barred if subject to the two-year limitation period of the Limitations Act, 2002.)
[24] Finally, in late 2010 or early 2011, during the process of hiring a new property management company, namely Goldview Property Management Ltd., the new management team noticed the Shared Services Agreement, and brought it to the attention of the Condominium Corporation.
[25] After discussing the matter with the Board of the Condominium Corporation, Goldview Property Management prepared a claim for payment of the amounts due under the Shared Services Agreement. In my opinion, the preparation of the claim was in accord with the provisions of the Agreement.
[26] To make the calculation of the sums owing under the Shared Services Agreement, it was necessary for the Condominium Corporation to obtain a report from an engineering firm to quantify the extent of the common areas that came under the Shared Services Agreement and to allocate the expenses for services, some of which were being provided for other areas in the condominium project.
[27] In June 2012, Goldview Property Management issued an invoice for payment of the sums due under the Shared Services Agreement for the period 2006 to 2012.
[28] The Condominium Corporation’s action against Market Lofts was commenced on March 14, 2013, and the action eventually made its way to this summary judgment motion.
[29] The record for the summary judgment consisted of: (a) affidavits sworn June 4, 2014, and July 25, 2014 from Annie Yu Zhang, a member of the Board of Directors; (b) the transcript of the cross-examination of Ms. Zhang; (c) an affidavit sworn January 9, 2015 from Michael Goldrich, the President of Goldview Property Management, the current property management firm retained by the Condominium Corporation; (d) an affidavit sworn July 3, 2014 from Mr. Colatosti; and (e) the transcript of Mr. Colatosti’s cross-examination.
[30] The hearing of the summary judgment motion included a mini-trial with viva voci evidence from Ms. Zhang and Mr. Goldrich, both of whom were cross-examined.
[31] At the mini-trial portion of this summary judgment motion, the Condominium Corporation filed a revised statement of account that added claims for 2013 and 2014 and recalculated the interest claimed. It also filed the engineer’s report.
[32] The balance being claimed as of January 6, 2015 is $162,497,60, as set out below:
Amount Claimed
2006
$10,873.00
2007
$9,284.00
2008
$9,433.00
2009
$12,986.00
2010
$11,252.00
2011
$14,135.00
2012
$14,487.00
2013
$14,236.00
2014
$14,988.00
Subtotal
$111,674.00
Interest
$50,823.61
Total
$162,497.60
[33] The annual charge to Market Lofts under the Shared Services Agreement averages $12,500, which, relatively speaking, is a modest annual sum. In advancing its estoppel claim based on acquiescence, Market Lofts submits that it suffered detrimental reliance because it could have passed this annual charge onto its eight commercial tenants. I fail to see any detrimental reliance in what appears to simply be an oversight by both parties.
[34] Further, it may be the case that Market Lofts may still be able to pass on these charges, in whole or part, to its tenants. The tenancy agreements were not put into evidence, and so I cannot assess whether Market Lofts had a right to pass on these charges to its tenants. Put somewhat differently, Market Lofts has not proven any acquiescence or any detrimental reliance.
[35] Market Lofts submits that it too incurred expenses for the benefit of the condominium project, and the Condominium Corporation ought to pay its share of those expenses. I reject this submission. The allocation of shared expenses is precisely the purpose of the Shared Services Agreement and there is no ad hoc arrangement between the parties.
[36] Finally, Market Lofts submits that it is owed its one-third share of the net recovery in an action brought by the Condominium Corporation for damages against the roof contractor for the condominium project. This submission, however, appears to have been resolved because the Condominium Corporation acknowledged that Market Lofts is entitled to its share of this recovery.
C. DISCUSSION AND ANALYSIS
1. Introduction
[37] In this section, I will describe the current law about summary judgment motions and consider whether there are any genuine issues requiring a trial in the case at bar.
[38] At the outset, I note that there was no challenge to the legality of the Shared Services Agreement as a contract or as an interest in land registered against the title of the mixed-use condominium project.
2. Jurisdiction to Grant Summary Judgment
[39] The motion before the court is a motion for a summary judgment. Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[40] With amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:
20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[41] Rule 20.04(2.2) states:
Oral Evidence (Mini-Trial)
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[42] In Hryniak v. Mauldin, 2014 SCC No. 7, the Supreme Court of Canada held that on a motion for summary judgment, the Court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers enacted when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.
[43] In the case at bar, based only on the evidence in the motion record and without using the fact-finding powers under rule 20.04(2.1), there were several genuine issues for trial.
[44] The genuine issues were threefold: (1) did the Condominium Corporation prove that there were sums owing under the Shared Costs Agreement; (2) did Market Lofts make out a case for estoppel to preclude the Condominium Corporation from making its claim for payment under the Shared Services Agreement; and (3) is the Condominium Corporation’s claim statute-barred?
[45] Under the approach to summary judgment mandated by Hryniak v. Mauldin, if there is a genuine issue requiring a trial, then the Court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice, if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[46] In the case at bar, in my opinion, the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2) to resolve the three genuine issues.
[47] The issue of what limitation period applied is largely an issue of interpreting the statutes, and, as noted above, there was an evidentiary record and a mini-trial to resolve the contentious issues about the calculation of the sums payable under the Shared Services Agreement and about whether the Condominium Corporation is estopped from advancing its claim.
[48] Having considered the evidentiary record including the evidence adduced during the cross-examinations both before and at the hearing of the summary judgment motion, I am satisfied that subject to Market Lofts’ limitation period defence, which I will discuss further below, the Condominium Corporation has made out its case that Market Lofts owes it the sums claimed under the Shared Services Agreement and there is no sufficient evidentiary foundation for a defence based on estoppel.
3. Market Lofts’ Limitation Period Defence
[49] Turning to Market Lofts’ limitation period defence, the relevant provisions of the Limitations Act, 2002 and the Real Property Limitations Act, are set out below.
Definitions
- In this Act, …
“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; ….
Application
- (1) This Act applies to claims pursued in court proceedings other than,
(a) proceedings to which the Real Property Limitations Act applies; …
Basic limitation period
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Discovery
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
Demand obligations
(3) For the purposes of subclause (1) (a) (i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made.
Same
(4) Subsection (3) applies in respect of every demand obligation created on or after January 1, 2004.
When right accrues on dispossession
5.(1) Where the person claiming such land or rent, or some person through whom that person claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, the right to make an entry or distress or bring an action to recover the land or rent shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession, or at the last time at which any such profits or rent were so received.
Maximum of arrears of rent or interest recoverable
17.(1) No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, whether it is or is not charged upon land, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress or action but within six years next after the same respectively has become due, or next after any acknowledgment in writing of the same has been given to the person entitled thereto or the person’s agent, signed by the person by whom the same was payable or that person’s agent.
Limitation where money charged upon land and legacies
23.(1) No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or otherwise charged upon or payable out of the land or rent, or to recover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive it accrued to some person capable of giving a discharge for, or release of it, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledgment in writing of the right thereto signed by the person by whom it is payable, or the person’s agent, has been given to the person entitled thereto or that person’s agent, and in such case no action shall be brought but within ten years after the payment or acknowledgment, or the last of the payments or acknowledgments if more than one, was made or given.
Mortgage covenant
43.(1) No action upon a covenant contained in an indenture of mortgage or any other instrument made on or after July 1, 1894 to repay the whole or part of any money secured by a mortgage shall be commenced after the later of,
(a) the expiry of 10 years after the day on which the cause of action arose; and
(b) the expiry of 10 years after the day on which the interest of the person liable on the covenant in the mortgaged lands was conveyed or transferred.
Equity of redemption
(2) No action by a mortgagee against a grantee of the equity of redemption under section 20 of the Mortgages Act shall be commenced after the expiry of 10 years after the day on which the cause of action arose.
Same
(3) Subsections (1) and (2) do not extend the time for bringing an action if the time for bringing it is limited by any other Act.
[50] The issue to be determined is whether the Condominium Corporation’s claim is governed by the Limitations Act, 2002 or the Real Property Limitations Act.
[51] Formerly, the general limitation periods for both personal and real property actions were found in one statute. However, when Parts II and III of the former Limitations Act were repealed and replaced by the Limitations Act, 2002, the definitions and Part I of the former Act, which dealt exclusively with real property limitations, were renamed the Real Property Limitations Act, and now the general limitation periods are found in two statutes.
[52] When the legislature revised the law of limitations in Ontario, it decided to leave the law as applied to real property largely untouched: McConnell v. Huxtable, 2014 ONCA 86 at paras. 14, 61-70; Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629 at para. 26.
[53] Subsection 2(1)(a) of the Limitations Act, 2002 provides that the Limitations Act, 2002 does not apply to proceedings to which the Real Property Limitations Act applies. The Real Property Limitations Act governs actions about claims to real property; the legislature intended that all limitation periods for actions affecting land are governed by this Act: Equitable Trust Co. v. Marsig, 2012 ONCA 235, affg. 2014 ONSC 2219.
[54] However, as illustrated by Zabanah v. Direct Lending Corp., 2014 ONCA 872, affg. 2014 ONSC 2219 and Metropolitan Toronto Condominium Corp. No. 1067 v. L. Chung Development Co., 2012 ONCA 845 that land or real property is incidentally involved in an action, however, does not necessarily mean that the action is governed by the Real Property Limitations Act. In Zabanah, the plaintiff sued a mortgage broker who had assigned to the plaintiff what turned out to be a worthless second mortgage. The plaintiff sued for damages for negligence, breach of contract, and breach of fiduciary duty, and the court held that the action was statute-barred under the two-year limitation period of the Limitations Act, 2002 and not the ten-year period under the Real Property Limitations Act. In Metropolitan Toronto Condominium Corp. No. 1067, where a condominium corporation sued for damages for negligence, breach of contract, and breach of statutory and fiduciary duty because it had overpaid for surface rights to a parking garage, the court held that the action was not governed by the Real Property Limitations Act.
[55] Claims for the recovery of land, including adverse possession claims and claims for a constructive trust based on unjust enrichment are governed by the Real Property Limitations Act: McConnell v. Huxtable, supra; Hartman Estate v. Hartfam Holdings Inc., [2006] O.J. No. 69263 (C.A.).
[56] A claim under a guarantee contained as a part of a mortgage is an action on a covenant contained in a mortgage and is subject to a ten-year limitation period: Martin v. Youngson (1924), 55 O.L.R. 658 (C.A.); Montreal Trust Co. of Canada v. Vanness Estate (19 August 2004), Ottawa, 02-CV-19501 (Ont. S.C.J.), aff'd, [2005] O.J. No. 594 (C.A.); Equitable Trust Co. v. Marsig, supra.
[57] Rental payments for land are governed by the Real Property Limitations Act. A rent charge, which is an obligation on a landowner to pay a periodic sum to another person, is distinct from “rent reserved” (also called “rent service”), which is an obligation of a tenant to its landlord in exchange for the exclusive possession of land or other property capable of being held in possession: Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629 at paras. 29-33. A rent charge does not have anything to do with a landlord and tenant relationship. The Act imposes a ten-year limitation period for rent charges and a six-year limitation period for rent as between a landlord and tenant: Pickering Square Inc. v. Trillium College Inc., supra.
[58] However, that the parties to a lease describe a payment as rent or additional rent is not determinative of whether the charge is a rent charge, and if it is just a contractual charge it will be governed by the Limitations Act, 2002: Pickering Square Inc. v. Trillium College Inc., supra at paras. 29-56. In Coffee Culture Systems Inc. v. Krukowski, 2013 ONSC 1203, a tenant’s claim against its landlord for breach of a commercial lease was held not to be an action to recover any land or rent and was held to be subject to the Limitations Act, 2002 and not the Real Property Limitations Act. See also Bill Co. v. Yellowstone Property Consultants Corp., 2012 ONSC 5116 (Ont. Master).
[59] The Ontario Law Reform Commission in its Report on Limitation of Actions (Department of the Attorney General, 1969) pp. 67-69 provides a useful summary of the complex provisions about the limitation periods for actions to recover rent. The Report indicates that:
• A claim for a rent charge secured by a covenant is subject to a ten-year limitation period but no more than six years of rent are recoverable unless the arrears of rent are owing under an indenture of demise in which case twenty years of arrears are recoverable.
• A landlord’s claim for arrears of rent (rent reserved or rent service) must be brought within six years and no more than six years of rent are recoverable.
• Actions for rent (rent charge or rent service) upon an indenture of demise must be brought within twenty years and twenty years of arrears are recoverable.
[60] The Ontario Law Reform Commission in its Report on Limitation of Actions at pp. 69-71, also provides a useful summary of the complex provisions about the limitation periods for mortgages and other charges on realty. The Report indicates that:
• A mortgagee’s right to foreclose is not subject to any limitation period if the mortgagee is in possession and is subject to a ten-year period limitation period if the mortgagor is in possession.
• A mortgagee’s right to sue the mortgagor on the covenant to pay and the mortgagee’s right under the Mortgages Act, R.S.O. 1990, c. M. 40, s.20 to sue a grantee of the equity of redemption on the covenant to pay is subject to a ten-year limitation period.
• An action to recover out of the “land or rent” any sum of money secured by a mortgage is subject to a ten-year limitation period.
• A mortgagor’s right to redeem is not subject to any limitation period if the mortgagor is in possession and is subject to a ten-year limitation period if the mortgagee has obtained possession.
[61] Based on these authorities, in my opinion, any action to collect the charges imposed by the Shared Services Agreement is governed by the Real Property Limitations Act, and more particularly, the action is governed by s. 23 (1) of the Act, which sets a ten-year limitation period for an action to recover out of any land any sum of money secured by a lien or otherwise charged upon or payable out of the land.
[62] Having regard to this conclusion, the Condominium Corporation’s claim is timely. There is no discoverability issue and it is not necessary for me to address the parties’ arguments about demand obligations under the Limitations Act, 2002.
[63] It follows that the Condominium Corporation has proven its claim and the claim is timely.
D. CONCLUSION
[64] For the above reasons, I grant the Condominium Corporation’s summary judgment motion.
[65] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Condominium Corporation’s submissions within 20 days of the release of these Reasons for Decision followed by Market Lofts’ submissions within a further 20 days.
Perell, J.
Released: February 18, 2015
Appendix “A”
WHEREAS Georgian intends to develop and construct a residential condominium on the Condominium Lands (the “Condominium Development”);
AND WHEREAS MLI intends to develop and construct a commercial/retail development (the “MLI Development”) on the Freehold Lands;
AND WHEREAS the parties have entered into this Agreement for the purposes of providing for the mutual use, maintenance, repair, replacement and cost-sharing of the Easements, the Shared Facilities, and the Shared Services which will serve and benefit the parties hereto;
I. DEFINITIONS
b. “Act” shall mean the Condominium Act, R.S.O. 1998, S.O. 1998, C.19;
c. “Allocated Share”, with respect to an Owner shall mean the proportion of the costs of the Shared Services to be borne by that Owner pursuant to Article VIII of this Agreement;
e. …as “The St. Lawrence Lofts Building”;
f. “Commercial Building” shall mean that portion of The St. Lawrence Lofts Building on the Freehold Lands;
i. “Condominium Corporation” means the condominium corporation created or to be created pursuant to the registration of a Declaration under the Act against title to the Condominium Lands;
o. “Owner” shall mean with respect to the Condominium Lands, Georgian and its successors and assigns, and with respect to the Freehold Lands, MLI and its successors and assigns, and “Owners” shall have a corresponding meaning as to all the Lands;
p. “Residential Owner” means the owner of a Residential Unit in the Condominium Corporation;
s. “Shared Costs” shall include the costs of providing the Shared Services, as provided in Article VIII;
t. “Shared Facilities” shall mean the facilities described as such in Article VII of this Agreement;
u. “Shared Services” shall mean the services for the Shared Facilities described in Article VII.
III. COMPLIANCE WITH AGREEMENT
- Upon the registration of a Declaration under the Act in regard to the Condominium Lands or any part thereof, the Condominium Corporation so created shall assume the obligations of Georgian under this Agreement and be bound by the terms of this Agreement. From and after such date the Condominium Corporation shall have all of the rights and shall assume all of the obligations of the Georgian hereunder (provided that Georgian shall remain obligated and shall not be released from any amounts owing by Georgian under this Agreement arising prior to the registration of the Declaration of the Condominium Corporation), and Georgian shall be otherwise released and relieved of all obligations and liabilities hereunder.
V. BENEFIT AND BURDEN
- The provisions of this Agreement are intended to run with the Lands and any portion thereof benefitted and burdened thereby, and shall be binding on and enure for the benefit of each of the parties hereto and their respective successor in title thereto.
VII. PROVISION OF SHARED SERVICES FOR THE SHARED FACILITIES
- The following shall be the Shared Facilities referred to in this Agreement for which the Shared Services shall be supplied (and the Owner of the Building in which a Shared Facilities is contained shall be primarily responsible for performing or arranging for the performance of any service required to be performed in respect to such Shared Facilities);
a) those parts of the HVAC, electrical and mechanical systems, energy management system, water main service and pumps, sanitary drainage system, storm drainage system, water service, fire line and sprinkler system, telephone service, and all other systems or services situate in the St. Lawrence Lofts Building as set out in Schedule A, excluding any equipment (including connecting cables/conduits/pipes) benefitting solely the Condominium Lands and/or the Freehold Lands and or the Building of only one Owner and practicably distinguishable from Shared Facilities;
b) the physical and structural components as set out in Schedule A;
c) the Service Units and the amenities and facilities as set out in Schedule “A”.
- The Shared Services include, without restricting the generality of the foregoing:
a) maintenance and repair, including renovation or reconstruction as necessary, of the Shared Facilities to ensure that same are and will operate in accordance with Acceptable Standards;
b) preparation and setting of annual budgets with respect to all Shared Services and Shared Facilities and all matters related thereto;
c) obtaining of any professional services, consultants, opinions, reports and advice with respect to the operation, maintenance and/or repair of the Shared Facilities;
d) snow removal of adjacent City sidewalks and landscaping;
e) personnel;
f) administration expenses;
g) utilities which are not separately metered to areas of the St. Lawrence Lofts Building which constitute Shared Facilities;
h) maintenance and repair of areas which are jointly shared or used in the servicing and maintenance of the Condominium Lands and the Freehold Lands; and
i) the cost of management, maintenance and insurance fees and other charges pertaining to the maintenance, repair and use of the Shared Facilities.
- All Shared Services shall be provided expeditiously in a good and workmanlike manner without unnecessary interference with the normal use of the Lands and/or Building thereby affected or with the benefit of the Easements appurtenant thereto, and where performed by contract with others the contract price shall be competitive except in an emergency in which time did not permit competitive selection.
VIII. COST SHARING
- The Shared Costs shall be shared such that each Owner’s Allocated Share shall be as follows:
(a) The costs of the Shared Facilities shall be shared between the Condominium Corporation and the owner of the Commercial Building as provided for in Schedule “A”. Each Owner’s Proportionate Share of the Shared Facilities’ costs shall be calculated in accordance with Schedule “A” attached thereto.
The cost of any services necessitated by the wilful or negligent act or omission of any Owner or of any of its occupants, employees, agents, contractors, licensees or invitees shall be paid by that Owner and not included in the Allocated Share of the Owners.
Each Owner shall be entitled to review all bills, invoices and receipts relating to any Shared Costs to which such Owner is being asked to contribute. It is agreed, however, that the Owner primarily responsible for arranging for the performance of such service as allocated in Schedule “A” shall have reasonable discretion with regards to the means of performing such services. It is therefore acknowledged and agreed that the amount of any cost actually paid or incurred by any Project Owner for any work so performed shall not be challenged by the other Owner unless such cost has been clearly demonstrated to be substantially in excess of the reasonable costs which would properly have been paid had such Owner, primarily responsible for arranging for such services, exercised due diligence in the performance of such work.
Each Owner shall promptly pay its share of the Shared Costs as allocated in Schedule “A” when a request is made by any Owner which is required to perform same pursuant to Schedule “A” and any cost or expense incurred in the collection of such costs, including all legal expenses incurred on a solicitor and his client basis, shall be the sole liability of the Owner who has omitted or neglected to pay same promptly when requested, and in addition, such defaulting Owner shall be solely liable for any interest or penalty charges incurred as a result of it not remitting any payment or charge promptly when due.
The Owners are entitled to agree, in writing, as between them to adjust either of their Allocated Share of any item or to vary the responsibility of which either of them is primarily responsible to perform the work or carry out the service of any item in Schedule “A”. The Owners shall be entitled to agree, in writing, to include the cost of any item not included in Schedule “A” and to designate the allocation among themselves of the cost of such item and which of them will be primarily liable to perform the work or service. In either of the situations described herein, upon notice being given to the other Owner, Schedule “A” to this Agreement shall thereby be deemed to be amended in accordance with such written agreement.
XVI. LIENS
If at any time an Owner (the “Defaulting Owner”) shall fail to pay to the other Owner hereunder (the “Creditor Party”) any sum of money payable to the Creditor Party pursuant to the provisions of this Agreement, then, in addition to any other rights which the Creditor Party may have by operation of law, the Creditor Party shall (unless otherwise specifically provided herein) have a lien, to secure the payment of such sum of money, together with all costs and interest accruing thereon pursuant to Section XV(1) hereof, against the Building of the Defaulting Party. Such lien shall arise immediately upon the receipt or deemed receipt of notice by the Creditor Party to the Defaulting Party demanding payment of said sum of money by the Defaulting Party and asserting the said lien against the Building of the Defaulting Party. From and after the date upon which such lien arises, the Creditor Party shall be entitled to file a caution or such other notice of such lien as may be permitted by the provisions of the Land Titles Act or any amendments thereto or by such other legislation that may be applicable to the title of the Project from time to time.
XVII. ENFORCEMENT OF LIEN AND OTHER RIGHTS
If a lien shall arise pursuant to the terms of this Agreement, such lien shall be enforceable in addition to the remedy otherwise available in law or at equity by enforcement in the same manner as a mortgage in default.
SCHEDULE “A”
Residential Commercial
Snow removal 12.65% 77.35%
Roof maintenance/repairs 66.58% 33.42%
Pest control 66.58% 33.42%
Fire/sprinkler/life safety 66.58% 33.42%
systems maintenance and
repair (Mechanical Room
Unit)
Administrative costs/ 66.58% 33.42%
management fees for
administering shared
facilities
Maintenance and repair of 66.58% 33.42%
shared electrical services
(Electrical Room Unit)
Maintenance and repair of 78.51% 21.49%
west exit stair and door (West
Stairwell Unit)
Maintenance and repair of 80.78% 19.22%
east exit stair and door (East
Stairwell Unit)
Maintenance/repair of 66.58% 33.42%
structural components
CITATION: Toronto Standard Condominium Corporation No. 1487 v. Market Lofts Inc., 2015 ONSC 1067
COURT FILE NO.: CV-13-476203
DATE: 20150218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1487 on its own behalf and on behalf of all unit holders of TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1487
Plaintiffs
– and –
MARKET LOFTS INC., 1166881 ONTARIO LTD., and SPRING ROLLS RESTAURANT
Defendants
REASONS FOR DECISION
PERELL J.
Released: February 18, 2015