CITATION: Dyke v. Metropolitan Toronto Condo. Corp. No. 972, 2015 ONSC 732

COURT FILE NO.: CV-11-443081

DATE: 20150130

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elizabeth Dyke, Applicant

– AND –

Metropolitan Toronto Condominium Corporation No. 972, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Elizabeth Dyke, in person, and Ryan Hauk, for the Applicant

Benjamin Rutherford, for the Respondent

David Tompkins, for the Respondent (in action CV-13-00486555)

Luke Saites, for Samir Gupta and Renu Gupta (in action CV-13-00486555)

Feizal Satchu and Parul Gupta, in person (in action CV-13-00486555)

HEARD: January 30, 2015

ENDORSEMENT

[1] The Applicant, Ms. Dyke, brings a motion for contempt and other ancillary relief flowing from my judgment of January 18, 2013. She also seeks adjudication of the damages portion of the Application.

[2] Mr. Tompkins, who is counsel for the Respondent, Metropolitan Toronto Condominium Corporation No. 972 (“Metro Condo”), in a companion action brought by Ms. Dyke (Court File No. CV-13-00486555, hereinafter the “Companion Action”), argues that the damages claim contained in the Application should not be adjudicated today, as the very same claim is contained in the Companion Action. He submits that under Rule 38.10 I have the power to convert the damages portion of the Application to an action and consolidate it with the Companion Action.

[3] Ms. Dyke explains that she commenced the Companion Action with her daughter as co-plaintiff, but that she now will bring that damages claim on her own behalf as originally framed in the Application. She has therefore brought a motion for leave to discontinue the Companion Action, which is scheduled to be heard by a Master next week.

[4] The pleadings in the Companion Action show that there are a number of defendants beyond just Metro Condo, and that there are cross-claims between the various defendants. Mr. Tompkins states that in order to properly adjudicate the damages issue, all of the defendants in the Companion Action must be before the court. He is supported in this request by Feizal Satchu and Parul Gupta, who are personal defendants in the Companion Action but who are not parties to the Application. Mr. Satchu, who has appeared here on his own behalf, states that it would be unfair to have the damages issues adjudicated without him and Ms. Gupta having the chance to participate and to present their own evidence.

[5] I agree that the proper adjudication of Ms. Dyke’s damages claim requires an action. Likewise, I am of the view that proper adjudication of the damages claim requires that all of the relevant parties – i.e. the various defendants named in the Companion Action – be before the court. It is also only logical that the cross-claims among those defendants be adjudicated at the same time as Ms.Dyke’s main claim for damages.

[6] I therefore direct that the damages portion of the Application proceed by way of action. Ms. Dyke shall have thirty days to issue a statement of claim. That statement of claim may take the same form as the statement of claim in the Companion Action, revised to reflect Ms. Dyke as the sole Plaintiff. Likewise, the defendants in the Companion Action may take twenty days after service of the new statement of claim to serve their respective statements of defense, which may take the same form as the statements of defense in the Companion Action revised to parallel the revisions made in Ms. Dyke’s new statement of claim. Ms. Dyke will have ten days after the last of the statements of defense is served on her to serve any reply.

[7] While I do not have the Companion Action before me, it stands to reason that the same damages claim cannot be litigated twice. I will leave it to the Master next week to determine whether it should be discontinued. In any case, the defendants in the Companion Action will be at liberty to seek appropriate relief if it turns out that there are two identical, or near identical, damages claim pending against them.

[8] As for the contempt motion, that turns on whether Metro Condo and its board oragents disregarded, intentionally violated, or otherwise flouted by order of January 18, 2013. That order required Metro Condo to take reasonable steps to ensure that Ms. Dyke will have quiet enjoyment of her condominium apartment.

[9] My order was issued in the context of the initial stages of this Application. At that stage, the evidence before the court was that the tenants immediately above Ms. Dyke’s apartment were using their premises as a dancing studio. I made this context clear at paragraph 24 of my January 18, 2013 reasons for judgment, as follows:

…it stands to reason that the Applicant is entitled to live underneath a residential apartment unit, and not underneath a professional dance studio. That level of quiet enjoyment is certainly within the Applicant’s reasonable expectation.

[10] All parties now agree that the dancing tenants moved out of the building in November 2013. Ms. Dyke complains that Metro Condo and its board members were too slow in implementing my January 2013 ruling, and that the steps that they put in place were cumbersome and did not satisfactorily resolve the dancing noises. She also submits that in any case there continue to be noises that disturb her coming from the upstairs apartment even after the dancing has ceased.

[11] Metro Condo wrote to the owners of the condominium above setting out steps to be taken in order to implement my order. In my view, Metro Condo could possibly have written to the owners and tenants above Ms. Dyke more immediately, and might have been more proactive in ensuring that the noises upstairs were muffled. They seem to have required Ms. Dyke to document her ongoing noise concerns in a detailed and fastidious way.

[12] That said, all of the complaints of dancing in the condominium building are now water under the bridge. Ms. Dyke conceded in her argument that since November 2013 there has been nothing other than ordinary residential use of the apartment above her. Her complaints now have to do with the annoying but sporadic sounds made when a chair is pulled up to the dining room table, or the upstairs tenant vacuums the floors or walks with shoes on the part of the floor that is uncovered by area rugs.

[13] The record before me contains photographs of the apartment above Ms. Dyke’s apartment. The impression is of a very attractive residence, with dark hardwood flooring and some rather elegant oriental-style area rugs. While the rugs cover only part of the hardwood floor, the overall impression is not of an apartment that is inhabited by tenants that stomp in their work boots or make any other unusual noises. Indeed, Ms. Dyke herself has indicated that she does not blame the post-November 2013 tenants above her for the disturbances that she continues to experience. As she put it, referring to the post-November 2013 tenant above her, “This poor guy thinks he’s being quiet, but I’m writing letters saying ‘no, it’s tortuous to us.’”

[14] Ms. Dyke appears to object to the occasional noises that result from ordinary residential usage. Although I do not doubt that she feels some discomfort from these sounds, what she seems to be seeking is a level of quiet to which an apartment dweller is not legally entitled. She was candid in describing her relief in late November 2013 when the dancing tenants moved. She indicated that after the old tenants moved out, “it was bliss. There wasn’t a sound. But then the new tenants moved in.”

[15] The test for contempt is stated in 884772 Ontario Ltd. v SHL Systemhouse Inc., 1993 CarswellOnt 4204, at para 18, as follows:

In satisfying the test relating to contempt of court, the order itself must be clear and unequivocal and not open to various interpretations. Secondly, the party disobeying the contempt order must do so in a deliberate and wilful fashion in order to satisfy the criminal nature of the contempt proceedings. Thirdly, in considering the evidence as to whether there has been a deliberate breach of the court order it must be proven beyond a reasonable doubt as opposed to just on a balance of probabilities. It is obvious that any doubt must be exercised in favour of the person alleged to be in breach of the order.

[16] The conduct of Metro Condo does not rise to this standard of contempt.

[17] There is no evidence of ongoing noise in the apartment above Ms. Dyke beyond that ordinarily associated with residential living. Ms. Dyke has a number of suggestions for further insulating the flooring of the condominium above her, but installing extra soundproofing under the hardwood floors is above and beyond the obligations that are on Metro Condo.

[18] Further, if Metro Condo was a tad slow or bureaucratic in its implementation of my January 2013 order, that can be argued and potentially form part of Ms. Dyke’s damages claim. The method by which they chose to approach this may have caused Ms. Dyke to suffer more of the annoying noises in the immediate aftermath of my order than she should have – although I emphasize that this is conjecture on my part, and is not a finding to be relied upon later. Further evidence would have to be submitted when the damages action is tried. However, nothing that Metro Condo or any of its board members or agents has done was contemptuous of my order in the sense that term is used in law.

[19] The contempt motion and motion for ancillary relief is therefore dismissed.

[20] Mr. Tompkins, counsel for Metro Condo in the Companion Action, requests costs of $5,000, or in the alternative that costs be left for the Master to decide next week. Mr. Saites, on behalf of Samir Gupta and Renu Gupta in the Companion Action, likewise submits that his clients’ costs be left to the Master hearing the leave to discontinue motion in the Companion Action. I will accordingly leave the costs for both of those parties to be determined by the Master hearing the discontinuance motion.

[21] Mr. Rutherford, counsel for Metro Condo in the Application, has requested costs in the amount of just over $66,000 on a partial indemnity basis and $97,000 on a substantial indemnity basis. He concedes that the amount is high for a one day motion, but counsel makes the point that the other condominium owners in the building should not have to bear the brunt of the high cost of defending this matter.

[22] For her part, Ms. Dyke’s view is that the matter has been made more complex and costly than necessary due to the way in which it was defended. She also makes the point that a portion of the Costs Outline served by Mr. Rutherford relates to a failed mediation, which is not something that Ms. Dyke should have to bear. She indicates that she was seeking to enforce in a bona fide way what she viewed as her rights and that there is no reason to award costs on a substantial indemnity basis. She also submits that she simply cannot afford the level of costs sought by Metro Condo.

[23] I feel considerable sympathy for Ms. Dyke. She has indicated that she is in poor health and is not currently working, and that the problems with the noise have caused her concern about the re-sale value of her condominium. Moreover, she has suffered the stress and anxiety of litigation during a difficult time in her life.

[24] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c ). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 OR (3d) 291 (Ont CA), at paras 26, 37.

[25] Given that a large portion of Mr. Rutherford’s Costs Outline relates to either work that pre-dates the Applicant’s contempt motion or that was associated with the unsuccessful mediation attempts, his request contains a substantial amount of unrecoverable costs. Further, while I take Mr. Rutherford’s point about sparing the innocent condominium owners excessive legal fees, I am mindful of ongoing concerns over access to justice. A condominium owner in Ms. Dyke’s position finds it difficult enough to deal with a board that is managed in the way of a large corporation like Metro Condo appears to be. She would have her access to justice entirely impeded if the costs she has to bear were as high as those requested here.

[26] I will exercise my discretion to award Metro Condo costs of this motion of just under one-third of its partial indemnity request. Ms. Dyke shall pay costs to Metro Condo in the amount of $20,000, inclusive of HST and disbursements.

Morgan J.

Date: January 30, 2015