Court File and Parties
COURT FILE NO.: CV-14-514647 DATE: 20170615 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
YORK CONDOMINIUM CORPORATION NO. 41 Applicant – and – NEIL SCHNEIDER and LINDA SCHNEIDER Respondents
Counsel: An Nguyen, for the Applicant Joseph Kary, for the Respondents
HEARD: June 12, 2017
Endorsement
DIAMOND J.:
Overview
[1] On October 20, 2015, I released a handwritten Endorsement (“my Order”) declaring the respondents to be in breach of the Judgment dated June 25, 2015 of Madam Justice Brown, which Judgment required the respondents to permit the applicant and/or its agents to enter their condominium unit and conduct a cleaning and “flush and vac” insecticide treatment. I further ordered the respondents to take all necessary steps to ensure Justice Brown’s judgment was implemented, and specifically mandated the pre-flush and vac cleaning of the unit to commence no later than November 13, 2015.
[2] Within this application, the applicant subsequently sought an Order (b) finding that the respondents breached my Order and (b) requiring the respondents to vacate and sell their condominium unit. That motion originally proceeded before me on January 15, 2016 at which time I exercised my discretion under Rule 38.10 of the Rules of Civil Procedure to order a trial of an issue, namely what exactly occurred on November 13 and 16, 2015 when the applicant and its agents attended at the respondents’ unit to enforce my Order. I seized myself of the trial of the issue, and ordered that all affiants be present for potential cross-examination.
[3] After several adjournments, the trial of the issue finally proceeded before me on June 12, 2017. At the hearing, the applicant sought only the declaratory relief that the respondents breached my Order, abandoning their request for an order mandating the sale of the respondents’ unit.
[4] At the conclusion of the trial of the issue, I took my decision under reserve.
Compliance with a Court Order
[5] In support of its motion, the applicant relies upon sections 134 and 135 of the Condominium Act, 1998, S.O. 1998, c. 19 (“the Act”). To my review, neither of those sections contain any provision supporting the specific relief sought, namely a declaratory order that the respondents have breached my Order. Section 134 allows the Court to make an order enforcing compliance with any provision of the Act. Section 135, known as the oppression remedy provision, does allow the Court to “make any order it deems proper” including prohibiting conduct or requiring the payment of compensation.
[6] In my view, what the applicant is really seeking is an order pursuant to Rule 60.12 of the Rules of Civil Procedure which allows the court to “make such order as is just” where a party fails to comply with an interlocutory order. Under Rule 60.12, the more serious the relief sought, the higher the threshold test. For example, if a party seeks to dismiss an action under Rule 60.12, it must prove that the breach of an interlocutory order was intentional, without reasonable excuse or otherwise constituted an abuse of the court’s process.
[7] The applicant is merely seeking declaratory relief. The respondents initially argued that the only reason the applicants were seeking this relief was to secure a costs award. In my view, the applicant is entitled to seek a declaratory relief on this motion. The question, as framed by the applicant during argument, is whether the respondents’ actions on November 13, 2015 constituted a failure to comply with my Order.
Summary of Evidence
[8] After the release of my Order, the applicant delivered a letter dated October 28, 2015 to the respondents providing them with notice that Orkin (the applicant’s agent) would be attending at the respondents’ unit on November 13, 2015 to “clean the unit and discard unsanitary items”. The letter went on to advise the respondents of “what they must do to prepare” for that attendance, including sorting through the contents of the unit to set aside and mark any belongings which the respondents wished to keep.
[9] The letter further stated that Orkin would prepare the unit for insecticide treatment to be carried out on November 16, 2015, all in accordance with an enclosed “Orkin Preparation Sheet”. The letter advised that Orkin would empty top and bottom cupboards in the kitchen and bathroom, and clear counter tops, top shelves and floor closets. As well, the letter warned that “furniture may be rearranged to ensure all areas are assessable”, presumably by Orkin.
[10] Unfortunately, the enclosed Orkin Preparation Sheet did not convey the same message as the letter. According to the Orkin Preparation Sheet, the occupants were required to empty top and bottom cupboards in the kitchen and bathroom, remove old shelving and floors of the closets. While the Orkin Preparation Sheet mandated the occupants to take the above steps, the letter stated that Orkin would take those steps. This was a somewhat confusing message.
[11] The applicant relied upon the evidence of its site administrator Corrine Cooke (“Cooke”), superintendent Timothy Hurst (“Hurst”), board member George Karaoylas (“Karaoylas”) and Orkin insecticide technician Scott French (“French”). All four affiants were cross-examined at the hearing. The affidavit of Kristy Ford (“Ford”), an Orkin preparation technician, was also filed but Ms. Ford did not attend for cross-examination at the hearing. As such, the applicant proceeded in the absence of Ms. Ford’s evidence.
[12] According to Cooke, the respondent Linda Schneider (“Linda”) answered the door on November 13, 2015 and promptly informed Cooke and Ford that no work would proceed inside the unit. Only Ford was allowed access to the unit, and according to the Orkin Incident Report, the respondents refused service of the unit on the basis that they had prepared the unit themselves. The Incident Report stated that the unit was “not up to standards to be properly treated”, and the respondents continued to refuse service. The Incident Report further noted dirty dishes in the kitchen, one hundred dead cockroaches on the floor throughout the apartment, and an infested couch in the second bedroom.
[13] According to the respondents, Linda (who was not cross-examined) did not tell Cooke or anyone else that day that “no work would proceed”. Linda testified that Ford wore an Orkin uniform, but had no cleaning supplies with her and never entered the apartment prepared to clean. Linda admits to suffering from Obsessive Compulsive Disorder (although there is no medical evidence to support this contention), and as a result has been “strongly resistant to allowing anyone she does not know into the unit”. However, Linda was adamant that on November 13, 2015 she did not try to prevent Ford from entering the unit.
[14] According to the respondent Neil Schneider (“Neil”), Ford inspected the unit and advised the respondents that “all was fine and the unit was ready for pest control”. Neil denied being advised by Ford on November 13, 2015 that the unit was not ready for treatment, and the respondents proceeded on the assumption that an Orkin representative would be back on November 16, 2015 to treat the unit.
[15] It is confusing that in the face of the Incident Report (which stated that the unit was not up to standards to be properly treated), the applicant nevertheless secured the attendance of French to attend on November 16, 2015 and carry out the flush and vac treatment. Not surprisingly, French’s evidence was that while the kitchens and bathrooms were prepared, the high cockroach infestation inside the unit precluded the flush and vac treatment as the full perimeter of all rooms and closets (baseboards, furniture, decor, ceilings, etc.) needed to be prepared and cleaned.
[16] Cooke gave further evidence that the reason for French’s November 16, 2015 attendance was that French needed to assess the respondents’ unit as he was a trained professional and qualified to determine whether a flush and vac treatment could take place. If this is true, then what was the point of Ford’s November 13, 2015 attendance and Incident Report? There is no evidence in the record before me that the respondents were instructed to take any further steps between November 13 and November 16, 2015 in order to further and better prepare the unit for the flush and vac treatment.
Decision
[17] The focus of the applicant’s argument rested upon its position that the respondents’ refusal to allow Ford access to the unit to complete the preparation for flush and vac treatment on November 13, 2015 amounted to a breach of my Order. In my view, while I am prepared to accept that the respondents refused Ford access for the stated purpose, the respondents were likely under the impression that they had carried out all that was necessary to prepare for the flush and vac treatment in accordance with the Orkin Preparation Sheet. At the hearing, the applicant relied on its letter to argue that all preparation was to be undertaken by Orkin as the applicant’s agent. As previously stated, while this is one available interpretation, the contents of the enclosed Orkin Preparation Sheet could easily lead to a different conclusion.
[18] There is no doubt that the respondents took some active steps to try and have the unit prepared for the scheduled flush and vac treatment. While the respondents’ attitude has been rather adversarial to date, I am not prepared to find that they breached my Order. There was obviously some confusion leading up to that attendance, which could have likely been remedied with clearer instructions from the applicant and/or Orkin.
[19] Accordingly, the applicant’s request for declaratory relief is dismissed.
Costs
[20] In my view, and subject to further submissions filed by the parties, this case is an appropriate instance for each party to bear their own costs. That said, I did not afford the parties an opportunity to make costs submissions at the conclusion of the hearing as I understood that there may have been offers to settle served and filed.
[21] If the parties take a different view than the one I have expressed, they are free to serve and file written costs submissions in accordance with the following schedule:
(a) the respondents may serve and file their costs submissions within 10 business days of the release of this Endorsement. Those submissions shall be no more than four pages including a Bill of Costs.
(b) the applicant shall thereafter have an additional 10 business days from the receipt of the respondents’ costs submissions to deliver its responding costs submissions which shall also be no more than four pages including a Bill of Costs.