Condominium Corporation No. 937, 2018 ONSC 7296
Court File and Parties
Court File No.: CV-18-330-00 Date: 2018-12-07 Ontario Superior Court of Justice
B E T W E E N:
2214416 ONTARIO INC. Harpreet Singh Makkar, for the Applicant Applicant
- and -
PEEL STANDARD CONDOMINIUM CORPORATION NO. 937 also known as BRISDALE PLAZA INC. MAPLE RIDGE COMMUNITY MANAGEMENT ROYAL PAAN
Carol Dirks, for Peel Standard Condominium Corporation No. 937 Ben V. Hanuka, for Royal Paan Respondent
Heard: February 8, 2018, at Brampton, Ontario
Price J.
Revised Reasons For Order
OVERVIEW
[1] 2214416 Ontario Inc. (“221”), owns two units of a condominium that operates a commercial plaza in Brampton. 221 wants to sell its units to a purchaser who wants to open and operate a restaurant in the units, serving primarily Punjabi and Mughlai style foods and sweets and samosas as an exclusive business use permitted under the condominium corporation’s declaration (the “Declaration”). The condominium corporation has refused permission to the buyer to do so, ostensibly because the owners of other units already operate restaurants of the same kind and have been granted the exclusive right to such use.
[2] 221 says that the Condominium Corporation has refused to produce the records that would entitle the other unit owners to the exclusive use that 221 has requested for its purchaser and has failed to enforce 221’s right to such use in accordance with the Declaration. The condominium corporation relies on an article of the Declaration that it says absolves it of further steps to enforce 221’s rights under the Declaration. 221 argues that the said article is inconsistent with the Condominium Act (the “Act”) [1] and that the corporation, in refusing its permission, is interpreting the Declaration in an oppressive manner that unreasonably and unfairly favours the other unit owner.
[3] The condominium corporation argues that the Declaration requires 221 to have all disputes regarding the Declaration submitted to mediation/arbitration. 221 argues that the dispute involves a contravention of the Condominium Act itself and, as such, is a proper basis for an application to this court. The condominium corporation argues that there is no contravention of the Act and that, in any event, 221’s rights have not been violated, and that 221 is seeking a use of its units that has already been granted exclusively to another unit owner.
BACKGROUND FACTS
[4] Peel Standard Condominium Corporation No. 937, (“PSCC 937”) operates a commercial plaza at 5 Brisdale Drive, Brampton (“the Plaza”). PSCC 937 has made a Declaration under the Condominium Act which grants exclusive rights to unit owners to operate certain businesses there.
[5] Sagar Aurora (“Mr. Aurora”) is the principal of several corporations that operate businesses at the Plaza. In particular, Mr. Aurora is:
- A director of Prem Sagar Investments Ltd., an Ontario corporation that, in April 2014, bought units 2 and 3 in the Plaza, which it leases to the operators of a Jamaican and a Middle Eastern restaurant, respectively.
- A director and shareholder of Gurusager Ventures Ltd., an Ontario corporation with its registered head office in Brampton, Ontario, that, in 2013, bought unit 6 in the Plaza, where it operates a “Royal Paan” Indian restaurant through a franchisee owner/operator.
- The sole director of Royal Paan, an Indian restaurant franchise system that operates through a franchisor and affiliate federal corporations, including Royal Paan Franchising Ltd. and Royal Paan Leasing Ltd.
- A principal of Arvino Ventures Ltd., an Ontario corporation that owns units 7 and 8 in the Plaza, where it operates a “Slumdog Bar and Grill” serving Indian, Hakka Chinese and general menu items through a franchisee owner/operator.
- The sole director of a franchisor and affiliate corporations that operate the Slumdog Bar and Grill franchise system.
[6] Ravinder Malik (“Mr. Malik”) is the principal of 2214416 Ontario Inc. (“221”), an Ontario corporation that owns units 109 and 110 at the Plaza, where it has operated a “Hasty Market” convenience store. In July 2017, 221 listed its units for sale.
[7] Mr. Aurora and his wife made offers to buy units 109 and 110, which 221 did not accept. During the course of their negotiations, Mr. Aurora informed Mr. Malik that he intended to operate an Indian restaurant.
[8] On October 17, 2017, 221 signed an Agreement of Purchase and Sale (“APS”) by which it agreed to sell its two units at the Plaza.
[9] In October 2017, Mr. Aurora met with Bachitter Saini (“Mr. Saini”), the President of PSCC 937’s board of directors, and notified him that he intended to convert “Slumdog Bar and Grill” into an Indian restaurant.
[10] On October 25, 2017, 221 advised PSCC 937’s Property Manager, Maple Ridge Community Manager, of its intended change of business use in its Units from a convenience store to a restaurant as permitted under the “Exclusive Business Use” article 2.01(d)(xii) of PSCC 937’s Declaration, and asked Maple Ridge if “Indian sweets and restaurant” was an available permitted use. On October 26, 2017, Pawan Gupta, property manager at Maple Ridge, advised Mr. Malik that he would verify the current uses in the Plaza to see if any other owner operated a similar business there.
[11] On November 2, 2017, at Mr. Saini’s request, Mr. Aurora sent to him a copy of Prem Sagar’s purchase and sale agreements for units 2 and 3, which showed that Mr. Aurora intended to open an Indian restaurant. Mr. Aurora also sent to Mr. Gupta, the property manager, an email confirming his intention to convert “Slumdog” into an Indian restaurant.
[12] On January 1, 2018, the lawyer for 221’s prospective purchaser sent an email to PSCC 937 advising it of his client’s intended use of units 109 and 110 to operate an Indian sweets and restaurant in the units. On January 2, 2018, PSCC 937’s Property Manager responded, advising that:
Royal Paan and Slumdog (One owner) is already selling all items of Indian sweets and Restaurant, so no other exclusive rights for this can be granted as per the restrictions mentioned in Declaration of PSCC 937.
[13] 221’s sale of units 109 and 110 was originally scheduled to close on January 12, 2018, but was extended to January 26, 2018, and then further extended, because PSCC 937 refused to give 221 its permission to operate the proposed restaurants in the two units.
[14] Since January 17, 2018, 221 has asked PSCC 937 to produce a record of owners or tenants registered with an Exclusive Business Use in accordance with article 2.10(d)(i) to (xxiv) of its Declaration, in an effort to clarify what businesses are being carried on in the existing units of the Plaza. PSCC 937 has failed or refused to provide the record, which 221 says amounts to a breach of PSCC 937’s obligations under s. 135 of the Act.
[15] 221 issued the present application and served its Notice of Application and Application Record on PSCC 937 and Royal Paan on January 25, 2018. 221 does not seek any direct relief against Royal Paan, which is doing business in unit 6 of the Plaza, but has made it a respondent to the Application as it may be affected by the orders that 221 seeks.
[16] By a Notice of Abandonment that it served with its Notice of Application on January 25, 2018, 221 abandoned its application as against Maple Ridge.
ISSUES
[17] The court is asked to determine the following issues:
(a) Does the present action involve a dispute concerning the Declaration that requires mediation/arbitration, or a dispute concerning compliance with the Condominium Act, for which a remedy is available from the Court?
(b) Is Article 2.01(i) of the Declaration, which states that PSCC 937 is not responsible for enforcing the restrictive provisions of the Declaration, in conflict with the Act and therefore unenforceable?
(c) Is a restaurant serving primarily Punjabi and Mughlai style foods and sweets and samosas an exclusive business use permitted under article 2.10(d)(xii) of PSCC 937’s Declaration?
(d) Has PSCC 937 acted in a manner that is oppressive or unfairly prejudicial to 221 by: (i) refusing to produce a record of owners or tenants and their stated Exclusive Business Use as of October 25, 2017, as referred to in article 2.01(d)(i) to (xxiv) of its Declaration? (ii) refusing to permit 221 and/or its prospective purchaser to open and operate an Indian restaurant and sweets oppressive or unfairly prejudicial to 221?
(e) If PSCC 937 has acted in an oppressive or unfairly prejudicial manner toward 221, what is the appropriate remedy?
PARTIES’ POSITIONS
a) 221’s position
[18] 221 takes the position that its prospective purchaser’s lawyer sought only to confirm that the use of the units to operate an Indian sweets and restaurant business was permitted.
[19] 221 says that neither of the existing two businesses, nor any other owner or tenant in the plaza, is operating a restaurant serving primarily traditional Punjabi and Mughai style foods, and sweets and samosas, which is an Exclusive Business Use as defined by article 2.01(d)(xii) of the Declaration.
[20] 221 says that neither Royal Paan nor Slumdog is operating a restaurant serving primarily traditional Punjabi and Mughlai style foods, and sweets and samosas, an Exclusive Business Use described in article 2.01(d)(xii) of PSCC 937’s Declaration, or enjoy exclusivity for such a business under the Declaration. In particular, it says that:
(a) Royal Paan sells primarily paan (an East Indian food), and additionally sells chewing tobacco, falooda, ice cream, milk shakes, Bombay style fast food (chaat) and South Indian cuisine described in its menu, pursuant to the Exclusive Business Use described in Article 2.01(3)(x) of PSCC 937’s Declaration. 221 says that Royal Paan is not operating an Indian sweets shop and restaurant and enjoys no exclusivity in that regard.
(b) Slumdog operates a sports bar and serves Hakka Chinese food pursuant to the Exclusive Business Use described in Article 2.01(d)(i) and/or 2.01(d)(xi) of PSCC 937’s Declaration.
[21] 221 argues that an Indian sweets shop and restaurant is not an existing exclusive business use or a prohibited use as defined in PSCC 937’s Declaration.
[22] 221 submits that Article 2.01(i) of the Declaration, which states that PSCC 937 is not responsible for enforcing the restrictive provisions of the Declaration, conflicts with the Act and is therefore outside the mediation/arbitration provisions of the Act. It seeks a declaration that the Declaration is amended to delete the impugned terms of Article 2.01(i) and an Order requiring PSCC 937 to comply with the Act and enforce the Declaration by producing the record of exclusive uses and grant 221 the exclusive right to operate an Indian sweets and restaurant.
b) PSCC 937’s position
[23] PSCC 937 submits that the present action involves a dispute regarding the Declaration and that the Act requires the parties to submit the dispute to mediation/arbitration.
[24] PSCC 937 submits that it has taken “reasonable steps to enforce compliance,” by communicating with the Unit owners concerning the existing exclusive uses of Unit owners and that it has no further obligations toward 221 in that regard. In any event, it submits that “Currently, Unit 6 is occupied by Royal Paan, which is a restaurant serving primarily Indian food and sweets as per 2.10(d)(xii). This is its primary use.” It therefore submits that 221’s rights under the Declaration have not been infringed.
ANALYSIS AND EVIDENCE
a) Does the present action involve a dispute concerning the Declaration, which requires mediation/arbitration, or a dispute concerning compliance with the Condominium Act, for which a remedy is available from the Court?
Legislative framework
[25] The Condominium Act provides:
132(1) Every agreement mentioned in subsection (2) shall be deemed to contain a provision to submit a disagreement between the parties with respect to the agreement to,
(a) mediation by a person selected by the parties unless the parties have previously submitted the disagreement to mediation; and
(b) unless a mediator has obtained a settlement between the parties with respect to the disagreement, arbitration under the Arbitration Act, 1991,
(i) 60 days after the parties submit the disagreement to mediation, if the parties have not selected a mediator under clause (a), or
(ii) 30 days after the mediator selected under clause (a) delivers a notice stating that the medication has failed.
(4) Every declaration shall be deemed to contain a provision that the corporation and the owners agree to submit a disagreement between the parties with respect to the declaration, by-laws, or rules to mediation and arbitration in accordance with clauses (1)(a) and (b), respectively.
134(1) Subject to subsection (2), an owner, an occupier of a proposed unit, a corporation, a declarant, a lessor of a leasehold condominium corporation or a mortgagee of a unit may make an application to the Superior Court of Justice for an order enforcing compliance with any provision of this Act, the declaration, the by-laws, the rules or an agreement between two or more corporations for the mutual use, provision or maintenance or the cost-sharing of facilities or services of any of the parties to the agreement.
[Emphasis added.]
Jurisprudence
[26] The mediation and arbitration processes provided for in section 132 are available only for disputes regarding the declaration, by-laws, or rules of a condominium corporation, not disputes regarding the Act itself. For this reason, a party may apply to the Superior Court for enforcement of the Act without first attempting to achieve a resolution of the dispute through mediation or arbitration.
[27] In McKinstry v. York Condominium Corp. No. 472, (2003), Juriansz J. (as he then was) rejected the argument that the court lacked jurisdiction over a dispute about renovations allegedly in violation of the declaration. Juriansz J. stated:
[19] The legislature's objective in enacting s. 132 is to enable the resolution of disputes arising within a condominium community through the more informal procedures of mediation and arbitration. To attain this objective, the phrase "with respect to the declaration, by-laws or rules" in s. 132(4), which applies to disagreements between owners and the condominium corporation, should be given a generous interpretation. It applies, in my view, to disagreements about the validity, interpretation, application, or non-application of the declaration, by-laws and rules. It must be noted that s. 132(4) does not require owners and condominium corporations to submit disagreements with respect to the Act to mediation and arbitration. [2]
[Emphasis added.]
[28] There are some applications that clearly concern a violation of the Act. In such cases, the court has assumed jurisdiction pursuant to s. 134 without requiring the parties to first engage in mediation or arbitration pursuant to s. 134(2). In Peel Condominium Corp. No. 283 v. Genik, (2007), the unit owner caused a satellite dish to be installed on her unit without the permission of the corporation, contrary to s. 98 of the Act. The court held that the satellite dish was installed in violation of the legislation and further stated that it was not a situation for which mediation or arbitration was required. [3]
[29] Similarly, in Channa v. Carleton Condominium Corp. No. 429, (2011), Polowin J. held that mediation and arbitration are not appropriate to determine “the issue of whether one must comply with the law itself” regarding alterations to common elements. [4]
[30] In Metropolitan Toronto Condominium Corporation No. 747 v. Korolekh, (2010), Code J. found that “the right to bring court proceedings pursuant to s. 134 is broader than the duty to attempt mediation under s. 132.” He further pointed out that the Act contemplates at s. 134(2) that the parties may take their disputes to the court before mediation. [5]
[31] The court retains jurisdiction to determine whether an application is, in essence, to obtain compliance with the Act, or whether it concerns a disagreement over the Declaration, by-laws, or rules of the corporation. It is not the language used in an Application that determines the nature of the claim and, hence, whether or not the court has jurisdiction over it. The Supreme Court of Canada made this point in Non-Marine Underwriters, Lloyd’s of London v. Scalera, (2000), Iacobucci J. stated that “a court must look beyond the choice of labels, and examine the substance of the allegations contained in the pleadings.” [6]
[32] Thus, courts are not bound by the legal label used by a condominium corporation in determining whether an Application is, in essence, to enforce compliance with the Act, or is simply framed in that manner as a means of avoiding the obligation to submit the dispute to mediation or. In York Region Condominium Corporation No. 890 v. 1185010 Ontario Inc., (2007), Cullity J. found that mediation was “available” because the Application, ostensibly brought to enforce the Act, was, in reality, a dispute over the Declaration. [7]
Applying the legal principles to the present case
[33] I find that in the present case, the dispute is substantially one to enforce compliance with the Act and that it is necessary and reasonable to allow 221 to apply to the court for a remedy. What 221 alleges, in essence, is that PSCC 937 is being influenced by Mr. Aurora who, by reason of his ownership of many units in the Plaza, is able to have his way with the Board even if it means denying to 221 its rights under the Declaration that the Board is obliged by the Act to enforce fairly. 221 alleges that PSCC 937 is defaulting in its legal obligations under the Act by failing to maintain the records of written notices of a unit owner’s intention to undertake a use, and of its request for exclusivity, and in its obligation to enforce the priority that 221 is entitled to by reason of its prior notification of its intention to undertake the use, which the Declaration entitles it to undertake with exclusivity.
[34] In this case, where 221 claims both a breach of the Declaration, and that PSCC 937’s interpretation of the Declaration conflicts with the Act, it falls to the court to ensure that the Act is complied with and to determine the appropriate remedy. This is particularly true in the present circumstances, where 221 alleges oppression by another unit owner, in which the board of directors of the condominium corporation is alleged to be complicit.
b) Is Article 2.01(i) of the Declaration, which states that PSCC 937 is not responsible for enforcing the restrictive provisions of the Declaration, in conflict with the Act?
Legislative framework
[35] The Condominium Act provides:
7(5) If any provision in a declaration is inconsistent with the provisions of this Act, the provisions of this Act prevail and the declaration shall be deemed to be amended accordingly.
17(3) The corporation has a duty to take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules.
37(1) Every director and every officer of a corporation in exercising the powers and discharging the duties of office shall,
(a) act honestly and in good faith; and
(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. [8]
[Emphasis added]
Applying the legal principles to the facts of this case
[36] The Declaration provides:
2.01(i) In the event of a breach of the provisions herein, then the aggrieved party shall, at its sole costs and expense, and in its sole discretion, take such legal enforcement actions as such aggrieved party deems necessary in compliance with the Declaration, By-laws and the Act. For greater clarity, the Corporation’s sole role is to retain a record of those Exclusive Business Uses of which it is or has been notified and to advise, as provided for herein, whether such Exclusive Business Use is available. No enforcement action to protect an Owner’s or tenant’s Exclusive Business Use shall be required to be taken by the Condominium Corporation; it being the intent that the Condominium Corporation shall not in any way be required to enforce these provisions on behalf of any particular Owner, tenant, or occupant of a Unit.
[Emphasis added.]
[37] Article 2.01(i) is contrary to s. 17(3) of the Act. Section 7(5) of the Act provides that if any provision in a declaration is inconsistent with the provisions of this Act, the provisions of this Act prevail. A Declaration shall be made that Article 2.01(i) of the Declaration is deemed to be amended to delete the words highlighted above.
d) Has PSCC 937 acted in a manner that is oppressive or unfairly prejudicial to 221 by:
i. refusing to produce a record of owners or tenants and their stated Exclusive Business Use as of October 25, 2017, as referred to in article 2.01(d)(i) to (xxiv) of its Declaration? ii. refusing to permit 221 and/or its prospective purchaser to open and operate an Indian restaurant and sweets oppressive or unfairly prejudicial to 221?
Legislative framework
[38] The Condominium Act provides:
135(1) An owner, a corporation, a declarant or a mortgagee of a unit may make an application to the Superior Court of Justice for an Order under this section.
(2) On an application, if the court determines that the conduct of an owner, a corporation, a declarant or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant, it may make an order to rectify the matter.
(3) On an application, the judge may make any order the judge deems proper, including:
(a) an order prohibiting the conduct referred to in the application; and
(b) an order requiring the payment of compensation.
[Emphasis added.]
[39] Section 135 grants the Superior Court the jurisdiction to protect condominium owners, corporations, declarants, and mortgagees from unfair treatment. The oppression remedy has been described as the Charter of Rights and Freedoms of corporate law. It is broad and flexible, allowing any type of corporate activity to be the subject of judicial scrutiny. [9]
[40] The parties’ reasonable expectations are worthy of protection, and such expectations have become a benchmark in the corporate oppression remedy cases. [10]
Applying the legal principles to the facts of this case
[41] The Declaration provides:
2.01(f) In order to retain and/or utilize the aforementioned Exclusive Business Uses provided for herein, each Owner or tenant with such Exclusive Business Use or proposed Exclusive Business Use shall notify the Corporation, in writing, of such use and shall from such date, have a period of twelve (12) months thereafter to commence operations therefrom. In the event that such Owner or tenant does not commence operating such Exclusive Business Use within the aforementioned twelve (12) month period, such Owner or tenant shall forfeit its exclusivity with respect to such use, without any notice, unless such Owner or tenant obtains from the Board an extension of commencement of such business operations from such Unit which may, in the sole discretion of the Board, acting reasonably, be granted on one occasion for a maximum of three (3) months.
(g) The Corporation shall maintain a record of the Owners or tenants and its stated Exclusive Business Use referred to in paragraph 2.01(d)(i)-(xxiv).
[Emphasis added]
[42] PSCC 937 relies on a letter from their lawyer Carol Dirks, dated January 23, 2018, to 221’s lawyers Ms. Dirks writes that on January 2, 2018, after reviewing its record of owners and/or tenants that have notified the corporation in writing of such exclusive business use, Mr. Gupta, on behalf of PSCC 937, responded:
Please be advised that Royal Paan and Slumdog (one owner) is already selling all items of Indian sweets and Restaurant, so no other exclusive right for this can be granted as per the restrictions mentioned in Declaration of PSCC 937.
[43] Ms. Dirks did not identify, provide the particulars as to date, etc., or produce the records that would disclose the priority of notification of exclusive use. 221 was entitled to the particulars and production of such records, which it must rely on in accordance with the Declaration. The letter is not sufficient evidence that PSCC 937 has complied with its obligations under the Act.
[44] 221 had a reasonable expectation, based on the Condominium Act, s. 37(1)(a), that PSCC 937 would interpret the provisions of the Declaration in a reasonable manner and not in a way that unfairly disregards 221’s interests. It was entitled to expect that PSCC 937’s officers and directors would act honestly and in good faith in enforcing the Declaration fairly and in a manner that was not subject to the greater influence of Mr. Aurora to gain priority over 221’s requested exclusive use, to which 221 was entitled on a plain reading of the Declaration.
[45] PSCC 937’s failure to maintain and produce to 221 a record of the owners or tenants and the stated Exclusive Business Use for each, unfairly disregarded 221’s interests and amounted to oppressive conduct, as the record is required as evidence of the priority of 221’s exclusive use request.
[46] This is not a case such as Haas v. Gunasekaram, (2016), in which the Ontario Court of Appeal held that oppression and misrepresentation claims between shareholders, where the shareholders agreement contained an arbitration clause, were governed by the arbitration requirement. [11] In the present case, 221 alleges that PSCC 937, in effect, conspired with Mr. Aurora and his companies to defeat 221’s claim to exclusive use and failed to maintain the proper records, or to produce them to 221.
c) Is a restaurant serving primarily Punjabi and Mughlai style foods and sweets and samosas an exclusive business use permitted under article 2.10(d)(xii) of PSCC 937’s Declaration?
[47] The Declaration provides:
2.01 General Use
The occupation and use of the Units shall be in accordance with the following restrictions and stipulations:
(d) Further Restrictions on Use
Subject to the provisions hereinafter set out, no Owner, nor such Owner’s tenants, occupants, licensees or any other person utilizing such Owner’s Unit(s), shall use or occupy their Unit for, nor operate or engage from within or from such Unit(s), in any of the following operations, which shall constitute exclusive business uses available for the Unit(s) from time to time (“Exclusive Business Uses”) (unless two or more contiguous Units are owned by the same Owner and are operated as one of the following business operations), if such Exclusive Business Use is already being carried on in another Unit as at the date that such Owner, tenant, occupants licensees or any other person utilizing such Owner’s Unit seeks to engage in such existing Exclusive Business Use:
(x) a store whose primary business is the sale and rental, at retail…and including serving paan (East Indian), chewing tobacco, falooda, ice cream, milk shakes, smoothies, frozen yogurt, Bombay style fast food (chaat) and South Indian cuisine (including, dosa, idi, meduwada and kulfi) but which shall not engage, as a primary use, in the sale of anything exclusively allocated herein to other Units;
(xii) a restaurant with a primary use of serving traditional Punjabi and Mughlai style foods, and sweets and samosas, in compliance with Applicable Zoning By-laws, but which shall not engage, as a primary use, in the sale of anything exclusively allocated herein to other Unit;
[48] On a plain reading of Article 2.01 (d)(xii), a restaurant serving primarily Punjabi and Mughlai style foods and sweets and samosas is an exclusive business use permitted under PSCC 937’s Declaration.
[49] PSCC 937, in its property manager’s email dated January 2, 2017, stated that,
Royal Paan and Slumdog (One owner) is already selling all items of Indian sweets and Restaurant, so no other exclusive rights for this can be granted as per the restrictions mentioned in Declaration of PSCC 937.
[50] PSCC 937 now takes the position that:
Currently, Unit 6 is occupied by Royal Paan which is a restaurant serving primarily Indian food and sweets as per 2.10(d)(xii). This is its primary use.
[51] PSCC 937’s response is not in conformity with its Declaration and does not fairly recognize the exclusive use that 221 requested.
CONCLUSION AND ORDER
[52] For the foregoing reasons, it is ordered and declared that:
Article 2.01(i) of the Declaration of PSCC 937 is inconsistent with s. 17(3) of the Condominium Act, 1998, S.O. 1998, c. 19, and is therefore deemed to be amended by deleting the words, “No enforcement action to protect an Owner’s or tenant’s Exclusive Business Use shall be required to be taken by the Condominium Corporation; it being the intent that the Condominium Corporation shall not in any way be required to enforce these provisions on behalf of any particular Owner, tenant, or occupant of a Unit.”
PSCC 937’s refusal to provide a record of owners or tenants and their stated Exclusive Business Use, as described in Article 2.01(d)(i) – (xxiv) of its Declaration as of October 25, 2017, and today is unfairly prejudicial to and unfairly disregards 221’s interests.
PSCC 937 shall forthwith produce to 221 its complete record of the owners and tenants of the Plaza with their stated Exclusive Business Use referred to in Article 2.01(d)(i) – (xxiv) of its Declaration as of October 25, 2017, and today.
PSCC 937’s refusal to permit 221 and/or its prospective purchaser to open and operate a restaurant serving primarily traditional Punjabi and Mughlai style foods and sweets and samosas is oppressive and unfair to 221 and in breach of s. 135 of the Act.
PSCC 937 shall forthwith permit 221 and/or its prospective purchaser an Exclusive Business Use to open and operate a restaurant serving primarily traditional Punjabi and Mughlai style foods, and sweets and samosas.
The balance of the Application is adjourned to a date to be arranged with the Trial Office for an assessment of 221’s damages resulting from PSCC 937’s breach of s. 135 of the Act.
The costs of the Application shall be determined by the judge making the assessment of damages.
221 shall be exempt from contributing their proportional share via their common expenses to such amounts as this court orders PSCC 937 to pay to 221.
Price J.
Released: December 7, 2018