2019 ONSC 6224
COURT FILE NO.: CV-19-620461
DATE: 2019-10-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.K.
Applicant
– and –
YORK REGION STANDARD CONDOMINIUM CORPORATION NO. [...]
Respondent
COUNSEL:
Antonio Casalinuovo and Megan Molloy, for the Applicant, Respondent on Motion
Christopher Jaglowitz, for York Region Standard Condominium Corporation No. [...], Appointed by the Court-Ordered Administrator
Megan Mackey, for the Group of Owners of York Region Standard Condominium Corporation No. [...], Moving Parties
HEARD: July 4, 2019 with supplementary written submissions on costs received September 11, September 27 and October 3, 2019
SUPPLEMENTARY REASONS - COSTS
KIMMEL J.
[1] For reasons released July 30, 2019, I dismissed the motion by the Moving Parties who sought to set aside, or in the alternative, suspend the operation of the Judgment of Dow J. that was granted ex parte on May 29, 2019, by which Dean McCabe as the Administrator and Inspector of the York Region Standard Condominium Corporation No. [...] for a period of one year from the date of the order.
[2] The Moving Parties indicated at the time the motion was heard that they might take issue with the applicant’s costs being paid by the Condominium Corporation because of their concerns about its already strained financial resources. In my earlier Reasons for Decision, I acknowledged that while the concern about finances may be valid, because the Moving Parties brought this motion accusing the applicant of serious misconduct (including the failure to make full and fair disclosure on the original application) the applicant had to respond to it and the applicant was ultimately successful and should be entitled to costs.
[3] The applicant’s costs submissions seek full indemnity costs and an order that the Moving Parties pay those costs personally, or that the Moving Parties be ordered to reimburse the Condominium Corporation for costs paid by it to the applicant, because of the unfounded allegations of fraud, dishonesty and other misconduct upon which their motion was grounded, and certain other conduct that was engaged in prior to the motion.
[4] These are valid considerations, along with the principles from the case of Davis v. Peel Condominium Corp. 22, 2013 ONSC 6265, for granting an award of full indemnity costs in favour of the applicant. However, I am not persuaded that the allegations or conduct of the Moving Parties were in furtherance of their own personal agendas or interests or that they conducted themselves in a way that would take this to the next level of requiring them to be personally responsible for the applicant’s costs. Although there were aspects of this case that became nasty and personal, ultimately, the Moving Parties were acting in furtherance of matters that they felt were of concern to all unit owners in their roles as newly elected board members, notwithstanding the challenges to the validity of their election.
[5] Having received and considered the submissions of the applicant, the Moving Parties and the Administrator, my view remains unchanged, that the same order as to costs should be made on this motion as was made in the May 29 Judgment. I order that the applicant shall be reimbursed by the Condominium Corporation for her costs of responding to this motion on a full indemnity basis. I fix and order these costs payable forthwith in the amount requested by the applicant’s counsel, of $36,226.82 inclusive of all fees, disbursements and applicable taxes. All parties appear to agree that the applicant is entitled to her full indemnity costs and neither the Administrator or the Moving Parties have objected to the amount claimed.
[6] The Moving Parties have also asked for their partial indemnity costs of this motion to be paid by the Condominium Corporation, even though their motion was dismissed. They claim partial success in that I allowed for the possibility of an election of a new board to be requisitioned at the annual general meeting scheduled for earlier this week (which would have otherwise been foreclosed by the May 29 Judgment) and they also rely on the Davis case to support the contention that even a losing party who brings forward an issue for the court’s consideration and determination that is of interest to all unit owners, not just themselves, is entitled to have some of their costs paid by the Condominium Corporation.
[7] The Administrator supports an award of partial indemnity costs to the Moving Parties in the amount of $15,000.00 all inclusive to be paid by the Condominium Corporation. I agree that this is appropriate in the circumstances of this case and I order partial indemnity costs of the Moving Parties, fixed in the amount of $15,000.00 all inclusive, to be paid by the Condominium Corporation forthwith.
[8] I make these costs awards in the exercise of my discretion under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.4 and Rule 57 of the Rules of Civil Procedure. I consider them to be fair and reasonable in the circumstances. See Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. 2634. The Administrator is authorized to pay these costs awards on behalf of the Condominium Corporation.
[9] I am hopeful that there is a path forward for this Condominium Corporation that will allow it to get back to self-governance and to address the financial concerns that must be addressed without the necessity of resort to further contested and costly court proceedings. This costs award is not intended as a precedent or invitation for further contested litigation at the expense of the Condominium Corporation.
Kimmel J.
Released: October 25, 2019
2019 ONSC 6224
COURT FILE NO.: CV-19-620461
DATE: 20191025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.K.
Applicant
– and –
YORK REGION STANDARD CONDOMINIUM CORPORATION NO. [...]
Respondent
SUPPLEMENTARY REASONS - COSTS
Kimmel J.
Released: October 25, 2019