COURT FILE NO.: CV-16-566058 DATE: 2020/03/18 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
1229965 ONTARIO INC. c.o.b. COLMVEST HOLDINGS CORPORATION Plaintiff
- and - YORK CONDOMINIUM CORPORATION NO. 263, MARIA JANA JACKSON, SIMON LOUIS JACKSON, MARY BOYD, ROBINDRANATH GHOSH, PAULA GHOSH, STEPHEN JOHN BANKES DRIELSMA, MARILYN WENDY BANKES DRIELSMA, ALAN DAVID LURIE, LYNNE SANDRA LURRIE, THERESA JACKSON, WILLIAM CHRISTOPHER JACKSON, GRAHAM CARVER, BARBARA CARVER, WARREN DAVID WAGMAN, STEPHEN LLOYD VOISIN, GREGORY BERNARD O'DONOHUE, RUTH MARGLES, HAROLD MARGLES, PRATHIBA SHAMMI, KONRAD BAERVELDT, HELEN BAERVELDT, and LEONARD ARTHUR NICHOLSON Defendants
Counsel: Benjamin J. Rutherford for the Plaintiff Linda Phillips-Smith, Avi Sharabi, and Laurie Taylor-Graham for the Defendants
Heard: February 13, 2020
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] William Meany, through his corporation, the Plaintiff, 1229965 Ontario Inc. [^1] is the owner of a Unit in the Defendant York Condominium Corporation No. 263 (the “Condo Corp.”). For the purposes of these Reasons for Decision, I shall refer to the Plaintiff as Mr. Meany.
[2] The Condo Corp. manages a 15-storey residential condominium building at 423 Avenue Rd. in Toronto. There is a dispute about the boundaries of Mr. Meany’s Unit, which is on the roof of the Condo Corp.’s building.
[3] In this action, Mr. Meany sues the Condo Corp. and all of the Unit Owners in the building, who have Units below his rooftop Unit.
[4] Thus, Mr. Meany sues his neighbors, the Defendants: (1) Helen Baerveldt and Konrad Baerveldt; (2) Mary Boyd; (3) Barbara Carver and Graham Carver; (4) Marilyn Wendy Bankes Drielsma and Stephen John Bankes Drielsma; (5) Paula Ghosh and Robindranath (Robin) Ghosh; (6) Maria Jana Jackson Simon Louis Jackson, Theresa Jackson, and William Christopher Jackson; (7) Alan David Lurie and Lynne Sandra Lurie; (8) Ruth Margles and Harold Margles; (9) Leonard Arthur Nicholson; (10) Gregrory Bernard O’Donohue; (11) Prathiba Shammi; (12) Stephen Lloyd Yousin; and (13) Warren David Wagman;
[5] Mr. Meany sues the Condo Corp. and his neighbors for (my emphasis added, for reasons that will become apparent below):
a. compensation pursuant to s. 135 (b) of the Condominium Act, 1998 for oppression in the amount of $250,000; b. damages for trespass, nuisance, and invasion of privacy in the amount of $250,000; c. damages for loss of rent and loss of quiet enjoyment in the amount of $250,000; d. punitive and exemplary damages in the amount of $150,000; e. a declaration that the Condo Corp has breached sections 17, 19, 117, and 119 of the Condominium Act, 1998; f. an interim and permanent injunction prohibiting the Defendants from accessing the balcony on level 15 of the building and from otherwise entering Unit 15 for any purpose and/or permitting others under their care or control from doing so unless the access is done by the Condo Corp. in compliance with s. 19 of the Condominium Act, 1998; g. a declaration that the Unit 15 balcony is an exclusive use common element for the purposes of Schedule “E” paragraph 3 of the Declaration of the Condo Corp; h. a declaration that the area measuring roughly four feet by eleven fee in the front of the elevator in Unit 15 together with the hallway running west and east to the south of the elevator and exterior door in the west wall (the “Area”) forms part of Unit 15; i. in the alternative, a declaration that the owner of Unit 15 has an exclusive easement in perpetuity over the Area; j. in the alternative, an order pursuant to s. 109 of the Condominium Act, 1998, amending the declaration and description of the Condo Corp. to show that the Area forms part of Unit 15 and the Unit 15 Balcony is an exclusive use common element for Unit 15; k. in the alternative to (h) to (j) damages against the Condo Corp. and the Unit Owners in an amount equal to their proportional interest in the common elements in the amount of $500,000 for monies expended in the refurbishment of Unit 15; l. a declaration that the owner of Unit 15 has an exclusive easement in perpetuity over the two closets currently being used for storage; m. in the alternative to (k) an order that the Condo Corp. enter into an agreement contemplated by s. 98 of the Condominium Act, 1998 granting use in perpetuity of the alcove and storage closet; and n. pre-judgment and post-judgment interest in accordance with the Courts of Justice Act.
[6] The Defendants bring a motion for a partial summary judgment. They seek:
a. a Declaration that, Elevator Landing, the Interior Hallway, the South Stairwell, and the Terrace, which I shall refer to as the Roof, are common elements; b. an Order dismissing the action as against the Unit Owner Defendants; and c. an Order dismissing the Plaintiff’s claims for relief found in paragraphs b, c, f, g, h, i, j, k, 1, and m of paragraph 1 of the Amended Statement of Claim.
[7] For the reasons that follow, I grant partial summary judgments to both Mr. Meany and to the Defendants as follows.
[8] To Mr. Meany, I grant:
a. an order pursuant to s. 109 of the Condominium Act, 1998 amending the Declaration and Description of the Condo Corp. to show that the Elevator Landing is a part of Unit 15.
[9] To the Defendants, I grant:
a. a Declaration that the Interior Hallway, the South Stairwell, and the Roof are common elements; b. an Order dismissing the action as against the Unit Owner Defendants; and. c. an Order dismissing Mr. Meany’s claims in subparagraphs b, c, f, g, h, i, k, 1, and m of paragraph 1 of the Amended Statement of Claim.
B. Facts
1. The Building
[10] In 1962, the building of the Condo Corp. was constructed as an apartment building. The building consists of fifteen stories.
[11] In 1976, the building was converted into a condominium of 14 Units. The Declaration and Description were registered on June 10, 1976 in the Land Titles Division of the Registry Office of Toronto (No. 66) as instrument number B503254. The lands are governed by the Land Titles Act.
[12] Paragraph 2 of the Condominium Declaration states that: “the monuments controlling the extent of the Units are the physical surfaces mentioned in Schedule "B. "Schedule "B" states, in part that: “he vertical boundaries of each unit are the back side surface of the plaster walls and the unfinished and interior surfaces of windows, window frames, exterior doors and frames.” Schedule "E" of Condo Corp.’s Declaration provides that owners have the exclusive use of any balcony adjoining the owner's Unit.
[13] The ground floor of the building consists of the lobby, a common element, and a small rental suite. There is an elevator for access to the Units above. To access a Unit, the Unit owner uses a Key-Fob that grants exclusive access only to his or her Unit. The elevator door opens into the interior of the Units on levels 2 to 14.
[14] Property management possesses an override key-FOB that allows access to all levels of the building.
[15] Levels 2-15 of the building each comprise a single residential unit. Each of the Units on levels 2 to 14 occupy the entire footprint of the building. Units 2-14 are identical in design. They have a floor area of approximately 1,418 sq. ft. These Units have an enclosed balcony of 117 sq. ft. and an exterior balcony of approximately 15 sq. ft. The elevator doors open into the interior of the Units on levels 2 to 14.
[16] Unit 15, which is located on Level 15, is different from all of the other Units. Unit 15 sits on the top of the building, and it does not occupy the entire footprint of the building. In the sketch attached the boundaries of Unit 15 are demarcated by the black line. Unit 15 has a floor area of 319 sq. ft. Unlike the other Units - as originally designed - the elevator does not open into the interior of Unit 15. Rather, as depicted on the original Description, the elevator opens onto an Elevator Landing, which Mr. Meanie describes as part of “the Area” in his claim for relief. On the Description, however, the Elevator Landing is not part of Unit 15. It is separated from Unit 15 by a wall. It is a disputed matter, but Mr. Meanie seeks a declaration that the Elevator Landing (part of the Area) is a part of Unit 15.
[17] A Surveyor's Certificate provided on January 21, 1971 by Ontario Land Surveyor John McSkimming certified that the apartment Units depicted substantially represented the Units in the building. According to field notes prepared by Mr. McSkimming, the Elevator Landing and the Interior Hallway are separated from Unit 15 by a wall.
[18] However, the wall that would have demarcated the boundary of Unit 15 from the Elevator Landing and the Interior Hallway was never constructed, or if it was constructed, the wall was removed many years ago.
[19] The best evidence is that notwithstanding the Surveyor’s Certification, the wall was never constructed. The surveyor’s certificate was completed before the conversion of the apartment building into a condominium, and there is Mr. Meany’s evidence and the evidence of others, all of whom say that they have never seen a wall separating Unit 15 from the Elevator Landing. Mr. Meany visited Unit 15 in his youth and does not recall a wall separating the Unit from the Elevator Landing. When Mr. Meany purchased the Unit, there was no wall separating Unit 15 from the Elevator Landing. The non-existence of a wall is also confirmed by the construction of the elevator doors which have vintage doors that would not allow unobstructed access to the Elevator Landing if there was a wall separating Unit 15 from the Elevator Landing.
[20] I find as a fact that there is now and there never has been a wall or physical barrier between the Elevator Landing and Unit 15. The result is that the elevator opens into the interior of Unit 15 much the same way as is the case for the Units on levels 2 to 14. What would be the Elevator Landing area is inside Unit 15.
[21] In the original Condominium Declaration and Description, the Elevator Landing connects to an Interior Hallway that exits onto the Roof. In the Description, the Interior Hallway is not a part of Unit 15. The Interior Hallway is not described as being an exclusive use common element.
[22] Mr. Meany claims the Interior Hallway as part of the Area; i.e., he claims the Interior Hallway as part of his Unit or as his exclusive use common element.
[23] As part of his request for relief, Mr. Meany seeks a declaration that the Elevator Landing and the Interior Hallway forms part of Unit 15. In the alternative, he seeks a declaration that Unit 15 has an exclusive easement in perpetuity over the Elevator Landing and the Interior Hallway. He seeks an order pursuant to s. 109 of the Condominium Act, 1998 amending the Declaration and Description of the Condo Corp to show the Elevator Landing and the Interior Hallway are part of Unit 15.
[24] There is a door in the existing wall of Unit 15 that opens onto the Interior Hallway, and then the Interior Hallway extends to a door that opens onto the Roof. The owner of Unit 15, unlike the other Unit Owners has direct access to the Roof because only this Unit has immediate direct access to the Interior Hallway on the 15th level.
[25] Outside of Unit 15 is the Roof, which the Defendants label the Terrace. The Roof has an area of 1,080 sq. ft. It is not labelled or specifically demarcated in the condominium Description as a Terrace. It appears in the Description as a common element of the condominium.
[26] It is a disputed matter, but Mr. Meany claims the Roof, which he labels the Balcony for Unit 15, as his exclusive use common element for Unit 15. Schedule "E" paragraph 3 of the Declaration of the Condo Corp. provides that each unit has the exclusive use of “any balcony adjoining [the] unit." Although the Roof is not demarcated as a balcony, Mr. Meany has anointed the Roof as his balcony.
[27] The westerly and southerly sides of Unit 15 are comprised of floor to ceiling windows and there is a sliding there is a sliding glass door from Unit 15 onto the Roof which, as noted above, Mr. Meany claims as his balcony.
[28] In support to his claim to the Roof as an exclusive common element, Mr. Meany relies on the circumstance that there is another balcony in the building that differs from the marked balconies appurtenant to the Units on levels 3 to 14. On the second level of the building, the depicted balcony area rests on the first level of the building that juts out from the rear of the building. It aggrieves Mr. Meany that the Condo Corp has objected to his use of his Balcony on the roof while not disturbing the use being made by the owner Unit 2 of the extended balcony for that Unit.
[29] The other Unit Owners treat the Roof as a common area that they label the Terrace. They obtain access to the Roof by two separated stairwells (called scissor stairways). In other words, the Unit Owners walk up the stairs to the Roof, which they call a Terrace. The Roof has indeed been constructed as a Terrace with railings. The Northern Stairwell exits directly onto the Roof. A Southern Stairwell exits into the Interior Hallway and then there is access to the Roof.
[30] There is a dispute between the parties about the South Stairwell. Storage lockers have been constructed in the stairwell. Over the objections of the Condo Corp., these storage lockers are being used by Mr. Meany for his exclusive use.
2. The Parties
[31] The Condo Corp. is a condominium corporation created on June 10, 1976 pursuant to the Condominium Act, R.S.O. 1970, c. 77 by the registration of a Declaration and Description.
[32] The personal Defendants are Mr. Meany’s neighbors. They are the owners of Units on levels 2-14.
[33] From amongst Mr. Meany’s neighbors, Stephen John Hankes Drielsma, Davie Lurie, and Robin Ghosh currently serve on the Condo Corp.’s Board of Directors as President, Secretary, and Treasurer, respectively.
[34] The Defendant Konrad Baerveldt is deceased. The action against Mr. Baerveldt was discontinued November 06, 2017.
[35] Mr. Meany, through his corporation, the Plaintiff, 1229965 Ontario Inc. is the current owner of a Unit 15. The ownership and use history of Unit 15 is as follows:
a. Units 14 and 15 were originally owned by Jay Borkowsky, who was the developer of the condominium. b. Mr. Borkowsky constructed storage lockers for Unit 15 in the South Stairwell. He also constructed storage lockers in the North Stairwell. c. On July 15, 1992, Mr. Borkowsky sold Units 14 and 15 to Cynthia Beth Borkowsky. d. On June 27, 1997, Ms. Borkowsky sold Unit 15 to Jacob Van Ravenzwaaij. e. On January 31, 2002, Mr. Ravenzwaaij sold Unit 15 to Mr. Meany. Mr. Meany has always used the storage lockers for level 15. f. On July 14, 2003, Mr. Meany sold Unit 15 to his corporation. g. From 2002 to date, Mr. Meany personally resided in Unit 15 only occasionally or periodically. He has other residences, and he was not at the condo on a regular basis.
3. The Relationship Between the Parties
[36] In May 2003, Mr. Meany notified the Board that he planned to undertake renovations to Unit 15. Property management on behalf on the Condo Corporation authorized this work. The renovations did not alter the physical layout of Unit 15. The renovations included flooring, paneling, cabinetry, and a ceiling design. The renovations were designed and implemented on the basis of the physical layout of Unit 15 and the schematic that was provided to Mr. Meany by the property manager. The Condo Corp. did not object to the fact that there was no wall separating Unit 15 from the Elevator Landing.
[37] On June 6, 2006, the then-property manager for the Condo Corp. faxed to Mr. Meany a schematic of Unit 15. The schematic was from the original marketing materials prepared to sell Units in the condominium. The schematic does not indicate any wall in front of the elevator on level 15.
[38] Also, in 2006, the Condo Corp. retained Andrew Marshall Designs to provide schematic drawings of the Units and common elements of the condominium. The schematics do not show any wall in front of the elevator on level 15.
[39] In 2011, Mr. Meany commenced additional renovations to Unit 15, doing so without providing any notice to the Condo Corp. The renovations included alterations to the Interior Hallway, as well as to the storage lockers located within the stairwells.
[40] The Board requested Mr. Meany to remove personal items from the storage lockers and the Interior Hallway and also to not install or attach anything to common elements. The Condo Corp. offered Mr. Money alternatives for storage including making available to him a larger basement storage unit, so that he might remove his items from the lockers in the stairwell. He refused to remove the storage lockers.
[41] In 2012, the Condo Corp.’s property manager asked Mr. Meany to remove a BBQ from the Roof and to remove the storage lockers. When Mr. Meany refused, the Condo Corp. called in the fire inspector. The inspector had no concern about the storage lockers, but the inspector was concerned that a locker door swung outward into the stairwell. Mr. Meany fixed the problem at his own expense. The property manager's proposed solution to the fire inspector's concerns to remove the lockers appeared to Mr. Meany to be an arbitrary and vindictive.
[42] Mr. Meany is willing to enter into agreement with Condo Corp. pursuant to s. 98 of the Condominium Act, 1998 pursuant to which he would: (a) maintain, repair and insure the 15th Floor lockers; (b) remove articles, or otherwise accommodate any access to the lockers as the Condo Corp. might require to carry out its statutory maintenance and repair duties, and; (c) indemnify the Condo Corp. for any damage or liability arising as a result of the storage lockers.
[43] In 2014, the Board and Mr. Meany attempted to find a solution with respect to an ongoing dispute about the use of the Roof. In August 2014, the parties signed an Access Agreement that provided Unit owners with access to the Roof up to a total of at least 30 times during the course of 12 months on a prescheduled basis. In other words, each Unit Owner was able to use the Roof at least twice per year, during schedules times when Mr. Meany was not occupying Unit 15. The Unit Owners were obliged to sign a damage waiver and to pay a refundable deposit.
[44] It is a contested matter, but the Condo Corp. says that Mr. Meany requested that the Access Agreement be renegotiated. This is denied by Mr. Meany. He says that the discussion was only with respect to the damage waiver that was to be signed by Unit Owners under the Access Agreement.
[45] In any event, a revised draft Access agreement was distributed to the Defendants for their review in April 2015. This agreement allowed Unit Owners to book the Roof twice yearly on a prescheduled basis, with no more than six individuals being permitted access. Visitors were also to sign a Use & Damage Agreement" in advance. The Unit Owners declined to adopt the Revised Access Agreement, and a notice of cancellation of the Access Agreement was sent to Mr. Meany in March 2016.
[46] More specifically, on March 29, 2016, the Condo Corp. without prior notice sent a letter to Mr. Meany. The Condo Corp.’s position was that the Access Agreement was terminated and that the common elements on the 15th floor would be returned to their proper configuration and use.
[47] In what was a provocation, a short time later, Mr. Lurie, sent an email to all residents advising that he would be taking a group around the roof at 9:30 a.m. on a Sunday morning.
[48] On December 14, 2016, Mr. Meany commenced his action.
[49] On June 23, 2017, the Defendants delivered their Statement of Defence.
C. Discussion and Analysis
1. Is the Case Suitable for a Partial Summary Judgment?
[50] The crux of this partial summary judgment motion is whether four areas in the condominium building are part of Unit 15 and/or exclusive common elements for the benefit the owner of Unit 15. The four areas are: (a) the Elevator Landing; (b) the Interior Hallway; (c) the Roof, which Mr. Meany describes as the balcony for Unit 15 and which the Defendants describe as the Terrace; and (d) the South Stairwell, where the storage lockers used by Unit 15 are located.
[51] However, on this summary judgment motion, before the designation of these four areas can be considered, there is the preliminary matter of whether the case is suitable for a summary judgment, particularly a partial summary judgment. Mr. Meany argues that the case should not be decided summarily and that the case is particularly unsuitable for a partial summary judgment.
[52] 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.” 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.
[53] In Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, 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 introduced 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.
[54] If, however, there appears to be 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. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case. Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.
[55] Although in Hryniak v. Mauldin, the Supreme Court of Canada commanded a very robust summary judgment procedure, it did not foreclose lower courts from simply dismissing the summary judgment motion and ordering that the action be tried in the normal course. Gubert v. 1536320 Ontario Limited, 2015 ONSC 3294.
[56] Where there are genuine issues for trial and the lower court concludes that employing the enhanced forensic tools of the summary judgment procedure would not lead to a fair and just determination of the merits, the court should not decide the matter summarily. Mitusev v. General Motors Corp., 2014 ONSC 2342 at para. 79; Gon (Litigation Guardian of) v. Bianco, 2014 ONSC 65 at paras. 41-47; Yusuf v. Cooley, 2014 ONSC 6501; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para. 44.
[57] In Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 and Trotter v. Trotter, 2014 ONCA 841, the Court of Appeal stated that when conflicting evidence is presented on factual matters, a motions judge is required to articulate the specific findings that support a conclusion that a trial is not required.
[58] In Baywood Homes Partnership v. Haditaghi and in other cases, courts have held that although a court on a summary judgment motion is empowered to make credibility findings, the court should be cautious in exercising that power to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all. Abuajina v. Haval, 2015 ONSC 7938 at paras. 25-34; Gino L Arnone Professional Corp. v. Hacio, 2015 ONSC 5266; Trotter v. Trotter, 2014 ONCA 841.
[59] In 1615540 Ontario Inc. (c.o.b. Healing Hands Massage Therapy Clinic) v. Simon, 2016 ONCA 966, the Court of Appeal stated that where the evidence in the record establishes a clear conflict, it is incumbent on a summary judgment motions judge to consider expressly whether the powers provided under the summary judgment rules are to be deployed in resolving the conflict. Judges deciding summary judgment motions must provide meaningful reasons capable of appellate review explaining their decision and providing some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion. Read Jones Christoffersen Ltd. v. Neilas Inc., 2016 ONCA 321.
[60] Thus, to grant a summary judgment, the motions judge must do all of: (1) determine whether there is a genuine issue requiring a trial; (2) determine whether he or she can decide the genuine issues using the fact-finding resources of the summary judgment rule; (3) employ the fact-finding resources to decide the genuine issues; (4) identify and explain the specific findings that support the conclusion that a trial is not required; and, finally, (5) provide meaningful reasons capable of appellate review explaining the decision and providing some insight into how the legal conclusion was reached and what facts were relied upon in reaching that conclusion. Which is all to say that to grant a summary judgment, a judge must not only decide the matter summarily but also justify and explain to the losing party in some detail why it was appropriate to decide the factual and credibility issues summarily.
[61] A cross-motion for summary judgment is not required when the court can decide the issue that is the subject matter of the motion for summary judgment. King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 (Ont. C.A.), aff’g 2013 ONSC 6113. On a summary judgment motion, a successful respondent cannot choose to have a trial; where a motion for a summary judgment leads to the conclusion there is no genuine issue for trial, the adverse party should be granted judgment Kassburg v. Sun Life Assurance Co. of Canada, 2014 ONCA 922.
[62] In my opinion, notwithstanding Mr. Meany’s arguments to the contrary, the immediate case is very suitable for a partial summary judgment. Once I determine the issue of whether a wall ever separated the Elevator Landing from Unit 15, which I find as a fact not to be the case, there are no disputed facts that need to be resolved to determine the nature of Mr. Meany’s property rights with respect to the Elevator Landing, the Interior Hallway, the Roof, and the Southern Stairwell. There is ample documentary and other evidence to decide the largely legal issues associated with ownership rights under the Condominium Act, 1998. In all events, I can decide any genuine issues using the fact-finding resources of the summary judgment rule.
[63] Although, the litigation will proceed to address Mr. Meany’s oppression claim against the Condo Corp., it will facilitate the resolution of that claim to make a binding determination on this summary judgment the designation of the four areas that have caused strife between Mr. Meany and the Condo Corp. A trial is not required to resolve the designation of the four areas and a trial would not place the trial judge in a better place than I am in to decide the designation. Both parties have presented all the evidence that they have and more than enough evidence to decide this matter.
[64] As will be explained in more detail below, as it happens, on this summary judgment motion, Mr. Meany’s ownership claim to the Elevator Landing will be validated - on a go forward basis. The status of the Interior Hallway, the Roof, and the Southern Stairwell can be determined fairly and justly and this provides a timely, affordable, and proportionate procedure. This procedure will also all for a fair and just procedure to resolve the personal claims advanced by Mr. Meany against his neighbors who admitted their use of the Roof area of the building. There is no reason to embroil these Defendants in a dispute is between Mr. Meaney and the Condominium Corp. Resolving the oppression remedy will not lead to inconsistent results given the binding determination about Mr. Meany’s ownership rights with respect to the Elevator Landing, the Interior Hallway, the Roof, and the Southern Stairwell. The determination of these matters will substantially shorten and make more efficient the trial of the oppression claim.
[65] In short, the case at bar is an suitable and appropriate case for a partial summary judgment.
2. Should the Condominium Description be Amended and if so to What Extent?
[66] As noted above the crux of this partial summary judgment motion is the legal characterization of four areas in the condominium building on the 15th level; namely: (a) the Elevator Landing; (b) the Interior Hallway; (c) the Roof, which Mr. Meany describes as the balcony for Unit 15 and which the Defendants describe as the Terrace; and the Southern Stairwell.
[67] For the reasons that follow, I conclude that on a go-forward basis, the Elevator Landing is a part of Unit 15 but the Interior Hallway, the Roof, and the Southern Stairwell are common elements.
[68] A review of the surveyor's plan and other plans reveals that the boundaries of Unit 15 do not include the Elevator Landing, the Interior Hallway, the South Stairwell, and the Roof, all of which are depicted as outside the boundaries of Unit 15. The plans show no area exterior to Unit 15 to which the owner of Unit 15 would have exclusive rights. There is no indication of a balcony for Unit 15. Pursuant to s. 1(1) of the Condominium Act, 1998, all property except the units are deemed to form part of the common elements. I conclude that the Elevator Landing, the Interior Hallway, the Roof, and the Southern (and Northern) Stairwell are common elements. I find as a fact that there are not exclusive use common elements but rather are parts of the building that may be used by all Unit Owners.
[69] However, I find as a fact there that never was a wall between the Elevator Landing and Unit 15. In the circumstances of the immediate case, I am satisfied that pursuant to s. 109 of the Condominium Act, 1998, that an amendment to the declaration and description is necessary or desirable to correct the inconsistency that appears in the declaration or description. I am also satisfied that an amendment is necessary or desirable to carry out the purposes of the declaration or description.
[70] As one of his numerous claims for relief, Mr. Meany relies on s. 109 of the Condominium Act, 1998, which states:
Court order
- (1) The corporation or an owner may make an application to the Superior Court of Justice for an order to amend the declaration or description.
Grounds for order
(3) The court may make an order to amend the declaration or description if satisfied that the amendment is necessary or desirable to correct an error or inconsistency that appears in the declaration or description or that arises out of the carrying-out of the intent and purpose of the declaration or description.
Registration
(4) An amendment under this section is ineffective until a certified copy of the order has been registered.
[71] I conclude that pursuant to s. 109 of the Condominium Act, 1998, Metropolitan Toronto Condominium Corporation No. 590 v. Registered Owners, 2019 ONSC 4484; Caras & Callini Group Ltd. v. Peel Standard Condominium Corporation No. 837, 2011 ONSC 7565; Carleton Condominium Corporation No. 26 v. Unit Owners, [2009] O.J. No. 1831 (S.C.J), aff’d 2010 ONCA 80, the Condominium Declaration and Description should be amended as required to designate the Elevator Landing as a part of Unit 15. Thus, on a go-forward basis, the Elevator Landing will no longer be a common element.
[72] Turning to the Interior Hallway, the Roof and the Southern Stairwell, they are depicted as a common element space in the Description and the relevant drawings.
[73] The Roof is not a balcony for Unit 15. How the Unit Owner of Unit 2 uses his or her depicted balcony, which has access to an area outside of the depicted drawings, is not informative with the Roof on level 15 of the building, where no balcony is depicted at all.
[74] The Roof is demarcated as a common element in the Description. There is no indication of there being any attached balcony. As it happens, the expert evidence in the immediate case from by Alison Orr, P.Eng., who is an expert in Building Code matters, deposed that a roof cannot be a balcony. Under the Building Code, balconies are defined as projecting structures that are exterior to the face of the building. A roof is obviously not exterior to the face of a building.
[75] Ms. Orr’s evidence was that the Roof in the immediate case could be a terrace under the Building Code. However, while interesting, the actual issue is not whether the Roof is a balcony or a terrace; rather, the issue is whether the Roof is a common element, which it is depicted to be. And if it is a common element, the issue is whether the Roof is an exclusive common element. My conclusion is that the Roof is a common element and not and exclusive common element.
[76] Continuing with the Roof and turning also to the Interior Hallway, the various drawings for the building before and after its conversion to a condominium reveal that Unit 15 measures roughly 300 sq. ft. If the Interior Hallway were included as a part of Unit 15, which the drawings do not support, the size of the unit would approach 400 sq. feet. If the Roof were included as an exclusive use common element, then the footprint of Unit 15 would be like that of the other Units and be congruent with the footprint of the whole building, which is not consistent with the Condo Corp’s Declaration and Description, nor is it consistent with the plans for the building when it was an apartment building. Unit 15 has always been different from the other Units in the building and the Roof, Interior Hallway, and Southern Stairwell are not part of Unit 15.
[77] The storage lockers in the South Stairwell have been located on a common element. The stairwells are fire exits. It is absurd to think that the Southern Stairwell is an exclusive use common element.
[78] The lockers may have been used for the benefit of Unit 15, but it would appear that they were originally constructed for the use of the Condo Corporation. That the storage lockers in the south stairwell have been used for benefit of Unit 15 is a historical anachronism probably arising from the fact that the developer of the condominium owned and used Units 14 and 15. The storage lockers in the north and south stairwells constitute a common element storage area for the Condo Corp. The lockers are needed for roof and equipment maintenance. The storage lockers are not exclusive use common elements for the benefit of Unit 15.
[79] Unlike Floors 2-14, proper management of the building necessitates that the Roof, Interior Hallway, and South Stairwell are common elements. To maintain and repair the Roof, the heating and cooling equipment located there, and to access to exterior parts of the building, access to the Roof is required. To clean exterior windows and to make HVAC repairs also requires access to the Roof as a common element. The Condo Corp. could not maintain the building if the Interior Hallway, Stairwells, and the Roof are not common elements.
[80] The result of the above determinations and the determinations that I shall make below with respect to the personal claims against the Unit Owners is that:
a. to Mr. Meany, I grant an order pursuant to s. 109 of the Condominium Act, 1998 amending the Declaration and Description of the Condo Corp. to show that the Elevator Landing is a part of Unit 15; b. to the Defendants, I grant a Declaration that the Interior Hallway, the Roof, the South Stairwell are common elements; c. to the Defendants, I grant an Order dismissing the action as against the Unit Owner Defendants; and, d. to the Defendants, I grant an Order dismissing Mr. Meany’s claims in subparagraphs b, c, f, g, h, i, k, 1, and m of paragraph 1 of the Amended Statement of Claim.
3. The Trespass, Nuisance and other Tort Claims
[81] Trespass, which is actionable without proof of damage, is an unjustified intrusion by one person upon land in the possession of another. Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154; Grace v. Fort Erie (City of), [2003] O.J. No. 3475 (S.C.J.); Hudson's Bay Company v. White [1997] O.J. No. 307 (Gen. Div.).
[82] Mr. Meany alleges that the unitholder Defendants trespassed into the Elevator Landing Area, which is inside the constructed boundaries of Unit 15. He also alleges that the Defendants trespassed in the Interior Hallway and the Roof, which he claims as his balcony and as an exclusive use common element.
[83] Putting aside for the moment, the trespass claims against the Defendants who are or were members of the Board of the Condo Corp. at the time of the alleged trespasses, all of the trespass claims fail.
[84] Since the Interior Hallway, the Roof, and the Southern Stairwell were, are, a will continue to be common elements and since up until the declaration I made above pursuant to s. 109 of the Condominium Act, 1998, the Elevator Landing was a common element, there were no trespasses by fifteen individual Defendants; visualize:
a. Mary Boyd was at the Roof but not at Unit 15. b. Barbara Carver has never been on Level 15. c. Marilyn Wendy Hankes Drielsma has never been on Level 15. d. Paula Ghosh, never been on Level 15, save one occasion in which she exited the Roof by way of the elevator. e. Maria Jana Jackson was at the Roof but not at Unit 15. f. Theresa Jackson was at Unit 15 at the invitation Mr. Meany. g. Lynne Sandra Lurie was at the Roof but not at Unit 15. h. Harold Margles was at the Roof but not at Unit 15. i. Ruth Margles was at the Roof but not at Unit 15. j. Gregory Bernard O'Donohue was at the Roof but not at Unit 15. k. Prathiba Shammi was at the Roof but not at Unit 15. l. Stephen Lloyd Voisin was at the Roof but not at Unit 15. m. Warren David Wagman was at Unit 15 at the invitation of Mr. Meany.
[85] Turning then to Mr. Meany’s trespass claims against the Unit Owners who were members of the Condo Corp.’s Board. In this regard, (a) Helena Baerveldt, (b) Graham Carver, (c) Stephen John Hankes Drielsma, (d) Robin Ghosh, (e) Simon Louis Jackson, (f) William Christopher Jackson, (g) David Alan Lurie; and (h) Leonard Arthur Nicholson admit entering Unit 15 in their capacity as Members of the Condominium Board. However, Mr. Meany claims that the entries were unlawful and not in accordance with the notice and other requirements of the Condominium Act, 1998.
[86] There are genuine issues here that would call for a trial, but for the powers to make findings of fact and to decide contested issues on a summary judgment motion when it is in the interest of justice to do so. In the immediate case, deciding the trespass issue can be fairly and justly done without the necessity of a trial.
[87] Based on the evidence, Mr. Meany largely makes uncorroborated allegations that the Board Members’ entries into Unit 15 were unlawful. However, the evidence on the summary judgment motion does not substantiate Mr. Meany’s trespass allegations. It was the policy of the Board of the Condo Corp. to provide notice and copies of many, if not most, of the notices have been produced in this litigation.
[88] The evidence of the Board Member Defendants that accessed Level 15 is that they did so in accordance with the requirements set forth by s. 19 of the Condominium Act, 1998. There is no reason to think that the Board Members were trespassers when the accessed Level 15 and I find as a fact that they were not trespassers.
[89] Since the uses being made by the Unit Owner Defendants who were members of the Condo Corp.’s Board were lawful and reasonable, there is no basis whatsoever for a trespass or a nuisance claim. There is also no basis for Mr. Meany’s claims for interference with economic relations or for interference with his quiet enjoyment of Unit 15 or for the tort of intrusion on seclusion. The area outside Mr. Meany’s Unit was a common area for the use of others. Mr. Meany knew or ought to have known that he did not have exclusive use of the Interior Hallway leading to the Roof or of the Southern Stairwell that connected to the Interior Hallway that provided access to the Roof. He knew or ought to have known that he did not have exclusive use of the Roof. I find as a fact that he did know that the Roof was not his to own or control.
[90] Moreover, the evidence is that Defendants’ use of the Roof was infrequent and inoffensive. I have already found as a fact that the visits by Board Members were proper.
[91] For the above reasons, I dismiss the claims against the Defendant Unit Owners.
D. Conclusion
[92] For the above reasons, I make the Orders set out above in these Reasons for Decision.
[93] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Defendants’ submissions within twenty days of the release of these Reasons for Decision followed by the Plaintiff’s submissions within a further twenty parties.
[94] I alert the parties that given the divided success and the continuation of the Plaintiffs’ oppression remedy claims, I am much inclined to make no order as to costs or to order costs in the cause.
[95] In the circumstances of the Covid-19 emergency, these Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.
[96] The parties may submit formal orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release.
Perell, J.
Released: March 18, 2020
[^1]: 1229965 Ontario Inc. carries on business as Colmvest Holdings Corporation. Mr. Meany is the sole principal of 1229965 Ontario Inc. and of Colmvest Holdings Corporation, which were amalgamated into Colmvest Holdings Corporation, a registered Alberta corporation on April 1, 2008.