Court File and Parties

COURT FILE NO.: CV-16-566058 DATE: 2020/05/25 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 - Costs

[1] William Meany, through his corporation, the Plaintiff, 1229965 Ontario Inc. 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. managed a 15-storey residential condominium building at 423 Avenue Rd. in Toronto. There was a dispute about the boundaries of Mr. Meany’s Unit, which is on the roof or terrace of the Condo Corp.’s building. Mr. Meany sued the Condo Corp. and all of the Unit Owners in the building, who have Units below his rooftop Unit.

[3] Thus, Mr. Meany sued his neighbours, 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 Lurrie; (8) Ruth Margles and Harold Margles; (9) Leonard Arthur Nicholson; (10) Gregory Bernard O’Donohue; (11) Prathiba Shammi; (12) Stephen Lloyd Voisin; and (13) Warren David Wagman;

[4] Mr. Meany sued the Condo Corp. and his neighbours for: (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; damages for loss of rent and loss of quiet enjoyment in the amount of $250,000; (c) punitive and exemplary damages in the amount of $150,000; (d) a declaration that the Condo Corp. has breached sections 17, 19, 117, and 119 of the Condominium Act, 1998; (e) 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; (f) 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; (g) a declaration that the area measuring roughly four feet by eleven feet 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; (h) in the alternative, a declaration that the owner of Unit 15 has an exclusive easement in perpetuity over the Area; (i) 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; (j) in the alternative to (h) to (i) 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; (k) a declaration that the owner of Unit 15 has an exclusive easement in perpetuity over the two closets currently being used for storage; (l) 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 (m) pre-judgment and post-judgment interest in accordance with the Courts of Justice Act.

[5] The Defendants brought a motion for a partial summary judgment. They sought: (a) a declaration that: the Elevator Landing, the Interior Hallway, the South Stairwell, and the Terrace are common elements; (b) an order dismissing the action as against the Unit Owner Defendants; and (c) an order dismissing Mr. Meany’s claims for relief found in subparagraphs b, c, f, g, h, i, j, k, l, and m of paragraph 1 of the Amended Statement of Claim.

[6] I granted partial summary judgments to both Mr. Meany and to the Defendants. 1229965 Ontario Inc. v. York Condominium Corp. No. 263, 2020 ONSC 1639. To Mr. Meany, I granted 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.

[7] To the Defendants, I granted: (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, l, and m of paragraph 1 of the Amended Statement of Claim.

[8] I ordered that if the parties could not agree about the matter of costs, they may make submissions in writing. I alerted the parties that given the divided success and the continuation of the Plaintiff’s oppression remedy claims, I was much inclined to make no order as to costs or to order costs in the cause.

[9] The Defendants seek costs on a partial indemnity basis in the amount of $102,307.83, all inclusive. They submit that Mr. Meany deliberately named every individual unit owner and advanced numerous unfounded tort claims including trespass, nuisance, interference with economic relations, and interference with quiet enjoyment. They submit that these claims unnecessarily increased the complexity and costs of the action.

[10] As some indication of the increased costs, the Defendants advise that preparation and attendance costs of the cross-examinations of the 21 Unit Owner Defendants comprise nearly half of the total costs incurred by the Defendants.

[11] The motion for summary judgment was adjourned twice and delayed because of Mr. Meany’s conduct. The first adjournment was necessary because he failed to produce any responding motion materials within the required time. The second adjournment was necessary as a result of a sudden injury suffered by him shortly before his court-ordered cross-examination date. In each case, the adjournments resulted in additional costs incurred by the Defendants, who were prepared to proceed as scheduled.

[12] The Defendants submit that costs in the cause would be unfair in the circumstances because it would deprive the trial judge of hearing submissions respecting the 21 Unit Owner Defendants who were added to the action which caused them torment, inconvenience, and cost. Additionally, it would not reflect that the entirety of the claims against them were dismissed as well as all the tort claims against York Condominium Corporation No. 263 for everything from trespass to interference with economic relations.

[13] Mr. Meany submits that there ought to be no order for costs or, in the alternative, that costs be ordered in the cause.

[14] Mr. Meany argues that it was necessary and required by s. 109 of the Condominium Act, 1998, to name all of the owners as defendants to the action and that their evidence was important to the determination of the major issues, not as suggested by the defendants, only relevant to the issue of trespass. He submits that the condominium corporation and all unit owners have derived a benefit from the adjudication of these issues because now there is clarity for all parties, which clarity was notably lacking historically. Accordingly, and given the divided success on the motion, Mr. Meany submits that there ought to be an order that the parties bear their own costs of the motion.

[15] In the alternative, Mr. Meany submits that costs should be in the cause. I, however, need not describe these alternative submissions, because I am persuaded that my initial inclination that there be no order as to costs was correct.

[16] I am persuaded by the Defendants that costs in the cause would not be appropriate, however, I am persuaded by Mr. Meany that the appropriate order is that there be no order as to costs. The Defendants’ submissions do not persuade me to the contrary including their submissions about the adjournments.

[17] It was necessary to join all the Defendants. And, even if the personal Defendants had not been sued personally for trespass etc., given the history of the relationship between the parties, it is doubtful that the Defendants would have remained passive defendants not opposing the relief sought by Mr. Meany under the Condominium Act, 1998.

[18] Mr. Meany was successful on a major issue that was important to him and the Defendants vigorously fought him on the issue. Even if they had been passive defendants on this issue, it is likely that some of them would have had volunteered or would have been be summonsed to be witness. The Defendants have the solace that the costs of the defence will undoubtedly be shared among the group. My Meany has no similar solace.

[19] I, therefore, order that there be no order as to costs.

[20] 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.

[21] 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: May 25, 2020