OSHAWA COURT FILE NO.: CV-20-1885
DATE: 20210330 CORRECTED DATE: 20210401
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jenny Tran, Plaintiff
AND:
Durham Condominium Corporation No. 86, Newton Trelawney Property Management, Yellow Pine Developments Limited, and Frank Valente, Defendants
BEFORE: The Honourable Madam Justice J. Speyer
COUNSEL: Unrepresented, for the Plaintiff frcall89@gmail.com Kary-Anne Layng, for the Defendants klayng@laxtonglass.com Inderpreet Suri, for Durham Condominium Corporation No. 86 inderpreet.suri@shibleyrighton.com
HEARD: March 30, 2021
ENDORSEMENT
[1] This matter was before me today for the hearing of several motions. All the motions arise in the context of Ms. Tran’s difficult relationship with Durham Condominium Corp. No. 86 (“No. 86”) and Newton Trelawny Property Management (“Newton”), the property management company retained by No. 86. In April 2020 Ms. Tran’s pre-authorized debit payment for her common element expense was rejected by her bank. During the following months, the amount claimed by No. 86 to be owing by Ms. Tran escalated rapidly, No. 86 registered a lien on her condominium, and issued a Notice of Sale. Concurrently, Ms. Tran issued a statement of claim against No. 86, Newton, the former property management company and a member of the condominium’s board of directors, claiming various forms of relief, including $10 million in damages. That claim includes allegations that the condominium has failed to maintain the property, by, inter alia, refusing to fix a leaking roof.
[2] Ms. Tran filed a motion, dated February 22, 2021, in relation to roof leaks and parking lot issues. In response, the defendants brought a cross-motion seeking varying forms of relief.
[3] Ms. Tran’s motion was originally scheduled to be heard on March 11, 2021. It did not proceed then because Ms. Layng was served only a few days before the hearing date and did not have time to draft responding materials. The defendants requested an adjournment, to which Ms. Tran consented. The motion was adjourned to be heard today.
[4] Today, Ms. Tran sought an adjournment of the hearing of the February 22, 2021 motion because she has not had enough time to prepare materials to respond to the defendants’ cross-motion as she has not received their materials in a form accessible to her.
[5] The defendants emailed their responding materials to Ms. Tran on March 22, 2021, but the email was not delivered due to a technical problem. A hard copy of the defendant’s materials was mailed by regular mail to Ms. Tran’s post office box the same date, but it has not yet been received by her. The responding materials were emailed again to Ms. Tran. On March 25, 2021, Ms. Tran advised Ms. Layng that she could not read the attachments.
[6] I have read the responding materials and note that they contain a cross-motion seeking various forms of relief. Ms. Tran needs to have enough time to respond to the cross-motion.
[7] Therefore, Ms. Tran’s request for an adjournment is granted.
[8] In order to ensure that this matter proceeds without further interruption, I direct as follows:
The defendants are to deliver a hard copy of their materials by courier to the attention of Ms. Tran at 20 Oxhorn Road, Toronto M1C 3L5 on Thursday April 1, 2021. This method of serving Ms. Tran was discussed with her and with counsel for the defendants. Ms. Tran said that she would leave instructions with an individual who would be at that address on that date to accept the materials addressed to Ms. Tran.
Ms. Tran is to serve and file her response to the cross-motion on or before April 21, 2021.
Ms. Tran’s motion regarding the roof and parking issues and cross-motion are adjourned to be heard by me on April 26, 2021 by ZOOM at 9:30 a.m. Two hours are allocated for the hearing of the motion and cross-motion.
No further motions are to be filed by either party in the Superior Court of Justice prior to the hearing of this motion on April 26, 2021.
[9] I also note that I have advised Ms. Layng that I will not hear her cross-motion seeking production of Ms. Tran’s ODSP records, as that relief will have to be sought by way of a third-party records application pursuant to Rule 30.10.
[10] Ms. Tran also brought a motion in December 2020 for a Certificate of Pending Litigation. That motion was heard by O’Connell J., who adjourned it for hearing to today’s date. The adjournment was needed to give the defendants an opportunity to prepare responding materials. No. 86 filed responding materials, addressing Ms. Tran’s motion for a CPL and also filed a notice of motion seeking declarations that its Certificate of Lien and Notice of Sale are valid.
[11] Ms. Tran’s motion for a CPL and the defendants’ motion for declarations that the Certificate of Lien and Notice of Sale are valid were heard today. I reserved my decisions in relation those motions, and written reasons for judgment will be released at a later date.
[12] Finally, I also dealt today with a motion by Ms. Tran, brought pursuant to Rule 37.14, to set aside my order made on March 22, 2021, wherein I dismissed her motion, which I heard in writing, for the appointment of amicus. I dealt with the Rule 37.14 motion in a summary fashion and dismissed it pursuant to Rule 2.1.02 because it was an abuse of the process of the court. Rule 37.14 permits a motion to set aside or vary an order made by a judge to be brought in one of two circumstances: 1) where a party of other person is affected by an order obtained on motion without notice; or 2) where a party or other person fails to appear on a motion through accident, mistake or insufficient notice. Neither circumstance applies in this case. The motion for the appointment of amicus was brought by Ms. Tran and notice was provided to the other parties who elected to make no submissions. Ms. Tran did not fail to appear through accident, mistake or insufficient notice. I ordered that her motion be dealt with in writing, on the basis of her lengthy record and thorough written submissions. Ms. Tran seeks to employ Rule 37.14 to re-argue her motion to obtain a different result. The rule does not provide a mechanism by which to re-argue a matter that has been decided.
Justice J. Speyer
Date: March 30, 2021
C O R R I G E N D A
Paragraph 8, 2. of the original endorsement reads:
Ms. Tran is to serve and file her response to the cross-motion on or before April 19, 2021.
This has been corrected to read:
Ms. Tran is to serve and file her response to the cross-motion on or before April 21, 2021.