Court File and Parties

COURT FILE NO.: CV-20-00653093

DATE: 20210816

ONTARIO SUPERIOR COURT OF JUSTICE

RE: TSCC 1630, Applicant

-and-

Malle Vallik, Respondent

BEFORE: F.L. Myers J.

COUNSEL: Jonathan Wright and Megan Molloy, for the applicant

READ: August 16, 2021

Endorsement

[1] The applicant has submitted a request to schedule a short application for an oppression remedy under the Condominium Act, 1998, SO 1998, c 19.

[2] Ms. Vallik has not responded to the application as yet.

[3] The request for scheduling came before me in writing for triage in accordance with section C.1.5 of the Notice to Profession – Toronto; Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic.

[4] According to the applicant’s Motion Request Form, the oppression remedy is sought on the following basis:

The Applicant has an obligation to maintain and repair the common elements. The unit owner is interfering with this obligation by refusing to move a vehicle.

[5] Sections 132 and 134 of the statute provide that all disputes between owners and a condominium corporation concerning issues under the condominium’s declaration, by-laws, or rules must go to mediation and then arbitration before going to court.

[6] It is the law and public policy of the Province of Ontario that regular disputes about compliance issues between condominium owners and the condominium corporation be resolved out of court.

[7] The Supreme Court of Canada and the Court of Appeal for Ontario have confirmed recently that this court has very limited jurisdiction to hear disputes involving condominium compliance issues. The court must stay its proceedings in favour of the statutory alternative dispute resolution processes unless s. 7 (2) of the Arbitration Act, 1991, SO 1991, c 17 provides otherwise. See: TELUS Communications Inc. v. Wellman, 2019 SCC 19, Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612, and Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360

[8] BY contrast, s. 135 (2) of the Condominium Act, 1998, allows a person to bring a court proceeding if “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”. Subsection 135 (2) gives the court very broad authority to rectify oppressive acts taken or threatened against an applicant.

[9] Many people bring court proceedings under the oppression remedy to try to get around the requirement to mediate and arbitrate. While alternative dispute resolution processes are intended to be quicker and cheaper than court proceedings, this does not always turn out to be true. This is especially the case when the person on the other side refuses to participate. In that case, the applicant has to go through the motions and incur the delay and cost of alternative dispute resolution and ends up in court anyway to enforce the arbitral order obtained in default, if any.

[10] But oppression remedies and compliance orders are not the same thing whether under the corporate statutes or the Condominium Act, 1998. A compliance order may be obtained for almost any breach of technical rule or law. Oppression is a far more serious and severe form of wrongdoing than a simple breach of a rule. Finding oppression too readily diminishes the distinction between compliance and oppression proceedings and risks violating the strong public policy favouring alternative dispute resolution in condominium cases.

[11] In the two decisions referred to above, the Court of Appeal confirmed that merely calling a claim “oppression” does not necessarily take it out of the hands of an arbitrator or provide assured entitlement to litigate in court. Even if a claim is so strong that it might be capable of summary judgment in court and thereby amount to an exception to the mandatory stay of court proceedings set out in s. 7 (2)5 of the Arbitration Act, 1991, the exception is discretionary. In my view, even if a claim is strong enough to obtain summary judgment, if it can be dealt with by an arborator, there may be good reasons, as articulated by the appellate decisions above, to require it to be proceed by alternative dispute resolution first.

[12] I am not prepared to schedule an oppression remedy hearing because a unit owner will not move her car to let the condominium corporation maintain the premises. It may be that the car is blocking a fire route and the issue is very serious. Or it may be more typical of condominium community disputes in which communication problems often harden peoples’ resolves on both sides and risk creating mountains from molehills.

[13] I am also cognizant of the costs provision of s. 134 (5) of the Condominium Act, 1998 and hesitate to incentivize condominium corporations to come to court to obtain full indemnity for all costs incurred by the condominium corporation. While the section prevents externalization of costs by a recalcitrant unit owner, it also has an unfortunate consequence of incenting condominium corporations to bring big, over-the-top expensive proceedings in the expectation of obtaining a lien on the owner’s unit for 100% of all costs incurred. This tends to let some condominium corporations approach their unit owners with a sledge hammer when communal living might be best enhanced by a much gentler and more conciliatory approach.

[14] The respondent has not responded to the proceeding as yet. She should get involved or else move her car. If Ms. Vallik does not participate, she is taking a big risk that she may find herself responsible to pay a legal bill to the condominium corporation’s lawyers of thousands of dollars or even tens of thousands..

[15] I do not have enough information to say whether the claim is properly before the court or ought to be brought by alternative dispute resolution first. I convene a case conference so a judge can consider this issue with the parties and, hopefully, help them find a way to meet both sides’ needs without further expensive proceedings. If the matter is one that should be heard by the court, the judge at the case conference can assist the parties with a timetable and schedule for a hearing.

[16] As pandemic processes begin to be unwound, the court is not scheduling case conferences unilaterally when convened by triage. The applicant is therefore directed to request a case conference (a chambers appointment) on notice to the respondent under section C.1.4 of the Notice to the Profession referred to above.

F.L. Myers J.

Date: August 16, 2021