Court File and Parties

Court File No.: CV-16-00563009-0000 Date: 2021-10-22 Ontario Superior Court of Justice

Between:

York Condominium Corporation No. 188 Applicant

– and –

Mubarik Chaudhry et al Respondents

Counsel:

Carol A. Dirks and Rachel Fielding, for the Applicant

David H. Nuri and Sarah McMahon, for the Respondent, Amtul Aziz Chaudhry Mubarik Chaudhry, self-represented Ghulam Nabi Chaudhry, self-represented

Heard: July 15, 2021

Before: Vella J.

Reasons for Decision

[1] This motion, brought by York Condominium Corporation No. 188 (“YCC 188”), was originally brought against all of the respondents, with the exception of Shabana Chaudhry, for an order of contempt of court, in addition to the various declaratory relief under s. 134 of the Condominium Act, 1998, S.O. 1998 c.19, as amended (the “Act”). YCC 188 also seeks costs of the steps taken by YCC 188 leading up to this motion, as well as the costs of the motion itself, as set out in the Notice of Application.

[2] On or about June 30, 2021, Mubarik Chaudhry (“Mubarik”) vacated the subject condominium unit located at Unit 701, 2835 Islington Avenue, in the City of Toronto (“Unit 701”). As a result, YCC 188 has withdrawn its request for a finding of contempt against the respondents, Ghulam Nabi Chaudhry and Amtul Aziz Chaudhry. They are Mubarik’s parents (the “Chaudhry Parents”) and the owners of Unit 701. However, YCC 188 continues to seek the balance of the relief set out in its Notice of Application as against Mubarik and the Chaudhry Parents.

[3] Mubarik requested an adjournment with respect to the motion for contempt so that he could prepare responding materials. The request was opposed. YCC 188 submitted that this was a delay tactic. However, as this is a serious matter, it is important that Mubarik be given the opportunity to put his best foot forward and prepare his defence. It was also a first-time request for an adjournment of this motion.

[4] I adjourned the motion for contempt against Mubarik to October 12, 2021 to be held as a show cause hearing. That show cause hearing was further adjourned to November 12, 2021 and will be before me.

[5] As ordered by Vermette J., a certified Urdu translator attended at the hearing of this matter to provide translation services to the Chaudhry Parents.

[6] Substantial affidavit evidence was filed by YCC 188 in support of its Application.

[7] Amtul Aziz Chaudhry (“Amtul”) filed a responding record consisting of an affidavit sworn by one of her other sons, Mohammad Ahmed (“Ahmed”).

[8] No other evidence was filed in response to this motion, nor was any factum filed by or on behalf of any respondent. Furthermore, no cross examinations of any of the affidavits were conducted.

[9] For the reasons that follow, the motion is granted.

A. JURIDICAL HISTORY

[10] This application was commenced in 2016 alleging misconduct by the respondents going back to 2015 and identifying Mubarik as the main protagonist.

[11] Since that time there have been several court appearances in relation to the conduct of Mubarik and the Chaudhry Parents.

[12] Of particular note, by Judgment dated January 12, 2017, Glustein J. issued a declaration that the respondents had violated s. 134 of the Act by engaging in a course of conduct that interferes with the statutory duties of YCC 188, and ordered costs against them as a collectible common expense attached to Unit 701 (“Glustein Order”).

[13] Mubarik and his father, Ghulam Chaudhry, appeared in person representing themselves before Justice Glustein. Ms. Dirks appeared for YCC 188.

[14] Glustein J. characterized the proceeding as arising from a “lengthy and bitter dispute in which Mubarik has sent repeated text messages, emails, faxes and voicemail messages to YCC 188’s property manager, directors, and YCC’188’s lawyers”. This pattern of conduct commenced in or around June 2015 and persisted throughout 2016.

[15] In the course of His Honour’s reasons released on January 13, 2017 (“Glustein Reasons”), Glustein J. found that Mubarik engaged in a long list of inappropriate communications and conduct contrary to section 117 of the Act “since it creates serious concerns about the physical and emotional safety, security, comfort and enjoyment of the other unit owners and the property manager.” Glustein J. further found “Mubarik’s conduct to justify a compliance order under section 134 of the Act, as Mubarik has not complied with the Act or the declaration, by-laws and rules of YCC 188 which include stopping his conduct.”

[16] Glustein J. ordered that Mubarik was prohibited from engaging in certain forms of conduct. This included not attending at YCC 188’s management office or at the homes of any of the directors, officers, or management personnel of YCC 188, and not communicating directly or indirectly with the representatives of YCC 188 or any third party, other than the property manager for an issue relating to the management of the property (which shall only be in writing). In addition, Mubarik was prohibited from acting in any manner that was abusive, vulgar, or could in any way constitute a threat or harassment, attempting to interfere with the operations of YCC 188, or making any false or defamatory statement concerning YCC 188 or its representatives. Mubarik was also prohibited from posting any document or notice whatsoever within the common elements of YCC 188. Mubarik was only permitted to circulate communications within the condominium building for a purpose permitted under the Act.

[17] These prohibitions against Mubarik, reflected in paragraph 3 of the Glustein Order, remain in place.

[18] In addition, Glustein J. found that the Chaudhry Parents failed to take reasonable steps to prevent Mubarik’s misconduct, and “to the contrary, signed letters of authorization approving Mubarik’s conduct in permitting him to act on their behalf” in violation of sections 134 and 117 of the Act.

[19] Glustein J. awarded costs of the application to YCC 188 on a full indemnity scale, jointly and severally, against the Chaudhry Parents, as the owners of Unit 701, and Mubarik in the sum of $23,000. The costs were ordered collectible by YCC 188 as a common expense of Unit 701.

[20] Glustein J. also awarded damages to YCC 188 in the sum of $17,500, representing the legal costs incurred by it as a result of Mubarik’s misconduct prior to the commencement of the application, of which $15,946.00 was payable by the Chaudhry Parents. Those costs were also ordered collectable as a common expense of Unit 701, meaning that the condominium corporation could collect these costs as, in effect, a lien against the unit.

[21] An appeal of the Glustein Order was dismissed for delay by the Divisional Court on May 26, 2017.

[22] In light of their failure to pay the costs awarded by Glustein J. , YCC 188 brought a motion for summary judgment against Mubarik and the Chaudhry Parents returnable before Koehnen J. on August 23, 2017. His Honour expressed “very serious concerns” about the fact that Mubarik was purporting to speak on behalf of Shabana and the Chaudhry Parents.

[23] The motion was adjourned to September 13, 2017 to ensure that an Urdu interpreter would be in attendance for the benefit of the Chaudhry Parents and Shabana, as well as an Urdu speaking representative from a legal aid clinic. Justice Koehnen also provided the name and phone number of a health clinic that could counsel the Chaudhry Parents and Shabana, in Urdu, with respect to Mubarik’s potential psychological issues.

[24] On September 13, 2017, Koehnen J. revoked a letter of authorization under which Mubarik was operating as representative of the Chaudhry Parents and Shabana. The respondents were present to hear this order.

[25] Then on October 13, 2017, Koehnen J. issued oral reasons with the respondents present, granting a writ of possession to YCC 188 in relation to Unit 701 on the condition that if the accrued debt to YCC 188 (in the total sum of $48,954.46) was not fully paid by January 12, 2018, YCC 188 would have been at liberty to execute on the writ of possession without further notice.

[26] The writ of possession was not executed, presumably because the debt was paid.

[27] This juridical background is important, as it reflects findings of serious misconduct by Mubarik and complicity by the Chaudhry Parents in failing to take reasonable steps to prevent Mubarik’s misconduct, all in violation of the Act. The Chaudhry Parents have been on notice of Mubarik’s conduct and their role in enabling it since at least the date of the Glustein Order and Reasons, and this was reinforced by the Koehnen J. reasons delivered orally in their presence. Further, the Chaudhry Parents have been the subject of these cost awards and have had to pay them.

[28] This juridical background is also important because it demonstrates that the court has recognized the possibility that the Chaudhry Parents were under Mubarik’s influence and the court ensured that they received translation into their first language and some legal assistance in the proceedings before Koehnen J., including for the delivery of the oral reasons.

B. CURRENT PROCEEDING

[29] YCC 188 alleges that Mubarik has continued to engage in substantially similar conduct to that sanctioned by Justice Glustein, and which violates the Act, the declaration, the by-laws, and the rules. YCC 188 further alleges that the Chaudhry Parents once again did not take reasonable steps to prevent their son from engaging in the subject misconduct until his recent departure from Unit 701.

i. Claims Against Mubarik, Aside from the Contempt Allegation

Statutory Framework

[30] YCC 188 seeks orders enforcing compliance by Mubarik under s. 134 of the Act, which provides standing to the condominium corporation:

134(1) Subject to subsection (2), an owner, an occupier of a proposed unit, a corporation, a declarant, a lessor of a leasehold condominium corporation or a mortgagee of a unit may make an application of the Superior Court of Justice for an order enforcing compliance with any provision of this Act, the declaration, the by-laws, the rules or an agreement between two or more corporations for the mutual use, provision or maintenance or the cost-sharing of facilities or services of any of the parties to the agreement.

[31] As against Mubarik, the key provision of the Act that he is said to have violated through his course of communications and activities, while an occupant of Unit 701, is s. 117:

117 No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.

[32] Section 119(3) of the Act also provides that the condominium corporation, amongst others, has the right to enforce compliance with this section of the Act, the declaration, the by-laws, and the rules of the condominium corporation.

[33] It is well known that residents of condominium buildings operate as a community, within which the unit owners share mutual rights and obligations under the auspices of the condominium corporation, through an elected board of directors. The Act, together with the condominium corporation’s own declaration, by-laws, and rules, define the rights, obligations, and remedies that all unit owners agree to be governed by when they purchase a unit. By corollary, unit owners are entitled to expect that their co-unit owners will also abide by these terms and obligations and that the condominium corporation will enforce compliance: see, ss. 17(2) and (3) of the Act; Re Carleton Condominium Corp. No. 279 and Rochon et al. (1987), 1987 4222 (ON CA), 59 O.R. (2d) 545 (C.A.), at p. 552.

[34] Indeed, YCC 188 is under a positive obligation to take all reasonable steps to enforce the Act, and the Corporation’s Declaration, by-laws, and rules: York Condominium Corporation No. 82 v. Singh, 2013 ONSC 2066, at para. 40.

[35] The relevant sections of the Act for purposes of this analysis are s. 117, 119, and 134. While YCC 188’s Notice of Application referenced s. 135 of the Act (relating to oppressive conduct), that section was not pursued.

[36] Section 117 of the Act prohibits any “person” from permitting a condition to exist or to carry on an activity in a unit or within the common elements (such as the lobby) if the condition or activity is likely to damage the property or cause injury to an individual. In this context, “injury” includes psychological harm that is beyond a trifling nature: see York Condominium Corporation No. 136 v. Roth, 2006 29286 (Ont. S.C.); Metropolitan Toronto Condominium Corp. No. 747 v. Korolekh, 2010 ONSC 4448, 322 D.L.R. (4th) 443, at para 71.

[37] Section 119(1) of the Act requires condominium corporations, unit owners, and residents to comply with the Act (including s. 117), and the declaration, by-laws, and rules of the condominium corporation.

[38] The Court has broad remedial powers and may grant any relief as is fair and just in the circumstances under s. 134(3) of the Act:

134(3) On an application, the court may, subject to subsection (4),

(a) grant the order applied for;

(b) require the persons named in the order to pay,

(i) the damages incurred by the applicant as a result of the acts of non-compliance, and

(ii) the costs incurred by the applicant in obtaining the order; or

(c) grant such other relief as is fair and equitable in the circumstances.

Subsection 134(4) of the Act has no application to this proceeding.

YCC 188’s Evidence

[39] The affidavit evidence filed on behalf of YCC 188 provides substantial and persuasive evidence in support of its allegations that Mubarik, while an occupant of Unit 701 and beyond, has continued to engage in conduct that is in violation of s. 117 of the Act since the Glustein Order.

[40] This activity consisted of repeated and persistent communications to the property manager (Paul Gialedakis) and directors of YCC 188, members of YCC 188’s law firm (Folger Rubinoff LLP), and unit owners themselves. The tone and content of many of these communications can be reasonably characterized as harassing, intimidating, abusive and threatening. Many of the communications have also contained false, discriminatory, and offensive allegations made by Mubarik against these targeted audiences.

[41] As a result of this pattern of activity, the Toronto Police Services charged Mubarik in or around early 2017 with criminal harassment relating to his interactions with the property manager, officers, and directors of YCC 188 and the corporation’s lawyers.

[42] The charges were withdrawn after Mubarik entered into a recognizance, which contained conditions requiring Mubarik to cease contact with the property manager and members of the Board of Directors of YCC 188 and its lawyers (the “Recognizance”), except to respond to the ongoing legal proceedings. The Recognizance was issued on August 1, 2017 and was for a term of twelve months.

[43] After signing the Recognizance, Mubarik distributed further offensive communications. For example, on December 2, 2017, Mubarik sent an email to Ms. Dirks, counsel to YCC 188, stating in part: “Congratulation on your victory. We are selling our apartment to pay you off.” This was one of several emails sent to Ms. Dirks over several days in apparent contravention of the Recognizance.

[44] As a result of these emails, a Toronto police detective from the bail compliance unit warned Mubarik to stop these communications.

[45] Notwithstanding this warning, on June 20, 2018, Mubarik sent a further email to Ms. Dirks, which again was not for purposes of responding to legal proceedings.

[46] On July 3, 2018, Mubarik sent another email to YCC 188’s lawyers stating, in part, that the board elections were illegal and threatening to start a lawsuit against the law firm for a “number of criminal codes includes robbery”.

[47] As these communications appeared to be contrary to the terms of the Recognizance, the Toronto Police Services again warned Mubarik on July 6, 2018 to cease his harassment, failing which he would be in danger of breaching the terms of his bail.

[48] In and around March 2019, after this Recognizance expired, Mubarik sent letters to unit owners that made disturbing and disparaging remarks about the Ahmadiyya Muslim community in Canada, calling that community a “Mafia, Terrorist and Extremist” organization. Members of this community are residents at YCC 188.

[49] The letters stated the following:

(a) the Ahmadiyya community manipulates and controls the Board of YCC 188 by, amongst other things, taking kickbacks, preventing the Board from sending out “original financial reports,” and commencing lawsuits against “unit 701”;

(b) the property manager for YCC 188 works for the Ahmadiyya Community and not YCC 188;

(c) the Board allows the property manager to take cash kickbacks from building contracts;

(d) certain residents, with their floor and unit numbers identified, voted “Ahmadi”; and

(e) key fobs have been distributed to “Ahmadis” not living in the condominium building.

[50] The letters from Mubarik also asserted the following: “Ahmadiyya Muslim Community is a Terrorist and Extremist”; a “Revolution is Organized by 701”; “Ahmadiyya Community sent me a threat. Attached. We will suicide”; and “All Ahmadis in the building should be held responsible for Mosque & MTA’s outstanding.”

[51] Mubarik continued his campaign of harassing and disparaging communications aimed at the Ahmadiyya resident unit owners, the Board, and the property manager throughout 2019 to in or around May of 2021.

[52] On April 12, 2019, one of the board members of YCC 188 received a letter signed by Mubarik immediately after a visit by the Toronto police to Unit 701 cautioning him about his activities at the condominium building. The letter was written in the Roman Urdu language. A translation is as follows:

My Beloved Master (Supreme Head of Worldwide Ahmadiyya Community England)!

1. Today you sent police at my home.

2. You’re a liar Caliph.

3. How come a caliph be true if he’s watching cruelty and still remain quiet.

President is shameless/thick skinned, National president is shameless/thick skinned, Caliph is shameless/thick skinned. Ahmadiyya is lie.

[53] Mubarik also wrote letters accusing the property manager of YCC 188 of committing fraud and misleading the board of directors, such as in a letter dated April 26, 2019 addressed to the president of the Board.

[54] This pattern of conduct continued despite three warnings from the Toronto Police Services to stop this behaviour in July 2018 and April 2019, and also letters from YCC 188’s legal counsel to cease and desist, warning that YCC 188 viewed this conduct as being in direct violation of the Glustein Order.

[55] As I will detail later in these reasons, the affidavits submitted by YCC 188 reveal further such communications and conduct by Mubarik, some of which are attributed to the Chaudhry Parents, and which are also harassing, defamatory, and intimidating.

[56] As a result of Mubarik’s disparaging communications aimed at the Ahmadiyya community, a sect of Islam that has been subjected to religious persecution and discrimination, YCC 188 and its property manager have received concerns from many unit owners that they fear for their safety.

[57] In addition, the property manager and some of the directors have expressed concern for their own safety as a result of Mubarik’s activities and communications. For example, Mubarik has sent communications making unfounded allegations of fraud and other illegal conduct on the part of the property manager, board members, and YCC 188’s lawyers.

[58] Mubarik has also commenced a series of proceedings before the Condominium Management Regulatory Authority of Ontario (CMRAO), including two in 2021, as well as an application before the Condominium Authority Tribunal (CAT), all of which have been dismissed.

[59] After Mubarik moved out of Unit 701, he continued to engage in inappropriate conduct as outlined in the affidavit of Betty Lau sworn October 5, 2021. Ms. Lau is a law clerk at the law firm representing YCC 188. Attached as an exhibit to this affidavit is an email dated September 20, 2021 from Mubarik addressed to the managing partner of YCC 188’s law firm and others at that firm, accusing the lawyers of having “created a law and order situation in Canada by misleading all the authorities”. Mubarik again accuses the lawyers of fraud. Also attached to this affidavit as an exhibit is an exchange between Mubarik and the Office of the Independent Police Review Director (OIPRD) regarding Mubarik’s complaint received on September 15, 2021 concerning police conduct that appears to be primarily relating to enforcement of the Recognizance and subsequent behaviour related to YCC 188.

Mubarik’s Response

[60] Mubarik appeared at the motion and made submissions to the court. He denies all of the allegations and accuses YCC 188 of twisting his words to mislead the court.

[61] Mubarik did not file any affidavit in response to this motion, nor did he cross examine any of YCC 188’s deponents. He is self-represented in these proceedings.

[62] When it became clear that he wished to give evidence, I invited him to provide sworn testimony. He agreed and was affirmed.

[63] Mubarik testified that he is a patient of a psychiatrist and that the psychiatrist told him his “mental situation is bad.” He testified that he has been suicidal and has visited his family doctor who is concerned about him. He testified that he is depressed. He said that he looks like a healthy man, but he is not.

[64] He also testified that he did not receive the motion record or any of the supplementary motion records of YCC 188 until it was too late to prepare a response. However, YCC 188 has filed affidavits of service evidencing service of the various motion records, supplementary motion records, and factum on Mubarik in a timely manner.

[65] Mubarik tendered into evidence two exhibits that were uploaded to CaseLines. Exhibit 1 consists of two photographs—one was the Recognizance signed by Mubarik and dated October 6, 2016, and the other document was a photograph of an invoice from YCC 188’s property management company reflecting the amount charged by YCC 188’s law firm for work being charged back to Mubarik, dated October 24, 2016.

[66] Exhibit 2 is an email chain from Mubarik to YCC 188’s lawyer dated July 15, 2021 evidencing Mubarik’s complaint to the OIPRD, and a further email chain dated June 16, 2021 from Mubarik to various individuals, including media personnel and city councillors, which involves his complaints against the police relating to the enforcement of the Recognizance and conduct relating to the condominium corporation, which was referenced earlier in these Reasons.

[67] These documents are also attached as exhibits to affidavits filed by YCC 188.

[68] Mubarik’s testimony had little probative value to the issues at hand. Mubarik did not deny most of the allegations made against him apart from the bald allegation that YCC 188 was twisting his words.

[69] By contrast, YCC 188’s affidavits are detailed, and attached many exhibits that corroborate the allegations, including Mubarik’s own communications. There have been no cross-examinations conducted, therefore, these affidavits were largely uncontested.

[70] Accordingly, I prefer the evidence of YCC 188 to that of Mubarik’s for purposes, only, of this proceeding. As stated, the motion for contempt has been adjourned, and any findings of fact made by me in the course of this proceeding are not relevant to the motion for contempt against Mubarik, since those allegations must be proven beyond a reasonable doubt (the criminal standard of proof) and not the (lower) civil standard of the balance of probabilities: York Condominium Corporation No. 82 v. Singh 2013 ONSC 2066, at paras. 5-6, and the cases cited therein.

Conclusion and Remedy Against Mubarik Chaudhry

[71] Based on my review of the evidence and the submissions of the parties, I find that the factual allegations put forward by YCC 188 against Mubarik are proven on a balance of probabilities, and that Mubarik has engaged in a course of communications and activities since the making of the Glustein Order that is in violation of s. 117 of the Act.

[72] More specifically, Mubarik’s course of communications and activities is likely to cause injury to individuals; namely, the unit owners who are members of the Ahmadiyya Muslim community, the property manager, the directors of YCC 188’s Board, and the lawyers representing YCC 188. The injury arises from the discriminatory, defamatory, intimidating and harassing nature of the specific allegations contained in the communications targeting individuals by means of their religious beliefs, and others because of their positions of authority or employment within YCC 188 and their alleged “control” by or affiliation with the Ahmadiyya Muslim community, together with Mubarik’s pattern of frivolous and vexatious administrative proceedings, including repeated baseless records requests made to the Board, and proceedings before various tribunals and regulatory bodies.

[73] The seriousness of Mubarik’s conduct is heightened by the fact that he was the recipient of many warnings, including from police officers, and yet, after a temporary reprieve following police warnings, he resumed this course of conduct. The evidence also demonstrates that he likely co-opted his parents to continue in his campaign of harassment.

[74] Where the impugned conduct has been persistent and unrelenting, despite the issuance of court orders sanctioning similar conduct, the court has jurisdiction to make such orders as is fair and just to prevent the recurrence of such harmful conduct.

[75] This is an extreme case in which the exercise of this court’s discretion to impose serious measures to enforce compliance with s. 117 of the Act, the Declaration, and by-laws of YCC 188 pursuant to s. 134(3)(c) of the Act is warranted: see for example York Condominium Corporation No. 137 v. Hayes, 2012 ONSC 4590, at paras. 19, 49.

[76] It is clear from Mubarik’s conduct after leaving Unit 701 that an order is warranted to restrict his ability to engage in this pattern of conduct even though he has left the unit. It is also clear that so long as his parents are unit owners, there is a real danger that Mubarik will co-opt them in the future to enable his conduct.

[77] I make the following orders as reflecting relief that is fair and equitable in these circumstances, keeping in mind the need to protect the unit owners, occupiers, employees, and directors of YCC 188, and its lawyers, from Mubarik’s dangerous activities that violate s. 117 of the Act:

(a) Mubarik is prohibited from renting or occupying any unit within YCC 188;

(b) Mubarik is prohibited from visiting or attending at the condominium property of YCC 188. In making this order I am aware that this prevents Mubarik from visiting his elderly parents at their unit. However, in the course of submissions, the lawyer for Mubarik’s mother, Amtul, stated that these visits will now occur outside the condominium property of YCC 188 in any event;

(c) Mubarik is to refrain from knowingly approaching, within 30 feet, any of the following people: the property manager, employees and directors of YCC 188, and lawyers from YCC 188’s law firm, Folger, Rubinoff LLP including Carol A. Dirks.

(d) Mubarik is prohibited from engaging in any harassing or abusive conduct, either directly or indirectly, towards any representative of YCC 188, including but not limited to property management staff, directors, officers, lawyers, and agents of YCC 188;

(e) Mubarik is prohibited from directly, or through others, communicating, publishing, circulating, or disseminating any statement or materials whatsoever regarding YCC 188 or any of its property management, staff, employees, directors, officers, lawyers, or agents to any person, with the exception of commencing any lawful proceeding before a court or tribunal or responding to any such lawful proceeding.

[78] I will address the request for costs against Mubarik under the next section of these Reasons.

ii. Claims against the Chaudhry Parents, including costs sought jointly with Mubarik

Did the Chaudhry Parents take Reasonable Steps to Prevent Mubarik from Violating s. 117 of the Act

[79] The relief sought against the Chaudhry Parents is:

(a) a declaration that they have violated section 119 of the Condominium Act by failing to take reasonable steps to ensure that Mubarik complied with the Act, and the Declaration, by-laws, and rules of YCC 188;

(b) an order requiring the Chaudhry Parents as registered owners of Unit 701, together with Mubarik, to jointly and severally pay, as damages, the legal costs incurred by YCC 188 in dealing with the Chaudhry Parents and Mubarik’s actions prior to the filing of this motion on a full indemnity basis, plus all applicable taxes, and that such costs be recoverable against Unit 701 in the same manner as common expenses; and

(c) an order that the Chaudhry Parents and Mubarik are also joint and severally liable to pay the costs of this motion on a full indemnity basis, plus all applicable taxes, and that such costs will be recoverable against Unit 701 in the same manner as common expenses.

[80] The issue under this branch of the motion is whether the Chaudhry Parents failed to take reasonable steps to prevent Mubarik’s misconduct contrary to s. 119(2) of the Act:

119(2) An owner shall take all reasonable steps to ensure that an occupier of the owner’s unit and all invitees, agents and employees of the owner or occupier comply with this Act, the declaration, the by-laws and the rules.

YCC 188’s Evidence

[81] The evidence against the Chaudhry Parents is that they signed and/or sent communications either in their own right or on behalf of Mubarik that violates s. 117 of the Act.

[82] YCC 188’s evidence demonstrates that on or about June 20, 2018, Mubarik left two letters at the door of the president of the Board of Directors. Both letters were signed by the Chaudhry Parents and were similar in tone and content to an email sent by Mubarik to YCC 188’s lawyer reflecting accusations that the lawyers had engaged in fraud.

[83] Then, in or around May 2019, the Chaudhry Parents hired their own lawyer, Sally Harris. Ms. Harris then made three requests for records of the Board of Directors of YCC 188 pursuant to the Act, on behalf of her clients. These requests mirrored each other, and requested records going back seventeen years. They largely related to prior requests made by Mubarik in years past concerning his unfounded suspicion that a party room was permitted to be used as a mosque by the Ahmadiyya residents and concerning a satellite antennae on the roof of the building. All of Mubarik’s requests had been rejected. The Chaudhry Parents’ requests were dated May 15, 2019; July 21, 2020; and December 7, 2020. In the course of responding to the Chaudhry Parents’ requests on behalf of YCC 188, Ms. Dirks advised Ms. Harris of the prior court orders made against Mubarik and the Chaudhry Parents, and that YCC 188 considered this course of conduct to be in violation of the Glustein Order. Ms. Dirks also expressed YCC 188’s concern that Mubarik was the driving force behind these improper requests, and that Koehnen J. had revoked the letter authorizing Mubarik from acting on behalf of his parents.

[84] On October 23, 2020, the property manager received a letter signed by the Chaudhry Parents, threatening a proceeding before the CAT and asking permission to share that proceeding with all of the unit owners. In that letter, reference was also made to the Law Society of Ontario and the CMRAO. The letter was also copied to various third parties, including CBC News and the Toronto Sun.

[85] After Ms. Harris ceased representing the Chaudhry Parents in early 2021, Mubarik’s father, Ghulam Chaudhry (“Ghulam”) delivered a further request for records, on or about February 17, 2021. Again, this request mirrored the earlier requests. Ms. Dirks responded by letter dated March 11, 2021, attaching the Board’s Response (rejecting the request) and reminding Ghulam that similar past conduct had been sanctioned by this court by way of costs awards. Ghulam was also advised that if he persisted in this course of conduct, YCC 188 would be seeking remedies against him, including the costs of any such legal proceedings to enforce compliance pursuant to the Act and YCC 188’s Declaration.

[86] Notwithstanding this warning, the property manager, Mr. Gialedakis (“Gialedakis”), deposed in his affidavit that he received a letter on April 23, 2021, “purporting to be from Mr & Mrs. Ghulam Nabi Chaudhry, but based on the language, and the previous letter wherein Mubarik confirmed that he was writing on behalf of his parents, I strongly believe that Mubarik also wrote this letter.” This letter suggested that the order made by Koehnen J. was a “fraud lien”:

In October 2017, Justice Koehnanne [sic] awarded you a fraud lien against your property because a Lawyer appointed by the Judge was stupid and an idiot lawyer. Judge wrote in his second endorsements how stupid and an idiot was a Lawyer appointed by the Judge. Justice Koehnanne already told us that we will lose our appeal in regards to Small Claims Court. Justice Koehnanne is a HERO JUDGE.

[87] On or about April 26, 2021, letters were again purportedly sent by the Chaudhry Parents, but signed by Mubarik on their behalf. One of the letters was sent to the CMRAO and the second letter was addressed to the president of the board of directors. The letter to the board’s president accuses the property manager (once again) of fraud. This letter was shown as copied to many third parties, this time including the Prime Minister of Canada, the Premier of Ontario, various media outlets, and the “Supreme Head of Ahmadiyya Muslim Community of World.”

[88] On May 3, 2021, another letter, purportedly signed by “Mr. & Mrs. Ghulam Nabi Chaudhry” was sent to the Board accusing Gialedakis of fraud.

The Chaudhry Parents’ Evidence

[89] The only evidence filed in response to this motion was an affidavit by another son, Ahmed, filed on behalf of Amtul. In it, Ahmed advises that he is concerned about his parents’ mental capacity and their ability to respond to this motion.

[90] Ahmed confirmed the Chaudhry Parents attendance before Koehnen J. on October 13, 2017 and confirmed that they had the benefit of an Urdu translator. He also confirmed that the Chaudhry Parents subsequently hired a lawyer, Sally Harris, but terminated her retainer in or around March 2021.

[91] There is no evidence before the court supporting the contention that Ms. Harris had any concerns with the mental capacity of the Chaudhry Parents to instruct or to terminate her retainer. There is no suggestion that Ms. Harris did not abide by the Rules of Professional Conduct, which govern lawyers with respect to obligations that flow to a lawyer when the lawyer is concerned that her client lacks capacity to instruct her.

[92] Ahmed deposed that on January 28, 2019, his parents executed a power of attorney for personal care and for property “as a result of growing concerns [by the Chaudhry Parents] of their mental depreciation.” They appointed each other as their attorneys and appointed Mubarik as the alternate attorney in the event that they were unable to carry out those functions. The fact that these powers of attorney were entered into does not support the inference that Ahmed suggests, namely, that his parents were therefore already suffering from a diminished mental capacity.

[93] Furthermore, according to Ahmed’s affidavit, on June 22, 2021 the Chaudhry Parents revoked Mubarik’s designation as an alternate power of attorney for each of them. This suggests that as of June 22, 2021, the Chaudhry Parents had mental capacity.

[94] In fact, there is no evidence in the record before this court to support the submission that the mental capacity of either of the Chaudhry Parents has deteriorated to the point that they lack mental capacity.

[95] To the contrary, Amtul’s lawyer confirmed at the hearing that Amtul had sufficient capacity to give him instructions.

[96] Ahmed alleged that Mubarik manipulated and tricked his parents into “fraudulently transferring” title to Unit 701 to Mubarik and his former spouse, Shabana, and he also sold their property located in Pakistan, while keeping the money for himself. Ahmed deposed that this is evidence that Mubarik exploited his parents’ inability to speak or read English, leading to the distribution of letters and requests purportedly signed by the Chaudhry Parents. In this latter contention, there is some support from the Gialedakis’ affidavit as indicated previously in these Reasons. However, this submission is somewhat at odds with the findings of Glustein J. and the concerns of Koehnen J. expressed to the Chaudhry Parents, particularly in light of the fact that the Chaudhry Parents retained a lawyer shortly after their appearance before Koehnen J. It is also somewhat at odds with the affidavit evidence filed by YCC 188, particularly as related to the correspondence between Ms. Dirks and Ms. Harris, in which Ms. Dirks’ clearly sets out YCC 188’s concerns that the author of the correspondence purportedly signed by the Chaudhry Parents is Mubarik, and highlighting the concerns of Koehnen J. regarding Mubarik’s influence over the Chaudhry Parents.

[97] No supporting evidence from a qualified healthcare professional setting out an opinion on capacity or a capacity assessment was tendered by or on behalf of either of the Chaudhry Parents.

[98] Furthermore, no affidavit evidence was tendered by either of the Chaudhry Parents in support of Ahmed’s concerns or denying any of the specific allegations supported by YCC 188’s affidavits.

[99] Ahmed deposed that on June 30, 2021, the Chaudhry Parents and two other siblings of Mubarik, Tahir Chaudhry and Mubarkah Iram Chaudhry, met with Mubarik and demanded that he leave Unit 701 under threat of police intervention. Mubarik agreed to leave.

[100] On July 6, 2021, Mubarik left Unit 701, leaving behind his key and access cards to Unit 701 and the condominium building with his brother Tahir Chaudhry. In addition, the Chaudhry Parents changed the locks on the door of their unit, presumably in case Mubarik had another key.

[101] Ahmed’s affidavit offers no probative evidence on the issue of whether his parents took any steps to ensure that Mubarik complied with the Act, the Declaration, or its by-laws and rules prior to the Family Meeting. Most of his evidence is hearsay and is on matters that are controversial. Accordingly, where Ahmed’s affidavit conflicts with evidence from YCC 188, I prefer YCC 188’s evidence.

[102] The evidence filed on behalf of Amtul is wholly inadequate to rebut the extensive affidavit evidence filed by YCC 188 in support of its claim that the Chaudhry Parents did not take reasonable steps to prevent Mubarik’s misconduct and in support of its claim for a declaration against the Chaudhry Parents under section 119(2) of the Act. The Chaudhry Parents were on notice from prior court proceedings of Mubarik’s misconduct, primarily in the form of sending unwelcome correspondence, yet they continued to sign letters and/or deliver letters on behalf of Mubarik. This despite the warnings conveyed by YCC 188’s lawyer to their own lawyer, that, in YCC 188’s view, the conduct was contrary to the Glustein Order.

[103] The only evidence before the court with respect to the steps taken by the Chaudhry Parents to prevent Mubarik from engaging in his pattern of inappropriate injurious activities is the Family Meeting convened at which Mubarik was given an ultimatum to leave, and which was successful. This did not happen until the eve of this hearing.

[104] Based on the evidence, I also reject the allegation that the Chaudhry Parents lacked mental capacity to understand whether they were being manipulated by Mubarik or that they were unaware of Mubarik’s activities given their inability to read or write English, particularly in light of the appearances before Koehnen J. and the fact that their own lawyer was alerted to this concern.

[105] Accordingly, I find that the YCC 188 has proven on the balance of probabilities that the Chaudhry Parents did not take reasonable steps, in the circumstances of this matter, to ensure that their son, Mubarik, when he was an occupant of Unit 701 did not violate s. 117 of the Act until the family stepped in and finally prevailed successfully upon Mubarik to leave the unit.

Are Costs Warranted Against the Chaudhry Parents as a Chargeable Common Expense?

[106] Under s. 119(1) of the Act, the Chaudhry Parents, as unit owners, are bound to the Declaration of YCC 188. Declaration X states,

X INDEMNIFICATION

Each owner shall indemnify and save harmless the corporation from and against any loss, costs, damage, injury of liability whatsoever which the corporation may suffer or incur resulting from or caused by an act or omission of such owner, his family or any member thereof, any other resident of his unit or any guests, invitees or licensees of such owner or resident to or with respect to the common elements and/or all other units, except for any loss, costs damages, injury or liability caused by an insured (as defined in any policy or policies of insurance) and insured against by the corporation.

[107] Declaration X is quite broad and encompasses Mubarik’s and the Chaudhry Parents’ conduct and failures.

[108] I have some sympathy for the elderly Chaudhry Parents. It is reasonable to infer that Mubarik has been difficult for the Chaudhry Parents to manage - he is an adult person and has exhibited a determination to carry out his intentions. On the other hand, there is also some evidence, which I accept, that the Chaudhry Parents were, to some degree, complicit in handing out unwanted and arguably racist brochures to other residents in the building and in signing letters and making records requests that were remarkably similar in tone and content to Mubarik’s own signed letters and records requests. They did this despite warnings from YCC 188’s lawyers..

[109] Furthermore, this court was not provided with any explanation grounded in the evidence as to why aggressive and firm action was not taken by Mubarik’s siblings with the Chaudhry Parents before the Family Meeting, given the prior pattern of conduct leading to the Glustein J. and Koehnen J. Orders, and the siblings’ knowledge as to Mubarik’s apparent misdeeds relating to taking title to Unit 701 and selling the Chaudhry Parents’ property in Pakistan for his own use.

[110] Also, I must consider the rights of the other members of the condominium corporation who are innocent in this matter and ought not to be burdened with the legal costs caused by Mubarik while he was living in Unit 701 with his parents, and the mutual obligations that each unit owner enters into when they purchase a unit. The language of Declaration X is clear and binding on the Chaudhry Parents.

[111] I have discretion in fixing costs. One of the factors that is relevant in this case is Declaration X. I have also considered the reasonable expectations of the Chaudhry Parents which, in turn, must be informed by Declaration X, and Amtul Chaudhry’s own cost outline which pertains to this motion only. In relation to the latter, I observe that the work done on Amtul’s behalf was of a far lesser magnitude than the work that necessarily was done on behalf of YCC 188. I have also considered the principle of proportionality: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 42.

[112] . The courts will generally enforce full indemnity provisions contained within declarations against condominium unit owners; see for example Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc., 2005 CarswellOnt 1576 (Ont. C.A.). In the end, I am persuaded that damages (being the legal costs incurred by YCC 188 leading up to this motion) and costs of this motion should be awarded against the Chaudhry Parents pursuant to Declaration X for failing to take reasonable steps to prevent Mubarik’s misconduct.

[113] I am assessing damages in the equivalent of the legal costs incurred by YCC 188 for work done prior to the motion at $9,869.32 and legal costs of the motion at $50,000, all-inclusive of fees, HST, and disbursements, payable on a full indemnity basis, and assessable as a common expense against Unit 701. These awards are payable by Mubarik and the Chaudhry Parents on a joint and several basis.

[114] In my view, this is a fair and reasonable result in the exercise of my discretion to award and fix costs under s. 131 of the Courts of Justice Act and is one that reflects the factors listed under R. 57.01. It is also consistent with Glustein J.’s determination in the earlier proceedings for similar conduct.

Justice S. Vella

Released: October 22, 2021