Court File and Parties
COURT FILE NO.: CV-21-00666421-0000
DATE: 20211105
ONTARIO
SUPERIOR COURT OF JUSTICE
APPLICATION made pursuant to, Rules 14.05(2), 14.05(3)(d)(g)(h), 38 and 40.02 of the Rules of Civil Procedure, section 101 of the Courts of Justice Act and sections 17(3), 26, 117, 119, 134 and 135 of the Condominium Act, 1998
BETWEEN:
METRO TORONTO CONDOMINIUM CORPORATION NO. 856
Applicant
- and -
ANNA TOMASETTI, THOMAS TOMASETTI AND ALBERTO TOMASETTI
Respondents
COUNSEL:
Fatima Vieira for the Applicant
HEARD: October 29, 2021 and November 5, 2021
REASONS FOR DECISION
PERELL, J.
[1] On July 30, 2021, Metro Toronto Condominium Corporation No. 856 brought an application for:
(a) an interlocutory and permanent injunction pursuant to inter alia, section 134 of the Condominium Act, S.O. 1998, c. 19 and if necessary an interlocutory injunction without notice pursuant to Rule 40.02 of the Rules of Civil Procedure, prohibiting the respondent Alberto Tomasetti (“Albert”) from:
(i) uttering threats to residents and personnel of MTCC 856;
(ii) carrying weapons or tools including blades, knifes, and hammers and threatening physical violence to persons while on the common elements or in the Unit;
(iii) sending communications to the personnel of MTCC 856 that disparage the residents and personnel of MTCC 856;
(iv) inviting and allowing Mary upon the property and giving her access with a fob and keys to the property of MTCC 856;
(v) disturbing the comfort and quiet enjoyment of the common elements of persons on the property; and,
(vi) entering or coming within 25 feet of the management office located on the property, in so far as the physical configuration of the property permits and where it does not, keeping the maximum possible distance between the management office.
(b) an order pursuant to section 134 of the Condominium Act ordering the Respondents Albert, Anna Tomasetti (“Anna”) and Thomas Tomasetti (“Thomas”) to:
(i) comply with Rule 8 of the Rules of MTCC 856, which prohibits the creation or continuation of any noise or nuisance, which in the opinion of the Board or Manager of MTCC 856 may or does disturb the comfort or quiet enjoyment of the property by other residents, guests, visitors, personnel and persons having business with them;
(ii) immediately return to the property management office of MTCC 856 all fobs and keys to access all doors and elevators of MTCC 856 and of Unit 302;
(iii) immediately and permanently vacate Unit 302;
(iv) terminate any residential lease of Unit 302;
(v) as against Anna and Thomas, to immediately list Unit 302 for sale through a real estate agent and on Realtor within 90 days, transfer title and give up vacant possession of Unit 302 to a bona fide purchaser for value.
(c) an Order that the Respondent comply with section 117 of the Act by ceasing and refraining from abusing, harassing, intimidating and assaulting as the case may be MTCC 856 personnel and residents and from taking or disturbing property belonging to MTCC 856 and other residents.
(d) a declaration pursuant to section 134 of the Condominium Act that the Respondents have breached sections 116, 117, and 119 of Condominium Act and Rule 8 of MTCC 856’s Rules by causing or permitting, a nuisance and dangerous condition to exist in the unit and common elements;
(e) a declaration that the Respondent, Albert’s harassing, threatening and aggressive behaviour toward MTCC 856’s personnel constitutes workplace harassment for the purposes of the Occupational Health and Safety Act, R.S.O 1990, c. O.1.;
(f) a declaration that the Respondents, Albert and Thomas have breached their duties under s. 119 (2) of the Condominium Act for failing and/or neglecting to take reasonable steps to obtain the compliance of their occupant or tenant, Albert and his invitee, Mary, with ss. 116 and 117 of the Condominium Act and Rule 8 of MTCC 856’s Rules;
(g) if necessary, and order appointing a Litigation Guardian for Anna, pursuant to Rule 7.03 of the Rules of Civil Procedure;
(h) if necessary, an order dispensing with service and/or for substituted service and/or abridging the time for service of the materials for use on this Application, any interlocutory proceedings and any orders made herein;
(i) costs of this Application; and,
(j) Such other or further relief as this Honourable Court deems just.
[2] The Application came on before Justice Dunphy. The Respondents did not appear. On October 8, 2021, Justice Dunphy made the following endorsement:
[1] Service of the Notice of Application herein has thus far been effected only upon the respondent Alberto Tomasetti. The Applicant has no current address for the respondent owner of the subject unit Anna as she has not been seen in the building for several years.
[2] The respondent Thomas Tomasetti has not been served either. The Applicant does have some information as to Mr. Thomas Tomasetti's current address but more due diligence would be needed before I could be sufficiently satisfied to issue an order permitting substitutional service. There is information of uncertain currency to the effect that Thomas resides in a different condominium building in a unit purchased for him by his mother Anna. That information appears to be corroborated to some degree by Thomas' name figuring in the building directory in question and Anna's name appearing in the Land Titles Office as the registered owner of the unit. However, the Applicant has not yet done a formal skip trace to see what information that turns up. It has not checked with the Ministry offices to see what registered address may appear on a Driver's Licence for example. Finally, it has not inquired of management of the building whether Thomas is still resident there. Even if the address is a current one, the Notice of Application has not been served at that address nor left there addressed to him. Two separate visits by a process server resulted in no answer at the door.
[3] Based on the foregoing, I am of the view that I am only in a position to proceed to deal with the relief sought as against Alberto Tomasetti. Relief against Anna or Thomas will require actual service of the application materials upon either or both of them at a last known address specified in an order authorizing such substituted service.
[4] Alberto has lived in Unit 302, a unit registered in the name of his mother Anna, for more than 25 years and has been the sole occupant of that unit until recently. I shall not recite at length here the behaviour attributed to Alberto Tomasetti and his occasional guest Mary outlined in the application evidence. It is sufficient to observe that both of these individuals have been acting in an outrageous manner calculated to disturb the quiet enjoyment of the building by the other occupants and owners of it. Their behaviour alone and in the aggregate represents flagrant breaches of the rules governing the owners and occupants of MTCC 856. Among other actions, many of which have been recorded on security cameras: walking naked in the lobby and in the corridor outside his unit; defecating on the floor of the lobby, pounding on doors of neighbours, threatening management, throwing food from the balcony, yelling racial slurs at passers-by in the lobby or in the parking garage, ripping down seasonal decorations in the lobby, kicking doors and more. Numerous of these incidents resulted in police having to attend on the premises.
[5] The Applicant seeks an order as against Alberto that he vacate the unit, return all keys and fobs to property management, not enter the building other than to return the keys and fobs, not provide entry to or invite "Mary" into the building and to maintain a physical distance of 25 feet from the property and MTCC 856 property management staff and Board members. I have granted all of these orders as requested.
[6] The Applicant's current information is that Alberto has vacated the unit and put it up for sale with a conditional sale having been agreed to very recently. In light of that, the Applicant wishes to get its costs settled as soon as possible in order to be in a position to collect same from the unit owner should the property be sold shortly. Other than the relief granted as noted above, I adjourned the balance of the application to permit the Applicant to assemble its evidence regarding costs and to apply for an order for substituted service. I signed the draft order provided by the Applicant.
[3] On October 8, 2021, Justice Dunphy signed the following Order:
- Pursuant to section 134 of the Condominium Act, S.O. 1998, c. 19 (the “Condominium Act”), the respondent, Alberto Tomasetti shall:
i. immediately and permanently vacate Unit 302;
ii. return all fobs and keys to MTCC 856’s building and to Unit 302 to MTCC 856’s property management office, located at 2901 Kipling Avenue;
iii. not enter in or upon MTCC 856’s building or property located at 2901 Kipling Avenue (“the property”) for any reason, except to return the fob and keys as above in ii;
iv. not invite or provide entry to Mary (as referred to in the affidavits and notice of application herein) into or upon MTCC 856’s property;
v. maintain a physical distance of at least 25 feet from the property and MTCC 856’s property management staff and board of directors (“MTCC 856’s Personnel”);
- Costs of this application and other relief requested in the application shall be adjourned to a further hearing of this matter on a date to be determined.
[4] As appears from the above endorsement and Order, Justice Dunphy dealt only with the Application insofar as Alberto Tomasetti was concerned because of concerns about whether service had been made on Anna Tomasetti and Thomas Tomasetti. Justice Dunphy adjourned the balance of the Application.
[5] On October 29, 2021, the Application came on before me at the same time as the matter of service on Anna Tomasetti and Thomas Tomasetti was before Justice Myers. I, therefore, adjourned the Application to November 5, 2021.
[6] It now appears that on October 29, 2021, pursuant to Rule 16.08 of the Rules of Civil Procedure that Justice Myers ordered that: “service of the Notice of Application on Anna Tomasetti and Thomas Tomasetti is hereby validated.”
[7] The Application came on before me today, and insofar as Anna and Thomas Tomasetti are concerned, the Applicant now seeks only the following declaratory Order and costs of $17,393.00, all inclusive:
THIS COURT DECLARES THAT:
- Pursuant to section 134 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Condominium Act”), the respondents Anna Tomasetti and Thomas Tomasetti have breached their duties under s. 119(2) of the Condominium Act for failing and neglecting to take reasonable steps to obtain the compliance of their occupant or tenant, Alberto Tomasetti and his invitee “Mary” with ss. 116 and 117 of the Condominium Act and Rule 8 of MTCC 856’s Rules;
[8] This Application is undefended. Having reviewed the Application Record, I am satisfied that the Application should be granted as requested.
[9] Therefore, judgment to go as asked. I have signed the Judgment.
Perell, J.
Released: November 5, 2021
COURT FILE NO.: CV-21-00666421-0000
DATE: 20211105
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
METRO TORONTO CONDOMINIUM CORPORATION NO. 856
Applicant
- and -
ANNA TOMASETTI, THOMAS TOMASETTI AND ALBERTO TOMASETTI
Respondents
REASONS FOR DECISION
PERELL J.
Released: November 5, 2021