Court File and Parties

COURT FILE NO.: CV-19-618897-0000 DATE: 2021-11-23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Toronto Standard Condominium Corporation No, 2136 AND: Claire-Lise Beauchesne

BEFORE: J.T. Akbarali J.

COUNSEL: Deborah Howden, for the Applicant Alina Sklar, for the Respondent

HEARD: November 8 and 18, 2021

ENDORSEMENT

Overview

[1] This compliance application was brought by the applicant condominium corporation against the respondent, a unit owner. The parties have resolved the underlying application, but have been unable to resolve costs. These reasons deal with the costs of the proceeding.

Background

[2] The respondent has long suffered from mental health conditions, including a hoarding disorder, as well as major depressive disorder. For a long time, despite these conditions, she was able to maintain her unit to an acceptable standard.

[3] Her condition deteriorated beginning in 2017. Among other things, a criminal proceeding against her employer, at which she testified to the abuse she suffered at his hands, exacerbated her existing mental health conditions such that her ability to function became greatly impaired. She retired in January 2019.

[4] Beginning around 2017, the respondent’s unit became dangerously cluttered. At times, her items were found in the hallway. In addition, there were periods of time during which the front door to her unit was propped open. This caused concern to the applicant and other unit holders, because the respondent’s unit posed a fire risk, and moreover, without the fire-retardant door to her unit closed, any fire in the respondent’s unit could easily spread outside her unit.

[5] The parties present differing narratives of the interaction between the respondent and the applicant’s management that arose as a result of these concerns. The applicant characterizes the respondent as having been largely uncooperative, and refusing to accept the applicant’s offers of assistance in the decluttering of her unit.

[6] In contrast, the respondent deposes that one particular member of the applicant’s management, Adela Bertiean, engaged in a course of harassment towards her, increasing her distress, and leaving her less able to address the hoarding in her unit. She states that, despite requests for accommodation and correspondence from a human rights advocate explaining her situation and her needs, the applicant acted in violation of her rights under the Human Rights Code. She argues that this entire application was another step in the applicant’s harassment of her, and that the applicant’s request for costs is unreasonable in these circumstances, where she did not voluntarily breach her obligations as an owner, where she was not afforded appropriate accommodation, and where the applicant engaged in a course of harassment. She also argues that the costs sought by the applicant are unreasonable and excessive.

[7] Neither party was cross-examined on their affidavits.

Analysis

[8] Costs orders against non-compliant unit owners are common in compliance applications. In this case, the applicant points to s. 51 of its declaration, which provides that each owner shall indemnify the corporation for, among other things, any loss, costs or damages, including legal fees and expenses associated with any claim or action that are incurred as a result of any omission of the owner.

[9] Section 134(5) of the Condominium Act, 1998, S.O. 1990, c. 19, provides statutory recourse for a condominium corporation, allowing it to add to any award of damages or costs it receives in a court order the actual costs to the corporation of obtaining the order, and provides that the amount owing shall be added to the common expenses for the unit.

[10] This reflects a legislative choice not to require the other, innocent, unit holders to bear the cost of forcing the non-compliant owner’s compliance with the condominium’s rules and declarations.

[11] A unit owner is required, by s. 119(1) of the Act, to comply with the provisions of the governing documents of the condominium. At the same time, the condominium corporation has a statutory duty to take all reasonable steps to ensure owners comply with the governing documents: s. 17(3).

[12] It is apparent that the respondent failed to remain compliant with the condominium’s declaration. Among other things, the declaration includes restrictions on any condition or activity on the common elements that is likely to damage the property, injure any person, or unreasonably interfere with the use or enjoyment by other owners or residents of the common elements. The declaration also restricts any condition or activity in the units or portions of the units, which, among other things, is likely to damage the property or injure any person.

[13] The condominium’s rules specifically require the corridors not to be obstructed by any of the owners. They also prohibit any owner from doing anything in his or her unit, or keep anything in her or her unit, which will increase the risk of fire, or the rate of fire insurance in the building, or conflict with the laws relating to fire or the regulations of the fire department.

[14] It is apparent that the respondent’s inability to remain compliant with the rules stemmed from her serious mental health issues, and not from any deliberate intention to create a safety risk.

[15] It is also apparent that the respondent had difficulty dealing with Ms. Bertiean. She deposes that she filed a complaint against her at the Ontario Human Rights Tribunal. Moreover, the record includes a letter to the applicant from the respondent’s human rights advocate, asking that Ms. Bertiean’s conduct be addressed. The letter makes reference to repeated entries into the respondent’s unit without prior written notice, along with other actions that are alleged to have caused psychological distress. The applicant denies any harassment whatsoever.

[16] The record does not leave me in a position to determine whose version of facts is correct. I can neither conclude that Ms. Bertiean harassed the respondent, or that the applicant failed to respect her human rights, nor can I conclude that the respondent was obstructive and failed to cooperate in the decluttering and inspecting of her unit. I suspect that both parties have recounted the facts as they experienced them. The consent order the parties have entered into includes a term that the respondent leave her condominium by June 1, 2022, and that the inspection of the respondent’s unit shall not be done by Ms. Bertiean. The terms of the consent order suggest that the conflict between the respondent and Ms. Bertiean has been difficult for both of them.

[17] All in all, this is a compliance dispute, originating with the respondent’s serious mental health conditions, that has gotten entirely out of hand, and culminated in about three hours of argument over about $55,000 in costs.

[18] The question is whether the full indemnity costs, or indeed, any costs, are appropriate in the circumstances.

[19] I accept that the condition of the respondent’s unit was such that a compliance application was necessary. While the inability to declutter her unit is not something for which the respondent is morally blameworthy, the co-owners of the condominium bear no responsibility for the respondent’s hoarding, and they should not have to bear the whole of the cost of compelling compliance. Although the respondent argued that blameworthy conduct was required to award costs against a non-compliant unit owner, she failed to direct me to any authority in support of this proposition. In my view, costs on a partial indemnity scale are appropriate.

[20] With respect to the quantum of the costs, I note that subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, the complexity and importance of the issues, and whether any step in the proceeding was improper or unnecessary. Overall, costs must be fair and reasonable: Boucher v. Public Accountants’ Council for the Province of Ontario, 2004 CanLII 14579 (Ont. C.A.), 71 O.R. (3d) 291, at paras. 4 and 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.

[21] The applicant’s bill of costs discloses costs on a partial indemnity scale of $37,407.79. In my view, having regard to the principles in r. 57.01, partial indemnity costs on this level are not fair and reasonable, nor within the reasonable expectations of the respondent. For example, I note:

a. The costs claimed include costs for translation, which the applicant agreed at the hearing should not be claimed from the respondent;

b. The costs include some element of duplication which occurred when the applicant retained new counsel part way through the proceedings;

c. The costs include costs of an attendance that had to be adjourned when no interpreter was present for the respondent;

d. The costs include costs of an attendance that had been automatically adjourned by the court in March 2020 due to the COVID-19 pandemic;

e. The costs include costs of a cross-examination that never took place;

f. The costs include the attendance of two lawyers for the applicant at certain steps, when the attendance of one lawyer would have sufficed.

[22] Having regard to these factors, I conclude that costs of $25,000 are fair and reasonable. The respondent shall pay $25,000, all inclusive, to the applicant within 30 days.

J.T. Akbarali J.

Date: November 23, 2021