COURT FILE NO.: CV-21-00660254-0000
DATE: 20221007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: )
MOHAMAD ABOU EL NAAJ and REEM ) lnderpreet Suri and Luis Hernandez,
JUBAIN ) Lawyers for the Applicant
Applicants )
-and- )
) Tim Gillibrand, Lawyer for the Respondent
) PEEL STANDARD CONDOMINIUM ) CORPORATION NO. 935 )
Respondent )
) HEARD: JULY 12, 2022
G.DOW, J.
REASONS FOR DECISION
[1] The applicants purchased unit 2005 in the respondent's condominium and began living there in or about July 2015. They seek relief as itemized in their "Second Supplementary Applicant Record," at paragraphs l(a) to(f) which I would summarize to be:
i) a declaration of and damages for oppression with regard to false allegations made against them as well as failing to hold a duly constituted owners meeting;
ii) a cease and desist order with regard to such conduct continuing; and
iii) call and hold an owners' meeting with agenda topics that were set out in a requisition dated November 17, 2020 with regard to the review and removal of the condominium directors, the property management corporation, the concierge's contract and condominium expenses.
Background
[2] Without summarizing all of the details and conflicts between the applicants and the respondent, as occupants of unit 2005, the applicants began to have difficulties with the condominium corporation representatives as early as March 2020. The applicant's son was riding a children's vehicle, without a helmet, on a tile floor which made noise at a level which was of concern to a security guard and also raised by the security guard. This resulted in a request on behalf of the respondent that it stop. Both sides allege the other was rude or aggressive in their manner.
[3] In May, 2020, there was a cooling issue in the applicants' unit which was not initially acknowledged. It seemed to be remedied but then reoccurred and took until July 10 to complete repairs. The applicants seeks reimbursement for $768 they spent attempting to determine and rectify the problem. Ultimately it was discovered the problem was an internal changeover valve which was assessed as a complex issue to determine. Again, both sides alleged uncooperative or aggressive behaviour on the part of the other.
[4] Disputes between the applicants and the respondent's representatives continued to escalate at the July, 2020 annual general meeting where Mr. El Naaj criticized the property manager, Mr. Saeed and urged that he be fired. Ms. Jubain, the co-applicant filed a complaint against Mr. Saeed with the Condominium Management Regulatory Authority of Ontario which issued its decision on January 7, 2021 not to take any further action (Exhibit 35, Affidavit of Mr. Saeed sworn July 30, 2021).
[5] In or about twelve requests for voluminous copies of invoices, inspection reports, contracts, and repair requests were made and not responded to in a manner satisfactory to the applicants. Issues arose with regard to the manner in which the applicants sought the support of other unit owners to remove the existing Board of Directors. They mailed out letters to the other unit owners on September 9, 2020 from a list provided to them by the respondent. Given concerns it was not accurate, on September 22, 2020, the applicants also went door to door seeking support. In addition they left letters at every unit door. The respondent's representatives received some complaints from other unit owners about this conduct. The respondent removed said letters from in and about unit owner doors as part of cleaning of the facility. This was followed by a notice to all residents reminding them door to door sales were not permitted.
[6] An issue arose with regard to compliance with the condominium corporation's rules regarding what may be placed on balconies, an exclusive use common element. There was concern and subsequent admission that indeed boxes were being stored on the applicants’ balcony. A letter dated July 27, 2020 from the property manager (Exhibit 24, Affidavit of Mr. El Naaj sworn June 16, 2021) requested compliance without, in my view, any objectionable or actionable wording or threat. Further, the respondent's response included taking photographs of the entire exterior of the building(s) to show that other units also had items on their balconies. This undermines the notice sent was of them being singled out.
[7] The boxes were likely part of the applicants’ business, "Count On Us", a beauty supply product operation. Like many businesses during the pandemic, it was disrupted. This led to concerns about improper garbage disposal and operating the business out of the applicants’ residential premises, something not permitted under condominium by-laws. Again, the July 28, 2020 letter from the property manager to the applicants (Exhibit 26 to the Affidavit of Mr. El Naaj sworn June 16, 2021) was, in my view, a "friendly reminder" and not worded in any kind of objectionable and actionable manner.
[8] Matters continued to escalate with the applicants obtaining counsel in 2020 and positions taken such as in the letter from applicants' counsel, dated September 21, 2020 (Exhibit 37 to the Affidavit of Mr. El Naaj sworn June 16, 2021) advising that the condominium corporation would not be permitted access to the applicants' unit (contrary to the Condominium Corporation By- laws) until certain demands were met. The incidents of conflict between the parties led to the applicants organizing an owner's meeting to remove the Condominium Board representatives in December, 2020. As this was during the height of the COVID pandemic, this required the condominium corporation to adapt to a process of live, not-in-person, voting. The voting did not proceed as only 67 voters were present (sufficient for a quorum to conduct a meeting) but less than the required 119 votes required to remove the Board representatives. As a result, the meeting was adjourned without discussing all agenda items.
[9] This led to Mr. El Naaj seeking to become a member of the Board at the 2021 annual general meeting held on October 6, 2021. As part of the process of nomination, Mr. El Naaj was required to complete a disclosure notice and a short biographical form. It also required disclosure of whether Mr. El Naaj was involved in litigation with the condominium corporation. An issue was taken with Mr. El Naaj's wording that "My spouse and I are engaged in litigation against the Corporation for, among other things, compliance, relief for the Board's and management's breaches of the Condominium Act, oppressive conduct towards us, and failure to properly call and hold a requisitioned meeting." The position of counsel for the Board was that this insufficiently detailed the extent of the litigation and Mr. El Naaj's nomination was rejected near the deadline to receive same.
Analysis
[1O] Both parties accept prior judicial comment that the oppression remedy is "broad and flexible" as well as equitable in nature. The applicants submitted it must establish not only a "breach of reasonable expectations" but also coercive and abusive behaviour. It relied on the often quoted reasons of the learned Justice B. O'Marra in Hakim v. Toronto Standard Condominium 1737, 2012 ONSC 404. I agree with the statement in that decision of "the legislative intent of the oppression remedy is to balance the interests of those claiming rights from the Corporation against the ability of management to conduct business in an efficient manner" (at paragraph 37). Further, "Section 135 protects legitimate expectations and not individual wish lists" (at paragraph 38).
[11] To that end, the conduct of the respondent, through its security guards, property manager and Board members, while less than ideal, did not amount to the level of misconduct required to meet the legal test of oppression. Regarding the cooling issue, the applicants were not ignored or treated in a harsh or inequitable manner. The matter was investigated and resolved within 47 days. I have concluded both sides behaved in a manner that could have been far better, particularly during the initial stages of a global pandemic where patience and understanding was required.
[12] Similarly, my review of the wording of the notices sent to the applicants regarding door- to-door sales and what was permitted to be stored on unit balconies were examples of how the respondent discharged the responsibility to protect the communal interest of the unit owners in balance with the private rights of each unit owner.
[13] The repeated request for "voluminous business records" may have been permissible but such request must be balanced with regard to the amount of time required to respond and the veracity of the request. I find the less than ideal response by the respondent did not amount to conduct that meets the legal definition of oppression or requires a remedy to be imposed.
[14] Regarding rejection of Mr. El Naaj's nomination to fill a vacancy on the Board, it appears the Board representatives obtained legal advice and direction and concluded it should not be accepted in the form as submitted. Obviously, discussion or guidance as to how the material could be modified to become acceptable would have been the preferred method of proceeding (even if it deferred Mr. El Naaj's nomination to the next available vacancy), but I find the conduct did not meet the legal test for oppression.
[15] I am reinforced in my conclusion by the oppression remedy being one in equity, and, as stated in 790668 Ontario Inc. v. D'Andrea Management Inc., 2017 ONCA 1091 (at paragraph 14) "when claims in equity are made, the court will not reward those who come with unclean hands." As stated, the conduct of both sides could and should have been better. This includes the conduct of the applicants which I find was aggressive, hostile and demanding.
Conclusion
[16] As I have concluded that the applicants have failed to meet their onus to demonstrate oppression, the application is dismissed. They are not entitled to recover the sought of amounts of $768.00 or $2,137.21.
Costs
[17] Both sides uploaded Costs Outlines as required by Rule 57.01(6). If successful, the applicants sought recovery of $41,928.48 for partial indemnity fees, plus HST and disbursements for a total of $57,235.98. The respondent sought to recover $51,154.75 for partial indemnity fees, plus HST and disbursements which totaled $58,391.81.
[18] I was not apprised of any offers to settle. Given its success and the similar amount incurred or sought by each side, I award the respondent its partial indemnity cost as sought in the total amount of $58,391.81 inclusive of fees, HST and disbursements. This is in accord with the objective to fix an amount that is fair and reasonable for the unsuccessful party to pay in the proceeding as described in Boucher et al v. Public Accountants Council for the Province of Ontario et al, 2004 CanLII 14579 (ON CA), [2004] OJ. No. 2634 at paragraph 26.
____________________________ Mr. Justice G. Dow
Released: October 7, 2022
COURT FILE NO.: CV-21-00660254-0000
DATE: 20221007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHAMAD ABOU EL NAAJ and REEM JUBAIN
Applicants
-and-
PEEL STANDARD CONDOMINIUM CORPORATION NO. 935
Respondent
REASONS FOR DECISION
Mr. Justice G. Dow
Released: October 7, 2022