Court File and Parties
BARRIE COURT FILE NO.: CV-22-149 DATE: 20230324 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SIMCOE CONDOMINIUM CORPORATION NO. 133 Applicant – and – PAUL SHARD, SHERYL ELIZABETH SHARD, SARAH YARMUS, THOMAS GEORGE CAVE, IRENE LOUISE CAVE, HERMENGARDA LEAL, EDUARDO LEAL, NANCY MARY MASON, ROMAN MASEK, TATANA MASEK, RONALD KING HOPPER, ERWIN JOHN KURTZ, DENICE ELLAINE KURTZ and JUDITH ANN MCSTRAVICK Respondents
Counsel: A. Casalinuovo for the Applicant Moving Party B. Gasee for the Respondents
HEARD: March 21, 2023 (via Zoom)
Endorsement on Urgent Motion
McCarthy J.
[1] The Applicant Simcoe Condominium Corporation No. 133 (“SCC 133”) brings a motion on an urgent basis for various heads of relief. SCC 133 is a condominium corporation created pursuant to the Condominium Act, 1998, S.O. 1998, c. 19 (“the Act”), which controls, manages, and administers a condominium development comprised of 22 residential townhouse units and appurtenant common elements, located at 24 Laguna Parkway in Brechin, Ontario (“the complex”).
[2] While SCC 133 seeks, inter alia, a declaration that the Respondents to this motion (the “remaining respondents”) are in contempt of a court order, its principal request is that said order dated September 27, 2022 (“the 1st order”) be complied with and that such compliance be mandated by this court.
[3] For their part, the remaining respondents, all owners of residential units in the complex, claim to be prepared to abide by the 1st order, but assert that the scope of the 1st order, or more precisely the scope of the work ordered to be carried out under the 1st order, should not encompass the removal of any attic hatch ladders found in the units.
[4] The 1st order sought to capture the agreement the parties had arrived at without the adjudication of the court on or about September 12, 2022. The 1st order was meant to address an Order to Remedy Unsafe Building issued by the Township of Ramara issued on February 10, 2022 (“the municipal work order”) and to ensure the implementation of the attic restoration project envisaged by the invitation to bid (“invitation to bid”) prepared by project consultants Brown & Beattie on October 8, 2021. In pursuit of the mandate set out in the 1st order SCC 133 entered into a contract (“the contract”) for the performance of the work with Bowie Contracting Ltd. (“the contractor”) dated February 15, 2023, with substantial performance to take place by May 12, 2023. The contract price was approximately $143,000.00.
[5] The 1st order was obtained on consent. The 1st order has not been appealed. There is no motion before the court to vary it or set it aside.
[6] The 1st order contains the following key paragraphs:
THIS COURT ORDERS that the remaining respondents shall cooperate with the Applicant, SCC 133, its property management and/or SCC 133’s agents and contractors to permit SCC 133 to inspect and make any required repairs to the common element attic spaces appurtenant to the Remaining Respondents’ respective units […].
THIS COURT ORDERS that all work to be done by SCC 133 to the Attics shall be done in accordance with the building permits and building permit drawings obtained by SCC 133 for such work, and with the scope of work set out in the Invitation to Bid prepared by Brown & Beattie Ltd. and dated October 8, 2021.
THIS COURT ORDERS that following the completion of the work contemplated herein, the Remaining Respondents, are permitted to submit requests pursuant to section 98 of the Condominium Act, 1998 (“the Act”) for SCC 133’s consideration. SCC 133 shall agree to review any requests pursuant to Section 98 of the Act, in good faith; but any such decision is in the sole discretion of SCC 133 and there is no representation or promise that SCC 133 will approve a request.
[7] There have been problems with the implementation of the court order. Specifically, the engineer and contractor retained to complete the scope of work have been either denied access to the remaining respondents’ units or such access has been made conditional on the engineer and contractor agreeing not to attempt to remove the attic hatch ladders in some of the units. There is evidence that SCC 133, the consultant’s engineering technician, and the contractors have contemplated enlisting the assistance of security guards and locksmiths to access units; some of the remaining respondents have threatened to involve the police; there have been accusations that SCC 133 is taking “unilateral arbitrary steps”; there has been much involvement of and exchange of correspondence between counsel on both sides of the dispute which seems to have done nothing to diffuse the stand-off; the situation has escalated to the point where nasty words and even threats have been levelled by one unit owner at the persons attempting to access those units.
[8] As I understand the core of the remaining respondents’ submissions, they object to the removal of the attic hatch ladders in their respective units. Their reasoning is perplexing; it is also completely flawed. Perplexing because they insist on referring to the attic hatch ladders as “staircases” as if that label would lend the attic ladders a quality, importance, and purpose which would differentiate them and leave them omitted from the scope of work envisaged. Flawed because the evidence overwhelmingly establishes that alterations to the respective attic spaces, namely the removal of portions of the trusses to accommodate the attic hatch ladders, have greatly compromised the structural integrity of the building by reducing the load carrying capacity of the roof trusses. This is the underlying reason why the building permits call for the attics to be restored. To suggest that the attic hatch ladders should somehow be spared from the scope of the remedial work because they drop down into the units themselves or because they are not referenced on a unit-by-unit basis in some of the documents is simply untenable.
[9] That suggestion completely overlooks the fact that the obvious reason why the scope of work report refers to the attic ladder in unit #20 only is because the consultant was not afforded access to the other units. It is a fair inference to draw that all the attic ladders pose a threat to the structural integrity of the roof. There is not a shred of evidence to the contrary.
[10] The remaining respondents’ position ignores the incontrovertible evidence that the attic ladders were not part of the original construction of SCC 133 and would therefore be caught by the stated purpose of the work, which is to return the attics to their original design condition in order to safeguard the integrity of the roof of the complex. There is uncontradicted evidence that the attic hatch ladders compromise the safety of the common element attics since their respective installation would have involved removing portions of the existing truss system.
[11] The evidence makes it clear that the attic space above the third floor of the complex’s units is common element property. Moreover, in paragraph 3 of the 1st order, the attic spaces in question are referred to as common element property of SCC 133. It follows that the act of cutting a hole into same to install the attic hatch ladders constituted an alteration not authorized or approved by SCC 133. Indeed, pursuant to s. 98 of the Act, all of SCC 133’s unit owners are prohibited from making alterations, additions, or improvements to any common element property unless same were approved by SCC 133.
[12] SCC 133 is deemed to be the occupier of common element spaces for liability purposes pursuant to s. 26 of the Act. It therefore has both a practical and a legal obligation to manage the common elements and this includes the attic spaces in all the units.
[13] Mr. Trudel, the engineering technician in charge of the project has made it clear that the attic hatch ladders must be removed and that the ceiling, insulation, trusses, and attic flooring must be restored to their original condition; otherwise, the township will not deem SCC 133 compliant with the municipal work orders and will not close the permits. Mr. Trudel has also stated that the repairs to the roof trusses and restoration of the attics to their original condition as set out in the description drawings should be completed without delay.
[14] There is little doubt that until this impasse is ended and the work is allowed to proceed, the attics will remain in an unsafe condition. Further delay may also result in the possible cancellation of the contract. Already SCC 133 has incurred increased costs: a delay charge of $700 per day levied by the contractor since March 1, 2023. Meanwhile, the municipal work order remains outstanding.
[15] I can give no weight to the affidavit of unit owner Erwin Kurtz. His assertion that the removal of the “drop-down staircases, per se, is not required, not ordered, not urgent and not a safety issue” is contrary to the evidence that I accept, is not supported by any independent or expert evidence, is inconsistent with any fair or reasonable interpretation of the 1st order and would, if accepted, serve to frustrate and defeat the entire purpose and ultimate objective of the attic restoration project.
[16] I bear in mind that the remaining respondents provided their consent to the wording of the 1st order. I cannot accept their suggested interpretation of it. Orders need to be interpreted in the context in which they are granted: here the 1st order was made during litigation which sought to require the remaining respondents to grant SCC 133 access to their units to complete a scope of work which included the restoration of the common element attics to their original condition. The impetus for the work was to address a structural safety issue and to seek satisfaction of a municipal work order. To exclude the attic ladders from the remedial work required would not only grossly distort the intention of the 1st order but render it almost pointless.
[17] I would stop short of making a finding of contempt by any of the remaining respondents. I choose to exercise restraint in that regard; I do, however, reserve to myself the right to reconsider the issue again on subsequent return dates.
[18] In exercising that restraint, I would remind all interested parties with the utmost gravity that court orders are not made as suggestions or discussion pieces. They must be followed and respected.
[19] When they are not, all manner of chaos breaks loose. The administration of justice falls into disrepute. Persons affected by ignored or disrespected orders lose faith in the justice system.
[20] Courts make orders based upon evidence, factual findings, and the law. Subject to appeal or variation made upon motion, such adjudicative orders are binding. They must be complied with and obeyed by the parties to whom they apply.
[21] Often, as here, the parties to litigation will submit for the court’s consideration a proposed draft order based upon minutes of settlement or an agreement reached between them. A judge’s approval of, and signature upon, such a document converts it into a consent order. A consent order is no less binding than an adjudicative order. It must be complied with and obeyed by the parties to whom it applies.
[22] In addition to the right to clarify the meaning of its orders, the court also retains the inherent jurisdiction to oversee and ensure the implementation of its orders and to generally control the process before it. The court also has the inherent jurisdiction to mandate compliance with its orders.
[23] For the reasons set out above, this is a clear case for doing so.
[24] That being the case, I make the following order:
i. The issue of whether the remaining respondents are in contempt of the 1st order is adjourned to the next return date of this or any other motion on this matter.
ii. The next return date shall be in person at Barrie on a date to be assigned by the trial coordinator. All persons against whom a finding of contempt is sought must attend before the court on the assigned date at the assigned time. The motions themselves are returnable on 4 days’ notice by any interested party.
iii. All parties must comply with the 1st order. Failure to do so will result in a renewed consideration of contempt and accompanying penalties and/or any remedies available under the Condominium Act or its regulations.
iv. The scope of work shall include the removal of any attic hatch ladders in the respective units of SCC 133. For greater specificity, SCC 133 and/or its contractors are empowered to remove the attic hatch ladders in any unit in order to carry out the work described in paragraphs 3 and 4 of the 1st order.
v. SCC 133 shall have the right, in its absolute discretion, to enlist the assistance of security and a locksmith to gain entry to the respective units to give effect to the court order, and to pursue the remedial tasks described in the 1st order and in paragraph iv above.
vi. The twin issues of costs and the responsibility for additional expenses are adjourned to the next return date.
vii. I shall remain seized of all matters pertaining to the issues in question.
viii. The parties may seek a case conference before me in advance of the return date of the motions. That conference may proceed via teleconference or virtual hearing.
ix. To ensure that all of the remaining respondents are cognizant of these reasons and the order contained herein, counsel for the remaining respondents shall ensure that each of them receives a copy of this endorsement.
[25] There shall be an order to go in accordance with the foregoing.
McCarthy J. Released: March 24, 2023