Court File and Parties
COURT FILE NO.: 22-90281 DATE: 2023/06/20
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: CARLETON CONDOMINIUM CORPORATION NO. 11, Applicant -and- PAUL SPRAGUE and WILLIAM SPRAGUE, Respondents
BEFORE: Madam Justice S. Corthorn
COUNSEL: Emily Deng, Counsel for the applicant Paul Sprague is self-represented William Sprague is self-represented
HEARD: June 12, 2023 (By videoconference)
Endorsement on Motion
Introduction
[1] The applicant corporation (“CCC No. 11”) is a condominium corporation comprised of 228 residential units. The units are located on Arrowsmith Drive, in the City of Ottawa. The respondents are father and son. The father, Paul Sprague, is the owner of unit 404C (“the Unit”). The son, William Sprague, resides in the Unit as his father’s tenant.
[2] On several occasions in 2021, 2022, and 2023, William engaged in behaviour which CCC No. 11 alleges is in breach of the Condominium Act, 1998, S.O. 1998, c. 19, and of the Declaration, By-Laws, and Rules of CCC No. 11 (“the governing documents”).
[3] The application first came before the court in writing. The record originally filed included a consent, signed by counsel for CCC No. 11 and by the individual respondents. A draft order was attached as schedule “A” to the consent. The consent and draft order reflected an agreement between the parties for a resolution of the proceeding. For several reasons, it was not possible for the court to grant the relief set out in the draft order.
[4] In the court’s endorsement dated February 27, 2023, I addressed procedural deficiencies related to several matters. Those matters included deficiencies regarding service of the application record on the respondents.
[5] I also addressed concerns about William Sprague’s capacity as a litigant. The concerns about William’s capacity arose because of the references in the materials to mental health issues from which William suffers. Last, there were problems with the terms of the draft order. Several terms of the draft order were overly broad and lacking in precision.
[6] I ordered that the application proceed to an oral hearing. The hearing proceeded by videoconference on June 12, 2023.
The Evidence
[7] In support of the relief it seeks, CCC No. 11 relies on the October 4, 2022 affidavit of its Property Manager, Noah Johnston (“the Johnston affidavit”). In addition, CCC No. 11 relies on two affidavits from its Assistant Property Manager, Christopher Adams. Those affidavits are dated May 31 and June 8, 2023 (“the May affidavit” and “the June affidavit”, respectively).
[8] The June affidavit was prepared in response to a two-paged, typed document sent by Paul Sprague to the applicant’s counsel on June 6, 2023. That document is titled, “Notes regarding Court Case” (“Paul’s notes”). The June affidavit includes only three substantive paragraphs. In those paragraphs, Mr. Adams responds specifically to points made in Paul’s notes on the following subjects: (a) items thrown by William from the balcony of the Unit to the ground, (b) whether William made any request for access to the building prior to breaking the lobby window on May 26, 2023, and (c) access to the building “outside of business hours”.
[9] On the consent of the parties, (a) the respondents were given leave to file Paul’s notes as an exhibit on the return of the application; (b) the contents of the notes are treated as if they were in the form of an affidavit from Paul, and (c) CCC No. 11 was granted leave to rely on the June affidavit.
[10] Before turning to the substantive issues, I will address the issue of William’s capacity.
William Sprague’s Capacity
[11] Paul’s notes provide evidence as to William’s mental health. At age 6, William was diagnosed with attention deficit hyperactivity disorder (ADHD). As an example of the impact that ADHD has on William, Paul explains that William might not complete all tasks for which he is given instructions. Other examples of that impact include William’s repeated loss of the key to the main door of the condominium building and destruction of several cell phones. Paul describes the use of a cell phone as an alternate means (to the use of a key) to gain entrance to the condominium building.
[12] William also suffers from depression and drug addiction. The specifics of William’s drug addiction are not provided. The level of addiction is such that William has attempted to attend an in-patient rehabilitation program – most recently in September 2022 at a facility in Brantford, Ontario.
[13] There is insufficient evidence before the court to support a conclusion that William is a person under disability who requires a litigation guardian.
[14] I was able to observe William throughout the hearing. He remained on camera, responded to my questions, and was respectful of the process. It appears, however, that William defaulted to making no submissions and was prepared to rely on Paul’s submissions.
[15] I remain concerned as to whether William is a “person under disability” within the meaning of rr. 1.02(1) and 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I remind the parties that r. 1.03(1) defines “disability” to include where a person is “mentally incapable within the meaning of s. 6 or 45 of the Substitute Decisions Act, 1992, in respect of an issue in the proceeding, whether the person has a guardian or not”.
[16] Rule 7 addresses how parties under disability are to be represented in proceedings commenced by or against them. Rule 7.01(1) provides, “Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.”
[17] In certain situations, a guardian of property or an attorney under a power of attorney is required to act as litigation guardian for the party under disability: see r. 7.03(2.1). If no one steps forward with a motion for an order appointing them as the litigation guardian for the defendant, then the plaintiff or applicant must bring a motion for the appointment of a litigation guardian for the defendant or respondent: r. 7.03(5). The plaintiff or applicant is required to bring that motion after serving the originating process and before taking any further step in the proceeding: r. 7.03(5).
[18] There is no evidence as to whether William has an attorney for property and/or personal care. Nor is there any evidence as to whether a guardian of property and/or personal care has been appointed for William. His status as a tenant in the Unit may relate to both his property (payment of rent or any other Unit-related expenses) and his person (shelter).
[19] It would be neither cost-effective nor efficient to delay determination of the application pending additional evidence being filed regarding William’s capacity, an assessment of William’s capacity, and, if required, a motion for the appointment of a litigation guardian. I am satisfied that both as William’s father and the unit-owner, Paul has been taking and continues to take steps in William’s best interests to address concerns raised over time by CCC No. 11.
[20] The determination of this application does not hinge on William’s capacity; it hinges on consideration of William’s historical behaviour, the notion of communal living in a condominium setting, and an assessment of the relief to which CCC No. 11 is entitled.
[21] In both its materials and the oral submissions of its counsel, CCC No. 11 makes it clear that it intends to rely on the order made in this proceeding – specifically any breaches of the order – in support of a further proceeding in which the relief requested may include William’s eviction from the Unit. Such a proceeding would, once again, relate to William’s person (shelter) and potentially to his property (i.e., including personal assets in the Unit). Given my familiarity with this matter, I shall remain seized of the matter and any related proceeding. Unless otherwise ordered by the court, any matter involving these same parties shall proceed before me.
[22] Both CCC No. 11 and the respondents will want to consider how William’s capacity is to be addressed for the purpose of any subsequent proceedings.
The Issues
[23] The issues to be determined are as follows:
- Have the respondents breached the Condominium Act and/or the terms of the governing documents of CCC No. 11?
- If the answer to Issue No. 1 is “yes”, to what relief is CCC No. 11 entitled?
Issue No. 1 – Have the respondents breached the Condominium Act and/or the terms of the governing documents of CCC No. 11?
a) The Law
[24] CCC No. 11 relies on ss. 117 and 119 of the Condominium Act as the basis upon which to measure the respondents’ conduct:
Prohibited conditions and activities
117 (1) No person shall, through an act or omission, cause a condition to exist or an activity to take place in a unit, the common elements or the assets, if any, of the corporation if the condition or the activity, as the case may be, is likely to damage the property or the assets or to cause an injury or an illness to an individual.
(2) No person shall carry on an activity or permit an activity to be carried on in a unit, the common elements or the assets, if any, of the corporation if the activity results in the creation of or continuation of,
(a) any unreasonable noise that is a nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation; or
(b) any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation.
Compliance with Act
119 (1) A corporation, the directors, officers and employees of a corporation, a declarant, the lessor of a leasehold condominium corporation, an owner, an occupier of a unit and a person having an encumbrance against a unit and its appurtenant common interest shall comply with this Act, the declaration, the by-laws and the rules.
Responsibility for occupier
(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.
Enforcing compliance
(3) A corporation, an owner and every person having a registered mortgage against a unit and its appurtenant common interest have the right to require that a person who is required to comply with this Act, the declaration, the by-laws and the rules shall do so.
[25] CCC No. 11 relies specifically on s. 119(2) of the Condominium Act regarding the relationship between Paul as the unit-owner and William as the occupier of the Unit.
b) Evidence and Analysis
[26] The factum delivered on behalf of CCC No. 11 includes a chart summarizing William’s behaviour in 2021, 2022, and 2023 which CCC No. 11 alleges does not comply with the governing documents. The chart identifies 23 separate incidents of non-compliant behaviour commencing in the winter of 2021 and ending on May 26, 2023. By using the word “ending”, I do not mean to imply that there has, since May 26, 2023, been no further non-compliant behaviour. The evidence simply does not go beyond that date.
[27] The types of behaviour described in the supporting affidavits and summarized in the chart include the following behaviours:
- Smoking on CCC No. 11’s property;
- Using illegal drugs on CCC No. 11’s property;
- Damaging the Unit and/or the common elements;
- Throwing items including garbage and/or debris over the Unit’s balcony;
- Theft of other residents’ and/or CCC No. 11’s property; and
- Defecating on CCC No. 11’s common elements.
[28] The respondents do not dispute that William engaged in the behaviour described in the supporting affidavits and summarized in the chart. In his notes and submissions, Paul explained the financial and mental health challenges that William faces, William’s thought processes at times, and why William chose to behave as he did on certain occasions.
[29] For example, CCC No. 11 received a complaint about William’s misuse of the common elements. That complaint arose because of William’s use of the building’s laundry room as a place to keep his cats while the Unit was being fumigated for pest control. As Paul explained, William did not have the financial means to take his cats to another location. Without any other choice, William concluded that putting the cats in the laundry room was the best option.
[30] To his credit, Paul did not offer explanations as an “excuse” for William’s behaviour. I accept Paul’s submissions that it is very challenging for Paul to both (a) provide a safe environment in which William can reside, and (b) fulfill his obligations as a unit-owner. For example, in the fall of 2022, when William was attending the in-patient rehab program in Brantford, Paul hired a firm to clean the Unit, all furniture that could be infested by cockroaches was removed from the Unit, old appliances were removed, new appliances were purchased and installed, and additional spraying for cockroaches was done. Paul submitted, and CCC No. 11 does not dispute, that, to date, Paul has reimbursed CCC No. 11 in excess of $12,000 for expenses incurred by CCC No. 11 as a result of William’s behaviour.
[31] Paul’s efforts to provide William with a safe and comfortable place to live are commendable. They are the efforts of a loving, devoted, and caring parent. Paul’s efforts to respond to CCC No. 11’s concerns and his reimbursement of expenses incurred because of William’s behaviour are also commendable.
[32] Unfortunately for Paul and William, it is not a matter of measuring Paul’s efforts against William’s behaviour in the hope that the former detracts from or eliminates the latter. CCC No. 11 has established, on a balance of probabilities, that William’s behaviour has repeatedly, and for more than two years, breached ss. 117 and 119 of the Condominium Act. To what relief is CCC No. 2 entitled at this time?
Issue No. 2 – If the answer to Issue No. 1 is “yes”, to what relief is CCC No. 11 entitled?
[33] The relief sought by CCC No. 11 is set out in the amended notice of application, dated May 31, 2023, and repeated in the factum. The relief sought was reviewed with the parties at the conclusion of the hearing. The relief sought is, for the most part, reasonable and in keeping with CCC No. 11’s rights under the Condominium Act and the governing documents. The substantive relief set out in the disposition section of this ruling is essentially in keeping with the relief sought.
[34] I will address two elements of the relief granted – the request for leave to bring a further motion and CCC No. 11’s reliance on an amended notice of application which has not been formally amended.
a) Leave to Bring a Further Motion
[35] CCC No. 11 asks for leave to bring a motion, within this proceeding, in the event the respondents fail to comply with the order made. On the motion, CCC No. 11 would seek an order for William’s eviction from the Unit.
[36] In support of its request for leave to bring such a motion, CCC No. 11 relies on s. 134 of the Condominium Act. Section 134 addresses compliance orders and the process to be followed by an owner, an occupier, a condominium corporation, and others in applying for a compliance order. Section 134(1) provides how an application for a compliance order may be made. Subject to the requirement to participate in mediation or arbitration (s. 132),
… 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 to 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.
[37] If the applicant seeks an order requiring an occupier of an owner’s unit to vacate the premises permanently, then reasonable notice must be given to the unit owner. Section 134(4) sets parameters for the termination of a lease as a form of relief granted on an application made under s. 134(1). Termination of a lease falls within the scope of s. 134(3)(c) – in terms of the type of relief which may be granted. Under that subsection, the court has the discretion to grant “such other relief as is fair and equitable in the circumstances.”
[38] Nothing in s. 134 permits an applicant to bring a motion once the application made under s. 134 is determined. If the application were determined, it would be necessary for CCC No. 11 to bring a separate application for further relief, including an order evicting William. In support of such further application, CCC No. 11 would be entitled to rely on the order (if made) determining this application plus any further breaches of ss. 117 and 119 of the Condominium Act and/or of the governing documents, and other grounds which may be available to it. The key point is that a separate application would be required.
[39] CCC No. 11 relies on the decision of Mew J. in Frontenac Condominium Corporation No. 6 v. McCauley, 2021 ONSC 8181 (“FCC No. 6”), as support for its position that an eviction motion may be brought in the proceeding now before the court (i.e., that a separate application is not required).
[40] FCC No. 6 brought an application for relief related to the conduct of a unit-owner’s tenant. The respondent, Marilyn McCauley, was the unit owner. Within the context of the application, FCC No. 6 brought a motion for a cease-and-desist order – namely that the unit occupant cease her problematic behaviour.
[41] At para. 11, Mew J. described the motion as “the first step towards terminating the lease between Ms. McCauley and [the unit occupant]” in the event the occupant continued to engage in her problematic behaviour.
[42] In addition to the cease-and-desist order, FCC No. 6 sought leave to bring a further motion, pursuant to s. 134(4) for an order evicting the occupant: see para. 12. The respondent unit-owner did not oppose the relief sought. The relief requested was granted. In addition, the balance of the application was adjourned.
[43] CCC No. 11 took a different approach than did FCC No. 6. CCC No. 11 opted not to include William’s eviction as relief sought on the application. In addition, CCC No. 11 chose to proceed to a hearing of the application without first bringing a motion for a cease-and-desist order. In her submissions, counsel for CCC No. 11 asked the court to consider efficiency and cost-effectiveness. She highlighted the additional expense to CCC No. 11 in the event it is required to commence a separate application. Counsel also highlighted that expense, if incurred, is one that CCC No. 11 would ultimately seek to pass on to the respondents.
[44] I agree with counsel’s submissions regarding approaching this proceeding in an efficient and cost-effective manner. For that reason, I convert what was originally a hearing of an application to the hearing of a motion, grant CCC No. 11 leave to bring a further motion in the event of a breach of the terms of the order (and/or the Condominium Act and/or the governing documents), and adjourn the balance of the application. It therefore remains open to CCC No. 11 to seek additional relief in the existing proceeding.
[45] The conversion of the hearing from that of an application to one of a motion does not in any way prejudice the respondents. The notice of application, which was served on the respondents some months ago, includes a request for an order terminating William’s tenancy and prohibiting him from residing anywhere on the property of CCC No. 11: see para. 1(e) of the notice of application. In the amended notice of application recently served on the respondents, CCC No. 11 does not include a request for that same relief. CCC No. 11 does, however, include a request for leave to bring a motion for an order for William’s eviction: see para. 1(s) of the amended notice of application.
[46] It is apparent from both the notice of application and the amended notice of application that CCC No. 11 intends to take additional steps towards terminating the lease between William and his father in the event William continues to engage in problematic behaviour.
[47] The conversion of the hearing of the application to a hearing of a motion reduces the potential costs of the proceeding – costs for which one or both of the respondents may ultimately be responsible.
b) The Amended Notice of Application
[48] The supplementary application record dated June 1, 2023 includes a document titled “amended notice of application”. The date of the notice of application (September 29, 2022) is struck through and replaced with May 31, 2023. The latter date is underlined. Numerous paragraphs in the amended notice of application are struck through and purportedly replaced with paragraphs whose contents are underlined.
[49] The court is not aware of any motion having been brought for leave to amend the notice of application. Such a motion was required for CCC No. 11 to reply on an amended originating process. Therefore, I treat the amended notice of application as a notice of motion.
[50] If CCC No. 11 ultimately proceeds with a hearing of the application it is required to include the notice of application, in the form as originally issued, in the application record unless it brings a motion for and obtains leave to amend the originating process.
Disposition
[51] For the reasons given, I make an order in accordance with the draft order included as Schedule ‘A’. I dispense with the requirement for CCC No. 11 to have the draft order approved as to form and content. CCC No. 11 shall be entitled to have the order issued and entered without securing of the respondents to the form and content of the order.
[52] CCC No. 11 was successful on the motion and is therefore presumptively entitled to its costs of the motion. In addition, CCC No. 11 relies on the contents of the governing documents in support of its claim for costs. Unless the parties are able to resolve the issue of costs, written submissions shall be made in accordance with the following requirements and timeline:
a) The parties’ submissions shall be limited to a maximum of four pages (excluding the bill of costs);
b) Written submissions shall comply with the format prescribed by r. 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;
c) Copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with r. 4 of the Rules with respect to font size;
d) Submissions, including copies of case law or other authorities, shall be filed with the court electronically in accordance with the most recent notice to the profession in that regard;
e) Delivery of the submissions is, for the purpose of costs submissions, defined to mean serving, filing, and uploading to Caselines. CCC No. 11’s submissions shall include a bill of costs restricted to the hearing of the motion; and
f) The submissions shall be delivered in accordance with the following schedule:
- CCC No. 11 shall deliver their submissions no later than 4:00 p.m. on Friday, June 30, 2023;
- The respondents shall deliver their responding submissions no later than 4:00 p.m. on Friday, July 14, 2023; and
- CCC No. 11 shall deliver their reply submissions no later than 4:00 p.m. on Friday, July 21, 2023.
[53] I emphasize that the costs to which CCC No. 11 is entitled at this stage are the costs of the motion heard on June 12, 2023. In the context of the motion, CCC No. 11 is not entitled to costs associated with the application in writing, costs associated with the drafting, issuance, and service of the originating process, or other costs that are properly addressed in the context of the application proper.
Madam Justice Sylvia Corthorn Date: June 20, 2023
SCHEDULE ‘A’
Court File No.: CV-22-90281
ONTARIO SUPERIOR COURT OF JUSTICE
Before the Honourable ) Monday, the 12th day Madam Justice S. Corthorn ) of June, 2023
B E T W E E N :
CARLETON CONDOMINIUM CORPORATION NO. 11 Applicant
-and-
PAUL SPRAGUE AND WILLIAM SPRAGUE Respondents
ORDER
THIS MOTION, made by the applicant, Carleton Condominium Corporation No. 11 (“CCC No. 11”) for an order for compliance, pursuant to section 134 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), and other relief, was heard this day by videoconference at the Courthouse, 161 Elgin Street, Ottawa, Ontario,
ON READING the amended notice of application dated May 31, 2023, the affidavit of Noah Johnston sworn on October 4, 2022, the affidavits of Christopher Adams sworn on May 31, 2023 and June 8, 2023, and the notes of Paul Sprague (Exhibit 1), and on hearing the submissions of counsel for CCC No. 11 and of Paul Sprague, William Sprague appearing and choosing not to deliver any submissions,
THIS COURT ORDERS that the amended notice of application shall be treated as a notice of motion and the hearing on June 12, 2023, converted from the hearing of an application to the hearing of a motion.
THIS COURT ORDERS that the respondents shall comply with ss. 117 and 119 of the Condominium Act, 1998, S.O. 1998, c 19 (the “Act”), Rules 4, 7, 8, 9, 12, and 13 of the CCC No. 11’s Rules and Regulations, and CCC No. 11’s Rule respecting smoking (dated May 16, 2018).
THIS COURT ORDERS that CCC No. 11 shall be granted immediate access to the respondents’ condominium unit, Unit 404C – 2041 Arrowsmith Drive (the “Unit”), to carry out the necessary repairs therein to reinstate the Unit to its standard form in accordance with the CCC No. 11 By-Law No. 4 – Standard Unit By-Law.
THIS COURT ORDERS that the respondents shall pay to the applicant reasonable costs of any repairs carried out under paragraph 3, above.
THIS COURT ORDERS that costs payable pursuant to paragraphs 3 and 4, above, shall be paid by the respondents to CCC No. 11 within 30 days of the receipt of receive an itemized list of the costs and expenses and the supporting invoices for the completion of work under paragraph 3, above.
THIS COURT ORDERS that in the event of default of payment of the costs referred to in paragraphs 4 and 5, above, CCC No. 11 shall be entitled to add said costs to the common expenses of the Unit and to recover said costs as such, including, if necessary, by way of Condominium Lien against the Unit.
THIS COURT ORDERS that the respondents shall cease and desist engaging in conduct which contravenes sections 117 and 119 of the Act, and/or CCC No. 11’s Rules and Regulations as noted in paragraph 1, including that the respondents shall not permit a condition to exist and shall not carry on an activity in a unit or on the common elements, if the condition or the activity is likely to damage the property or cause injury to an individual, including but not limited to: a) Smoking on CCC No. 11’s property; b) Using illegal drugs on CCC No. 11’s property; c) Damaging the Unit and/or the common elements; d) Throwing items including garbage and/or debris over the Unit’s balcony; e) Improper and unauthorized disposal of garbage on CCC NO. 11’s property; f) Theft of other residents’ and/or CCC No. 11’s property; and g) Defecating on CCC No. 11’s common elements.
THIS COURT ORDERS that CCC No. 11 shall be entitled to direct the Sheriff, or any law enforcement officer in the Province of Ontario, to do all things reasonably necessary to be done to ensure that effect is given to paragraph 2 of this order and for the respondents to keep the peace.
THIS COURT ORDERS that the respondents shall pay to CCC No. 11 all reasonable costs and expenses incurred to June 12, 2023, by CCC No. 11, resulting from the respondents’ failure to comply with the Act and/or with CCC No. 11’s governing documents as noted above, including, but not restricted to, costs for fumigation and repair.
THIS COURT ORDERS that the costs and expenses referred to in paragraph 9, above, shall be paid by the respondents to CCC No. 11 within 30 days of the date on which the respondents receive an itemized list of the costs and expenses and the supporting invoices for same.
THIS COURT ORDERS that in the event of default of payment of the costs and expenses pursuant to paragraphs 9 and 10, above, CCC No. 11 shall be entitled to add the costs and expenses to the common expenses of the Unit and to recover said costs as such, including, if necessary, by way of Condominium Lien against the Unit.
THIS COURT ORDERS that in the event the respondents breach the terms of this order, CCC No. 11 is granted leave to bring a motion, in accordance with s. 134(4) of the Act, for an order for the eviction of William Sprague from the Unit.
CARLETON CONDOMINIUM CORPORATION NO. 11 -and- PAUL SPRAGUE AND WILLIAM SPRAGUE Applicant Respondents
Court File No: CV-22-000902810000
ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT THE CITY OF OTTAWA
ORDER
DAVIDSON HOULE ALLEN LLP CONDOMINIUM LAW 410 Laurier Ave West, Suite 800 Ottawa, ON K1R 1B7 Nancy Houle/Emily Deng LSO# 45205U / 76559W Tel: (613) 231-8222/ (613) 231-8327 Fax: (613) 788-2359 Email: nancy@davidsoncondolaw.ca/ emily@davidsoncondolaw.ca Lawyers for the Applicant, Carleton Condominium Corporation No. 11