COURT FILE NO.: CV-22-00680340-0000 DATE: 20230803

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GLOUCESTER GATE INC. Applicant – and – JOSEPH PARLATO Respondent

Counsel: Lazar Ilic, for the Applicant Joseph Parlato, In Person

HEARD: July 26, 2023

PAPAGEORGIOU J.

Overview

[1] The Applicant Gloucester Gate Inc. (the “Corporation”) is the manager of 30 Gloucester Street, Toronto, Ontario which consists of 250 Co-ownership interests. It alleges that one of the Co-owners, the Respondent Joseph Parlato, has denied it access to his unit for routine inspections of his smoke alarm.

[2] The draft Order submitted sought Orders: i) requiring Mr. Parlato to provide access to his unit to inspect his smoke alarm; ii) permitting the Corporation to serve Mr. Parlato by email with respect to all notices and documents; iii) declaring that Mr. Parlato has breached the Co-ownership agreement; iv) directing that Mr. Parlato comply with the Co-ownership agreement; iv) directing that he refrain from acting in a manner which would directly or indirectly hinder the ability of the Corporation to discharge its contractual and statutory obligations respecting smoke alarm testing; v) directing that he reimburse the Corporation in respect of any reasonable costs incurred in carrying out an inspection within 30 days of receipt of an invoice; vi) permitting the Corporation from moving without notice for further relief in the event of non-compliance with any Order of this court; and vii) requiring him to pay costs on a solicitor and client scale in an amount over $30,000.

[3] Mr. Parlato is a self-represented litigant.

[4] Although Mr. Parlato did not file any materials in response to this Application, he did attend and make submissions. He advised that he is 80 years old and currently lives in Buffalo. He described his many health issues and the fact that he has a care giver. I observed his caregiver with him during the zoom hearing and could see that he was sitting in a wheelchair.

[5] He submitted some unsworn materials. As these materials are not sworn, I am not taking them into account in terms of evidence they may purport to contain; however, they are relevant in terms of setting out Mr. Parlato’s position that he is agreeable to smoke alarm testing upon proper notice.

[6] There was also a flurry of submissions by both sides after the hearing, none of which were particularly helpful.

[7] It is difficult to understand how an important matter involving fire safety could have led to this expensive legal dispute. However, there is some history between these parties that may shed some light.

[8] I begin with the fact that Mr. Parlato has owned his unit for thirty years, and the difficulties have only been present in recent years.

[9] Mr. Parlato referenced a prior decision of Monahan J. in Gloucester v. Parlato, 2017 ONSC 4114. In that case, the Corporation entered Mr. Parlato’s unit to fix a leak. There was no suggestion in the decision that he failed to give consent or behaved in an unreasonable manner with respect to these repairs. He paid the Corporation’s counsel $1,965 for these repairs, but “under protest” because he did not believe he was responsible for the leak. Monahan J. concluded that for reasons not disclosed, the money was not transferred to the Corporation but held in counsel’s trust account. Thereafter, there were requests for authorization for the money to be released as well as additional charges in the amount of $886.50 sent to Mr. Parlato. Mr. Parlato paid this additional amount but continued to deny responsibility for plumbing repairs.

[10] Ultimately, the Corporation placed a lien Mr. Parlato’s unit, and brought an Application to dispose of his co-ownership interest to recover these funds—funds which he had already paid. Although Monahan J. agreed that Mr. Parlato was liable to pay $1,965, he held that nothing in Mr. Parlato’s words or conduct required that the money be held in trust by the Corporation’s counsel. Further, he held that Mr. Parlato was entitled to assume that his payment of $1,965 would resolve the matter and that he was not required to pay any additional amounts. He ordered that $886.50 be refunded to Mr. Parlato. Monahan J. concluded that success was divided and awarded no costs.

[11] The Corporation’s counsel argued that Monahan J.’s decision is not relevant. He says that unfortunately, the lawyer who received the funds had made a mistake in the prior case and failed to transfer the funds to the Corporation. It is difficult to understand how the entire Application could have proceeded and been argued without this error being discovered. It is clear from Monahan J.’s decision that Mr. Parlato had taken the position he had paid the funds and all the Corporation had to do was check.

[12] While I agree with the Corporation’s argument that the prior decision is not specifically relevant to the matter before me, it does provide context for this dispute which is a troubled overall relationship between these parties. While the Corporation seeks to create the narrative that Mr. Parlato is a difficult and intransigent man who simply refuses the comply with fire safety for no reason, it appears that the previous Application brought by the Corporation has led to an atmosphere of distrust.

[13] I add that the correspondence attached to the affidavit filed by the Corporation contains many allegations going both ways that have nothing to do with the testing of the smoke alarm. Apparently, Mr. Parlato is suing the Corporation in Small Claims Court while the Corporation takes the position that the variety of allegations made by him constitute harassment. I do not find the allegations in these letters relevant. Further, I am in no position to adjudicate these, nor are they admissible for the truth of their contents; this is an Application and the allegations contained in these letters are contradicted and highly contentions: See r. 39.10(5).

[14] Therefore, this decision is limited to the issue of whether Mr. Parlato has breached the Co-ownership agreement in respect of smoke alarm testing and if so what remedies I should grant.

Decision

[15] For the reasons that follow, I am granting only some of the Orders sought. I have determined that the Corporation has only established that Mr. Parlato failed to give access to his unit for routine smoke alarm testing on one occasion. On the other occasions alleged, the Corporation failed to give notice in accordance with the terms of the Co-ownership agreement; therefore, his failure to provide access cannot be considered a breach. Therefore, I am granting a specific permanent injunction that Mr. Parlato provide access for smoke alarm testing upon reasonable notice as I have specified.

[16] In the circumstances I see no reason for an Order permitting the Corporation to move ex parte if it concludes that he has breached any Court Order; notice is a fundamental tenet of the justice system. I also see no basis in the materials for a future permanent injunction that he refrain from acting in a manner which would directly or indirectly hinder the ability of the Corporation to discharge its contractual and statutory obligations respecting fire safety. As will be seen, before me Mr. Parlato readily agreed to allow the Corporation access to evaluate his smoke alarm upon sufficient notice. The Orders which I am making are sufficient to address the issues raised by the Corporation. I am not awarding costs because success was divided.

Analysis

[17] In arriving at this conclusion, I have considered the following issues:

Issue 1: Does the Corporation have an obligation to ensure compliance with fire safety laws?

[18] The Corporation has an obligation to ensure compliance with fire safety laws, which laws require annual inspection of smoke alarms.

[19] The requirement for annual inspections is set out in the following instruments:

• The Fire Code, O. Reg. 213/07 under the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 provides that a fire alarm system shall be inspected and tested in accordance with CAN/ULC-S536, “Inspection and Testing of Fire Alarm Systems”; these standards require annual testing of smoke alarms in a residential unit.
• Guideline OFMEM-TG-01-2019 ‘Maintenance of Smoke Alarms and Carbon Monoxide Alarms’ also provides that smoke alarms must be tested annually.

[20] There is a Co-ownership agreement registered on title to the property upon which 30 Gloucester is built. Thus, anyone who purchases a share in the property is bound by the Co-ownership agreement.

[21] The Co-ownership agreement gives the Corporation a contractual right to ensure compliance with all applicable laws, which laws include the Ontario Fire Code:

• Pursuant to Article 4.02G of the Co-ownership agreement a Co-owner must comply with the Ontario Fire Code.
• Pursuant to Article 5.01 the Corporation has the right to control and administer the common assets, and effect compliance by the Co-owners with the Co-ownership agreement.
• Pursuant to Article 5.01C the Corporation has an irrevocable power of attorney to insure the Co-owner’s interest and “to perform all obligations and enforce all rights of the Co-owners.” Article 4.02G further requires a Co-owner to comply with the Corporation’s property insurance provider.

[22] As a result, the Corporation obtained fire insurance and established its own Fire Safety Plan whereby it hires a qualified safety inspector, Electrical Works Ltd., to inspect each smoke alarm annually.

[23] Apart from the obvious safety issues, the Corporation has a legitimate concern that if a fire occurred in a unit and the Corporation had failed to comply with the above fire safety guidelines it could be liable for damages. It is also concerned that Mr. Parlato does not ordinarily reside at the unit and, as such, there is no one ordinarily there to assess any fire hazard issues or to monitor the smoke alarm.

Issue 2: Does the Corporation have the right to enter a co-owner’s unit to inspect smoke alarms?

[24] It is clear that the Corporation has the right to enter Mr. Parlato’s unit to ensure compliance with the provisions of the Fire Code (and related guidelines) as well as its fire insurance policy, after giving notice. This includes a right to inspect smoke alarms.

[25] Specifically, Article 5.26 of the Co-ownership agreement authorizes the Corporation to enter the unit for the purpose of “maintaining, repairing, supporting and keeping in order and good condition the Common Equipment” after giving the Co-owner prior written notice. Common Equipment is not defined. There was no specific evidence that the smoke alarm was Common Equipment or what other fire safety equipment the Corporation intended to inspect. I infer that the smoke alarm constitutes “Common Equipment”, since a fire in one unit could spread to others; thus the smoke alarm in each unit protects all the Common Elements. Further, the evidence shows that the Corporation replaced the battery in Mr. Parlato’s smoke alarm in 2019 and there is no evidence that it charged him for this.

[26] If I am wrong that Article 5.26 applies, then I refer to the power of attorney set out in Article 5.01C which gives the Corporation a power of attorney “to perform all obligations and enforce all rights of the Co-owners.” Since the Co-owners have an obligation to be compliant with fire safety laws, the power of attorney must include an implicit right to enter the unit for the purpose of the required annual smoke alarm inspection. Given the other provisions of the Co-ownership agreement which require notice before the Corporation enters a unit, it is implied here that the Corporation must give notice.

Issue 3: What kind of notice must be given before the Corporation may enter a unit?

[27] Article 5.26 does not set out the form of notice required. However, Article 10.06 specifies that any notices must be delivered either in person or that they must be sent by ordinary mail to the last address of the Co-owner set out on the register maintained by the Corporation. I note that there is no evidence at all as to what address is on this register, although the Corporation is aware that Mr. Parlato resides in Buffalo based upon some of the correspondence before me and the submissions of counsel. Therefore, I infer that Mr. Parlato’s address in Buffalo is the address on the register maintained by the Corporation.

[28] Further, Article 10.15 of the Co-ownership agreement states that where a matter relating to the affairs of the Corporation are not set out, the provisions of the Condominium Act, 1998, S.O. 1998, c. 19 apply. Section 19 of the Condominium Act specifies that where a management company needs to enter a condominium unit to effect repairs to the common elements, it must give reasonable notice. In any event, it is an implicit term of the Co-ownership agreement that notice must be reasonable.

[29] Therefore, while the Corporation has the right to enter, it must provide reasonable notice and that notice must be provided either personally or by ordinary mail to Mr. Parlato at his Buffalo address.

Issue 4: Has Mr. Parlato failed to provide access to his unit, thereby breaching the Co-ownership agreement?

[30] The Corporation has only proven that Mr. Parlato failed to give access on one occasion after he received proper notice. It is noteworthy that Mr. Parlato has owned this unit for thirty years and the difficulties appear to mostly relate to the period after the Application brought by the Corporation to sell Mr. Parlato’s unit. The following is an analysis of what has occurred.

• 2005: The Corporation’s affidavit refers to an alleged notice given to Mr. Parlato in 2005 which it says confirms that the Corporation was unable to access his unit to test the smoke alarm that year. What the February 9, 2005 notice actually says is that the Corporation could not access his unit because it did not have a key. The Corporation has not referenced any provision of the Co-ownership agreement which entitles it to a key. Although February 9, 2005 notice indicates that prior notice was served on January 31, 2005, it is not attached and there is no evidence as to where that notice was sent or how. There is also no evidence that after serving the February 9, 2005 notice Mr. Parlato refused access which was also requested in the February 9, 2005 notice. Therefore, the Corporation has not established that Mr. Parlato failed to provide access after having received notice in accordance with the Co-ownership agreement.

• 2019: In May 2019 the Corporation gave notice that it would be conducting fire safety inspections. The affidavit filed by the Corporation provides no evidence as to where the notice was sent or the amount of notice given. It does not attach a copy of the notice. The Corporation complains that instead of giving the Corporation access, Mr. Parlato wrote a letter to the Fire Department advising that he would respond to personal requests for fire inspections made by the Fire Department. (He seems to think that it is the Fire Department who conducts these inspections, but in any event, this letter was copied to the Corporation.)

  In his letter to the Fire Department Mr. Parlato stated that he supports fire safety and that “the sole reason for their not gaining access to [his] suite was that [he] was never notified in advance of the Fire Department’s arrival. Rather, the Corporation placed a notice in his mailbox which he did not receive because he does not ordinarily reside there. Had [they] merely brought to [his] attention their planned arrival so that [he], [his] caregiver, or the executor of [his] estate would be in the unit when the Fire Department arrived” he would have provided access.

  Ultimately, the Corporation was able to access the unit in August 2019 to conduct an inspection of the smoke alarm. It discovered that the battery in Mr. Parlato’s smoke alarm was dead and replaced it. The affidavit does not say how the Corporation obtained access. Therefore, it is unknown whether Mr. Parlato ultimately provided access or it cut off the lock to obtain entry. There is correspondence within the record where Mr. Parlato asserts that he met with the testing company when they installed this battery. Even if this evidence is strictly speaking not admissible for the truth of its contents (since this information is not set out in an affidavit but in an appended letter), the burden is on the Corporation to prove he did not provide access.

  I find that Mr. Parlato did not breach the Co-ownership agreement in 2019 because the Corporation has not shown that it gave appropriate notice in accordance with the Co-ownership agreement. Further, they ultimately gained access and inspected the smoke alarm.

• 2020: The Corporation’s filed affidavit says that on July 17, 2020 it “circulated” a notice to all Co-owners that it would be conducting its annual fire safety assessment on July 22, and 23, 2020. The appended notice is dated July 20, 2020 and on its face was prepared on that date. As well, a letter attached to the affidavit dated March 18, 2021 from the Corporation’s counsel states that the notice was circulated on July 20, 2020; this is an admission against interest and admissible on that basis. Therefore, I conclude that this notice was “circulated” on July 20, 2020. In my view, three days is insufficient notice given that Mr. Parlato resides in Buffalo and must arrange for a representative to be present. Further, I am not satisfied it was sent in accordance with the contractual obligation set out in Article 10.6 to deliver notices personally or by ordinary mail. There is no evidence as to how this notice was delivered. There are no names or addresses on the July 20, 2020 notice. It appears that this is a generic notice likely placed in a Co-owner’s mailbox or under their door.

  On August 27, 2020 Mr. Parlato’s lawyer wrote a letter to the Corporation advising that access was denied because the battery for the smoke alarm was replaced in 2019. The letter further advised that he had no confidence in the Corporation’s trustworthiness or honesty and that he would not permit access without supervision by Mr. Parlato or an agent of his choosing. The letter says that Mr. Parlato was told the battery replaced in 2019 would last 10 years and he believed no further assessments would be required for ten years. Again this is not admissible evidence. In any event, even if Mr. Parlato was told this, and even if the notice was deficient, there was still an obligation on Mr. Parlato to have his smoke alarm assessed annually if he did not permit the Corporation to do so.

  The Corporation was unable to conduct any inspection in 2020. Electrical Works determined that the smoke alarm in his unit was a fire safety hazard. Even if the notice sent by the Corporation was deficient, Mr. Parlato breached the Co-ownership agreement by failing to arrange for his own inspection of the smoke alarm. I infer he did not, because he presented no evidence that he did and because his lawyer indicated that he did not think any further testing of the smoke alarm would be required for ten years.

• 2021: In March 2021 the Corporation wrote to Mr. Parlato’s counsel requesting access to inspect the smoke alarm in May. However, the letter did not advise him when in May and it was not sent in accordance with the notice provisions of the Co-ownership agreement. His counsel did not respond despite follow up emails on March 26, 2021, April 12, 2021 and May 2, 2021. Instead, on July 8, 2021 Mr. Parlato sent the Corporation a letter containing serious allegations against the Corporation, its staff and the previous Board of Directors. I am in no position to address these allegations. However, relevant to the issues here are Mr. Parlato’s assertion in his letter that he did not receive appropriate notice and his concerns about the property manager’s request for a key to his unit. Mr. Parlato did not breach the Co-ownership agreement here by failing to provide access, because the notice did not comply with the notice provisions of the Co-ownership agreement.

• On September 24, 2021, the Corporation wrote a letter to Mr. Parlato addressed to his unit at 30 Gloucester as well as his home address in Buffalo. The letter set out 3 proposals and requested a response by October 4, 2021 so the required testing could take place: a) Mr. Parlato could select a qualified Fire Safety Contractor of his choice to enter and provide a report to the Corporation; 2) Mr. Parlato could accompany the Corporation’s contractor when it carries out the testing; or 3) The Corporation’s contractor, accompanied by a Board member only, could conduct the testing. Here, the Corporation acted reasonably and in accordance with the Co-ownership agreement by: 1) providing Mr. Parlato with a number of options; 2) by sending the letter to the address where he actually resided; and 3) by giving reasonable notice—approximately 10 days. Mr. Parlato breached the Co-ownership agreement by failing to permit access so the Corporation could test his smoke alarm or by failing to provide evidence that he conducted that testing himself.

[31] Thus, I am satisfied that Mr. Parlato breached the Co-ownership agreement by failing to provide the Corporation access to his unit in 2021 after he was sent an appropriate notice, and by failing to arrange for his own testing of his smoke alarm in 2020.

[32] However, I am not satisfied that Mr. Parlato is the only one responsible. With respect to 2019 and 2020, the Corporation has not provided evidence that it complied with its contractual obligation in Article 10.6 by providing notices personally or by ordinary mail to his Buffalo address or within a reasonable timeframe.

[33] Further, the Corporation’s request for a key to Mr. Parlato’s unit is also unreasonable, not supported by any contractual or statutory right, and has probably inflamed the situation given their prior dispute.

Issue 5: What is the appropriate remedy for this breach?

[34] Damages are not an appropriate remedy for this breach. Indeed, there is no request for damages.

[35] Rather, the Corporation seeks an Order that requires Mr. Parlato to provide access to his unit after receiving reasonable notice in accordance with the Co-ownership agreement. A permanent injunction for a breach of contract is an equitable, exceptional and discretionary remedy. I am exercising my discretion to award this here because of the importance of fire safety, the inadequacy of damages, and the obvious need which the parties have for clarity and direction in the future.

[36] The Corporation has proposed a ten day-notice period.

[37] Mr. Parlato indicated that he was agreeable to the Corporation entering his unit to test his smoke alarm upon ten days-notice. He lives in the Buffalo, and because of his health, he cannot travel to Toronto for the purpose of these inspections. He is not prepared to give a key to the Corporation because he says he does not trust it. When these inspections take place, he wants to arrange for someone to be present on his behalf. He further feels that the inspection must be done within a specified two hour window. He says it is unfair for him to require his representative to wait all day. I do not think that is unreasonable.

Issue 6: Should the Corporation be permitted to serve “all further notices and documents at his email address”?

[38] The Corporation wants to be able to deliver all future notices and documents by email. I note that the way this requested Order is sought would refer to all notices and documents of any kind, and not merely those related to the inspection of the smoke alarm, which is what this case is about. I make the initial point that this is too broad an Order given that they have only demonstrated his failure to comply with one properly delivered notice.

[39] Mr. Parlato wants notices sent by overnight Canada Post to ensure that he receives them in a timely manner. He says he is even willing to pay the $50 required for overnight delivery. [3]

[40] As noted above, the contract says that notices must be personally delivered or sent by ordinary mail to his last address on the Corporation’s register.

[41] Both parties are asking this Court to rewrite the Co-ownership agreement. This is not a remedy that this Court can grant for a breach. No one provided any case law or authority in the Co-ownership agreement or even the Condominium Act which would permit this short of an agreement by the parties. As noted above the Co-ownership agreement provides that the provisions of the Condominium Act apply where a matter is not addressed in the Co-ownership agreement. I note that s. 47(4) the Condominium Act only permits notice by email if the owner agrees in writing.

[42] More to the point, this appears unnecessary. From the Corporation’s point of view, it can simply send notices by ordinary mail, as long as that ordinary mail is sent so that it is received by Mr. Parlato in a timely manner so that he has time to arrange for a representative to be present. If Mr. Parlato does not provide access then the Corporation has the remedies set out in Article 8.02 which permit it to rectify the matter at the risk and expense of the Co-owner. This expressly includes the right to enter into unit on 24 hours-notice.

[43] If the Corporation wants to avoid future problems, it can accept Mr. Parlato’s offer to pay for overnight Canada Post charges. If Mr. Parlato wants to avoid future problems, he can agree to accept notices by email. But this Court is not going to rewrite their agreement.

[44] Either way, if the Corporation gives proper notice under the Co-ownership agreement and Mr. Parlato fails to voluntarily provide access, the Co-ownership agreement gives it the right to enter the unit on its own on 24 hours-notice and charge Mr. Parlato with any expenses it incurs as a result.

Issue 7: Is the Corporation entitled to additional future permanent injunctions?

[45] The Corporation also asked for additional broadly framed relief which also constituted permanent injunctions. There was no basis for these Orders.

[46] First, it requested an Order the Mr. Parlato “forthwith comply with the Co-ownership agreement.” The Co-ownership is a detailed and lengthy agreement. The only breach allegations relate to his failure to provide access for the purposes of assessing the smoke alarm. Although he is contractually obligated to comply with the Co-ownership agreement, there is no basis for such a broadly framed Order.

[47] Second, it requested an Order that he “refrain from acting in a manner which would directly or indirectly hinder the ability of the [Corporation] to discharge its contractual and statutory obligations respecting fire safety.”

[48] It is unclear why such an Order is necessary or that it is an appropriate remedy arising out of the facts proven by the Corporation. There has been no evidence of interference or hindrance by Mr. Parlato apart from his failure to give access on the only occasion when he received proper notice. There is no evidence he barricades doors or stands at the entrance of the building stopping those conducting fire testing from doing so. At its highest, there is evidence he did not authorize entrance to his unit on the one occasion when he was given adequate notice in accordance with the Co-ownership agreement. This does not justify a sweeping future and permanent injunction which carries with it certain connotations about his past conduct. It is also unnecessary given his position before me that he would provide access upon proper notice. In my view the remedies that I am awarding provide adequate redress to ensure fire safety.

[49] Third, the Corporation also asked for an Order that in the future, Mr. Parlato be required to reimburse the Corporation for all reasonable expenses of carrying out fire safety inspections after 30 days of receipt of an invoice. This is not only a request for an injunction, but a mandatory injunction. There was no evidence or argument before me on who bears the monetary responsibility for the cost of smoke alarm testing from a contractual point of view. These may be treated as something covered by common expenses or they may not be. I cannot know either way on this record. There was no evidence that other Co-owners pay such costs.

[50] There was also no evidence that Mr. Parlato was ever asked for payment for smoke alarm testing and then failed to remit payment, for example in in 2019 when the Corporation did obtain entry and tested the smoke alarm. Therefore, there is no evidence that he failed to pay any invoice.

[51] Parties are not ordinarily permitted to go to Court and obtain orders to enforce contractual provisions which might hypothetically be breached in the future.

[52] If and when the Corporation remits an invoice which Mr. Parlato fails to pay, then it has its contractual remedies in Article 8.

[53] As such, I will not be making any of these requested Orders.

Issue 8: Should the Corporation be permitted to move without notice for further relief in the event of non-compliance with any Court Order?

[54] Notice is a fundamental tenet of the justice system. The fact that someone has breached an agreement in the past is not a basis for taking away all procedural protections in the future.

[55] Here procedural safeguards are particularly critical given the Corporation’s contractual right to sell a Co-owner’s interest in the event of a breach of the Co-ownership agreement.

[56] Therefore I reject the Corporation’s request for such a sweeping Order.

Issue 9: Is the Corporation entitled to full indemnity costs and if not, what is the proper scale amount of costs which should be ordered?

[57] The Corporation claims costs on a full indemnity basis in the amount of $30,990.64 and in the alternative in the amount of $13,745 on a partial indemnity basis. It also requests costs in respect of the court attendance which it quantified as $3,500 for this two hour motion and disbursements in the amount of $2,008.88. I understand from Mr. Parlato’s submissions that the Corporation requested costs in the amount of $40,000 before Monahan J. in respect of their previous dispute.

[58] I am not prepared to award any costs in this matter because success was divided. The Applicant did not establish that Mr. Parlato breached the Co-ownership agreement in 2019 or 2020 by refusing access to his unit. With the exception of 2021, the Corporation has not given reasonable notice, nor has it demonstrated that it complied with its contractual obligations as to where and how the notices should be sent.

[59] The Corporation was also unsuccessful in its request to be permitted to change the notice provisions in the Co-ownership agreement, or its request for various permanent injunctions or that it be permitted to proceed ex parte in the future.

[60] If I am wrong in the exercise of my discretion with respect to costs, I set out below the reasons why I would not award full indemnity costs, but only partial indemnity costs in the amount of $6,750 inclusive of disbursements.

[61] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court. Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors which courts should have regard to when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (C.A.)., at para. 4; Boucher v. Public Accountants for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26; Davies v. Clarington (Municipality) et al., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 52; G.C. v. Ontario (Attorney General), 2014 ONSC 1191.

[62] The common law holds that the Court has the discretion to award substantial indemnity costs, but such costs are “rare and exceptional” and only warranted where there has been reprehensible, scandalous or outrageous conduct on the part of a party: Duca Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5 and Foulis v. Robinson, (1978), 21 O.R. (2d) 769 (C.A.), and most recently Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43.

[63] The Corporation references Article 4.02D of the Co-ownership agreement which it says entitles it to full indemnity costs.

[64] In my view, the wording of Article 4.02D does not clearly entitle the Corporation to full indemnity costs as against a Co-owner in respect of a dispute the Corporation has with the Co-owner.

[65] The first sentence in Article 4.02D references the Corporation’s entitlement to “reasonable costs” related to any default by the Co-owner.

[66] The second sentence in Article 4.02D then indicates that these include “all costs incurred in any negotiations or disputes regarding the Corporation that the Corporation may have with any other claimant, including anyone who represents one or more creditors of the Co-owner as assignee for the benefit of creditors, trustee in bankruptcy or receiver, all lawyers accounts (determined as between a solicitor and his own client) and all registration fees.” This second sentence, which references solicitor and client costs is ambiguous. It can be interpreted to be restricted to the situation where a Co-owner’s default has caused the Corporation to have disputes with others and incurs legal costs related to these.

[67] Since the Co-ownership agreement was not drafted by Mr. Parlato, and must have been drafted by the Corporation or its agents, I am interpreting this provision strictly and in the most preferential way to Mr. Parlato.

[68] I would award costs on a partial indemnity basis given the reference to “reasonable costs” in Article 4.02D, and the common law which provides limited circumstances in which substantial indemnity costs should be awarded.

[69] Turning to the general relevant factors, the Application was important because it related to fire safety. However, there was divided success as set out above.

[70] The rates claimed are reasonable, but the matter was not at all complex and the hours spent by counsel were not within Mr. Parlato’s reasonable contemplation. The Notice of Application is three pages long and the supporting affidavit, without exhibits, is ten pages long. The factum, essentially repeats the bulk of the Notice of Application and affidavit. The Corporation’s counsel spent 74.5 hours to prepare these materials which is excessive. This is the equivalent of one lawyer working for two entire weeks on nothing but this matter.

[71] While the Corporation was entitled to spend as much time as it wished on this Application, Mr. Parlato can only be responsible for costs which were in his reasonable contemplation.

[72] As well, the courier and process server fees in the amount of $568 and $588.77 excessive; these are also not supported by any receipts. There is also a claim for “Fire Standards Purchase” in the amount of $577.47. The Corporation has an obligation to ensure fire safety; it they had to purchase these Standards, they are relevant to the Corporation’s overall obligations and they cannot recover such costs from Mr. Parlato.

[73] Taking into account all the factors, in the exercise of my discretion, if a costs award was appropriate, I would have awarded $6,000 in respect of fees and $750 in respect of disbursements.

Conclusion

[74] Fire safety is critical.

[75] This is particularly so in residential buildings where many people reside. Fires which begin in one unit may spread to others quickly. As such, it is important that residents in such buildings comply with smoke alarm testing protocols and provide access to their units for such purpose.

[76] At the same time, those in charge of these buildings do not have the right to demand access anytime they wish and in any manner they wish. Where a co-ownership agreement specifies the form of notice required, those conducting this fire safety testing must comply with such notice provisions. Their failure to do so undermines fire safety.

[77] Therefore, I declare as follows:

• In 2021, Mr. Parlato breached the Co-ownership agreement by failing to give the Corporation access to his unit for the purpose of smoke alarm testing although duly served with a notice in accordance with the Co-ownership agreement and/or by failing to arrange for such testing himself.
• For the years 2019 and 2020, the Corporation failed to give proper notice of its proposed fire safety inspection in accordance with the provisions of the Co-ownership agreement.
• For the year 2020 Mr. Parlato breached the Co-ownership agreement by failing to comply with the Ontario Fire Code which requires smoke alarms to be tested annually.

[78] I Order as follows:

• When the Corporation intends to conduct an annual smoke alarm inspection, it shall provide Mr. Parlato with no less than ten days written notice either personally or by ordinary mail to his Buffalo address. If the Corporation chooses to send the notice by ordinary mail, the notice shall be effective on the fifth day after it is sent. The notice regarding smoke alarm testing shall specify the date of the proposed inspection as well as a two hour window within which the inspection shall take place. Upon receipt of such notice, Mr. Parlato shall provide the Corporation with access to his unit for the purpose of smoke alarm inspection. Since the Corporation has expressed concern in its subsequent written submissions that it does not have the actual address where Mr. Parlato resides in Buffalo, he shall confirm this address within 14 days of this decision in writing.
• If Mr. Parlato or a duly authorized representative is not present on the specified date during the times set out in the notice, the Corporation may take reasonable steps to enter Mr. Parlato’s unit in accordance with the Co-ownership agreement upon 24 hours’ notice. Mr. Parlato shall be responsible for any reasonable costs of the Corporation taking such steps including the installation of a new lock on the unit door which costs shall be payable within 30 days of receipt of an invoice.

Papageorgiou J.

Released: August 3, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: GLOUCESTER GATE INC. Applicant – and – JOSEPH PARLATO Respondent

REASONS FOR JUDGMENT Papageorgiou J. Released: August 3, 2023

[1] O. Reg. 213/07: Fire Code under Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4

[2] This Guideline is established by the Office of the Fire Marshal and Emergency Management pursuant to the Ontario Fire Code

[3] During the hearing I pressed him on receiving notices by email and he reluctantly agreed but then retracted this the following day in written submissions because when he was in hospital previously, he was prohibited from using a computer and receiving emails and he is concerned about missing a notice in the future. While this is not sworn evidence, I am permitting Mr. Parlato to change his position because it was only as a result of my pressing him that he reluctantly agreed to this in the first place.