2024 ONSC 7394

COURT FILE NO.: CV-23-1155-0000 DATE: 2024 10 23

SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6

RE: PEEL CONDOMINIUM CORPORATION NO. 170, Applicant AND: MITTEL, Bonita Lynne Respondent

BEFORE: Justice LeMay

COUNSEL: Megan Molloy, for the Applicant Email: mmolloy@elia.org Ranjan Das, for the Respondent (for costs submissions only) Email: rdas@byldlaw.com

HEARD: In Writing

Endorsement

[1] The Applicant, Peel Condominium Corporation 170 brought an Application seeking enforcement of an award made by Arbitrator Colm Brannigan against the Respondent, Ms. Bonita Brush-Mittel in January of 2023. I granted that Application on February 8th, 2024. It is now time to fix the costs for the Application.

Background

The Events Leading to the Arbitration

[2] There were considerable disputes between the Applicant and the Respondent over the last few years. The Respondent challenged the manner in which the Applicant’s Board of Directors conducted the Applicant’s business. These challenges were significant and the Respondent enlisted the services of a Mr. Gerry Jutsun to assist her. Mr. Jutsun presents himself as the President of Fraud Security Investigators. He is not a lawyer but has stated that he “acts as a legal intermediary with our in-house lawyers and paralegals and wherein we employ them when needed to go on the record. The Law Society of Ontario is completely aware of my services, subject to conditions and which was established with their consent in 2012.” I have no other information that would support this assertion. I note that Mr. Jutsun does not appear on the LSO’s legal or paralegal directory.

[3] In January of 2023, Arbitrator Brannigan released a decision in respect of an arbitration that he had conducted between the Applicant and the Respondent. As a result of that application, the arbitrator concluded (at para 179) that the Respondent and her representative had “engaged in what was a calculated drawn-out attempt to disrupt the governance of [the Applicant] on her own behalf on and behalf of the former board”.

[4] This conclusion was based on a series of factual findings that are detailed in the Arbitrator’s comprehensive award. To highlight a few of the findings, the Respondent was engaged in challenging the Applicant’s Board’s decisions, making defamatory comments and loitering in public so that she could speak to other owners of the condominium. The conduct complained of included blowing an air horn at other members of the condominium corporation, uttering racial slurs and intimidating members of the Board. She has also allegedly made baseless complaints to various City departments.

[5] Part of the basis for this conduct was the Respondent’s concern that the proper Board was a different group of people, whom she referred to as “the Board in Exile”. For the purposes of these reasons, it is not necessary to review the whole history of the alleged “Board in Exile” or the Respondent’s conduct. However, it is clear that the conduct of the Applicant was contentious.

[6] The Arbitrator found that most, if not all, of the allegations made against the Respondent were proven. As a result, the Arbitrator provided the Applicant with various forms of relief, including costs in the amount of $68,934.18 inclusive of HST and disbursements. He also enjoined the Respondent from engaging in certain forms of conduct. The ruling prohibiting certain conduct applied to Mr. Jutsun as well.

[7] The Respondent did not comply with this Order. As a result, the Applicant filed an Application with this Court on May 16th, 2023 for the purposes of enforcing the Arbitrator’s order. I now turn to that process.

The Proceedings in Superior Court

[8] The action first came before Chown J. on May 19th, 2023. At that time, the Respondent asked for an adjournment so that she could retain counsel. That adjournment was granted on terms, which included the enforcement of some of the terms of the Arbitration order.

[9] The matter was then to come back before the Court on August 3rd, 2023. It was adjourned on consent as a result of the fact that the Respondent’s counsel was on vacation. A new date of October 24th, 2023 was chosen. The October date did not proceed because of an adjournment request by the Respondent’s counsel and an error in the booking of the date through the Calendly system.

[10] On or about November 30th, 2023, the Respondent’s counsel got off the record. The Respondent advised that this was because of interference from the Applicant, but I had no evidence to support that claim.

[11] In any event, the matter proceeded before me on February 8th, 2024 by way of a hybrid proceeding. The Respondent was present in person, while counsel for the Applicant was present by ZOOM. The Respondent requested an adjournment. I denied that request for reasons set out in my endorsement of February 8th, 2024.

[12] I should note that there was also correspondence uploaded to CaseLines from Mr. Jutsun dated February 7th, 2024. That correspondence was addressed to Applicant’s counsel and indicated that the date of February 8th, 2024 had never been agreed to by himself or the Respondent. Mr. Jutsun also indicated that he was engaged in an investigation that had been requested by multiple members of the Condo Corporation as well as the “Board in Exile”. It is a lengthy letter. I reviewed it at the time that the matter was before me and determined that this letter was not a basis for adjourning this hearing.

[13] I also confirm that I advised the Respondent about this letter from Mr. Jutsun and her response was “I have nothing to do with Mr. Jutsun.” This was surprising to me, given both Mr. Jutsun’s involvement at the arbitration and the fact that his correspondence was sent the day before the hearing before me. However, I accept the Respondent’s position in this regard.

[14] In summary, the adjournment was denied because the matter had been before the Courts for a year, it was a simple matter and there appears to have been efforts on the part of the Respondent to delay this matter. I also noted that, in respect of the merits of the matter, it was highly likely that the Application would succeed because, where there is no appeal pending and the appeal period has passed, the Court almost always has an obligation to enforce these awards. Abbitan v. Wilcox 2020 ONSC 6836.

[15] I then granted the Application over the Respondent’s objections. For the record, her objections expressed orally were that the Arbitrator was a disgraced former lawyer, she had not been able to attend the Arbitration and that the arbitrator relied on evidence that was unreliable. The Respondent also argued that the Arbitration and the appeal were an attempt by the Applicant and its agents to get her out of her unit and to cover up their misconduct. As part of her submissions, the Respondent referred to Arbitrator Brannigan as a disbarred lawyer.

[16] I will now set out two events that took place after the Application was completed. First, approximately a week after I released my decision, I arrived in my office to note a package of correspondence that I had received from Mr. Jutsun. It includes a detailed letter dated February 17th, 2024 along with attachments that explain that Mr. Brannigan was disbarred some twenty years ago. The letter advised that Mr. Jutsun was engaged in preparing an Investigative Audit Fraud Report (IAFR) and sought an amended endorsement. Mr. Jutsun’s letter advised me that my “amended Endorsement should stay any decision of certification of the Arbitration order of Colm Brannigan at this time, and which can be examined and adjudicated upon after [sic] release of my IAFR; and your endorsement can be Peremptory to ensure there is no further delay and the Respondent is compelled to retain counsel if required.”

[17] I also note that this material was not copied to counsel for the Applicant. I am not sure as to whether counsel is aware of its existence, so I have provided her with a copy of the material (along with the transcript from the February 8th, 2024 hearing) in the e-mail that transmits this decision. I have not attached that information to the reported decision itself.

[18] I do not intend to make any changes at all to my endorsement. The matter is fully resolved by that endorsement, and the Arbitration order has been fully enforced since February 8th, 2024. Mr. Jutsun’s correspondence is improper in at least three respects:

a) It was not copied to anyone else involved in the litigation. b) It seeks to re-open the case without a proper motion record before me. c) Given the Respondent’s assertions before me that she had nothing to do with Mr. Jutsun, the submissions appear to be being made without the instructions of any of the litigants.

[19] Mr. Jutsun’s submissions on the substance of the case are also without merit. I reject his letter for all of these reasons.

[20] The second event was that the Respondent retained Mr. Das for the purposes of costs submissions only. Mr. Das provided his costs submissions on February 29th, 2024 in accordance with my directions. Unfortunately, I missed the fact that these costs submissions had been completed and did not finalize this endorsement until this week.

The Parties' Positions

[21] The Applicant seeks costs for the Application on a full indemnity basis in the sum of $17,992.76, inclusive of HST and disbursements. These costs are sought on the basis that the case-law supports that full indemnity costs should be paid in condominium cases and that the costs incurred are reasonable.

[22] The Respondent opposes this request for costs on three grounds:

a) That the facts of the case do not support the claim for full indemnity costs. b) That the Respondent did not oppose this Application. c) That the Respondent cannot afford these costs.

[23] I will deal with the relevant arguments in turn.

Issue #1 - The Scale of Costs

[24] Counsel for the Applicant seeks costs on a full indemnity basis. The Respondent opposes this request on the basis that the case-law does not support such a request.

[25] I accept the Applicant’s position on this issue. This is a case between a condominium and a unit holder. The law in this area is different than the regular costs rules. Section 134(5) of the Condominium Act, 1998, S.O. 1998, c. 19 states:

(5) If a corporation obtains an award of damages or costs in an order made against an owner or occupier of a unit, the damages or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses for the unit and the corporation may specify a time for payment by the owner of the unit.

[26] This section has been considered by the Court of Appeal in Metropolitan Toronto Condominium Corp No. 1385 v. Skyline Executive Properties Inc. In that decision, the Court stated (at paras. 45 and 46):

[45] Reading the words of s. 134(5) as informed by the well-recognized distinction between costs that are awarded between parties and costs that are payable as between a party and its own lawyer makes the meaning clear to me. “Additional actual costs” will refer to those legal costs properly owed by MTCC to its lawyers above and beyond the amounts awarded for costs by the court or in a court ordered assessment. Those “additional legal costs” are properly added to the common expenses of the unit pursuant to s. 134(5) so long as they were incurred “in obtaining the order”. As actual legal costs refers to those costs properly claimed by a lawyer against his or her own client, the principles governing the assessment of legal bills as between a lawyer and his or her client, should govern any dispute between MTCC and Skyline as to the propriety of any part of the legal bills relied on by MTCC in support of a claim for “additional legal costs” under s. 134(5): see Mark M. Orkin, The Law of Costs, 2nd ed., looseleaf (Aurora, Ont: Canada Law Book Inc., 2004) at 602ff.

[46] A reading of s. 134(5) that allows MTCC to claim its actual legal costs in obtaining the compliance order as part of the common expenses of the Skyline units is consistent with the remedial purpose of s. 134(5). That reading effectively shifts the financial burden associated with obtaining a compliance order from the “innocent” condominium corporation and unit owners to the “guilty” unit owner who necessitated the obtaining of the compliance order.

[27] Courts have relied on this analysis to conclude that condominium litigation is different than other litigation and that higher levels of costs, including full indemnity costs, will be ordered more routinely. The rationale for this, put simply, is that the Condominium Act shifts the burden for these proceedings away from innocent owners who were not part of the litigation. Sennek v. Carleton Condominium Corp. No. 116, 2018 ONSC 1921 at para. 20, Carleton Condominium Corp. No. 396 v. Burdet, 2015 ONSC 1361.

[28] It is also worth noting that the Applicant’s by-laws contain a provision that requires any owner to indemnity and save the Applicant harmless from any loss, costs, damages, injury or the like.

[29] Counsel for the Respondent directs my attention to two of my own previous decisions where I found that full indemnity (or even substantial indemnity) costs should be awarded in narrow and exceptional circumstances. Michael St. Jean Realty v. Scarfone Hawkins LLP, 2023 ONSC 5543 and Blanks v. Roberts, 2023 ONSC 3568. While that assertion is generally true, costs in condominium cases are (as noted in paragraph 27) dealt with differently. These cases are both distinguishable as they are not cases under the Condominium Act.

[30] All of these points support an award of full indemnity costs in this particular case. The question is whether the Respondent’s conduct supports a lower award of costs. I turn to this point now.

Issue #2 - The Respondent Did Not Oppose this Application

[31] The Respondent’s counsel argues that costs should not be awarded against her because of the fact that she did not oppose this application. I reject this argument for three reasons.

[32] First, the Respondent did not simply agree to have the arbitration award enforced or to abide by its terms. As a result, the Applicant was required to enforce the agreement in Court to ensure that it was binding on the Respondent.

[33] Second, the Respondent did oppose the Application in her submissions before me. She attempted to explain that I should not accept Mr. Brannigan’s decision on the basis that he was a disgraced former lawyer and that he accepted evidence from people who were not credible. These submissions can only be viewed as being made in opposition to the Application to enforce the order.

[34] Finally, the Respondent delayed this matter for a considerable period of time. While there may have been reasons for some of that delay, when the Respondent’s opposition to the Order combined with the fact that she was not prepared to agree to be bound by its terms suggests that the delay was motivated, at least in part, by a desire to slow down the adjudicative process.

[35] I also note that the Respondent has brought an action (by way of a Statement of Claim) against the Applicant for $2 million. That matter was not before me. However, its existence raises further concerns about the Respondent’s claim that she has not opposed the enforcement of Arbitrator Branigan’s award.

[36] The Respondent opposed this Application and it was necessary for the Applicant to bring this Application to enforce the Arbitration decision. The other unit holders should not be required to absorb the costs of her opposition. Full indemnity costs are appropriate in these circumstances.

Issue #3 - The Respondent’s Inability to Afford the Costs

[37] The Respondent’s counsel argues that she does not have the ability to pay costs in this matter. In support of that position, counsel directs my attention to the Respondent’s 2022 Income Tax return which shows an income of approximately $29,000. Counsel argues that, since the Respondent is already liable to pay costs of over $60,000 for the arbitration hearing, she simply cannot afford any additional costs for this application.

[38] I reject this argument for two reasons. First, the Respondent has not provided any other information about her finances. For example, she owns her condominium unit. There is no indication that there is any charge against this unit other than the previous costs award. The Respondent may also have other assets. As a result, it is difficult to see whether the Respondent is actually incapable of paying the costs in this case.

[39] Second, the Respondent is ultimately responsible for her conduct in this matter and should not be permitted to use difficult financial circumstances to impose the burden of this proceeding on the other unit holders. As discussed above, the legislature has made policy choices about who should bear the responsibility for costs of this nature. The court must be respectful of those choices, and should not deviate from them unless there are significant extenuating circumstances. The circumstances here do not rise to that level.

The Overall Costs Assessment

[40] As can be seen, I have accepted the fact that the costs in this case should be payable on a full indemnity basis. The only question that I am left with is whether the quantum of costs is reasonable. The Applicant has filed a bill of costs outlining the basis for their claim.

[41] In an email exchange dated February 26th, 2024, counsel for the Respondent asked the Applicant’s counsel for her dockets. Her response was to say that “I am not inclined to produce my dockets at this time. After a review of the case law, I believe our costs brief is sufficient.” The documentation provided in the costs brief and the bill of costs sets out a detailed listing of the tasks undertaken. What it does not do is break out the time that was spent on each task. This makes it more difficult for me to assess precisely what is done and for which task. The detailed docket entries are always of assistance to the Court.

[42] However, the total amount of work that is claimed in this case is 40 hours. This includes the Application record, the factum, the efforts to obtain an urgent hearing date and the subsequent adjournments of the matter. There is also no additional time charged for the completion of the costs submissions. In my view, 40 hours of work in total for this file is not an unreasonable amount of time. In addition, the principal counsel for the Applicant has ten years of experience, so a rate of $370.00 per hour is not unreasonable either.

[43] As a result, I am of the view that the Applicant’s claim for costs in the sum of $17,992.76 inclusive of HST and disbursements should be granted and I so order.

Conclusion

[44] For the foregoing reasons, I order the Respondent to pay the Applicant costs in the sum of $17,992.96 inclusive of HST and costs for this Application.

[45] In addition, I am directing that a copy of this endorsement and a copy of the materials that I received from Mr. Jutsun after February 17th, 2024, be sent to the Law Society of Ontario for review for the reasons I have set out above.

LEMAY J. Released: October 23, 2024