Court File and Parties
Court File No.: CV-24-00725200-0000
Date: March 20, 2025
Court: Ontario Superior Court of Justice
Applicant: Toronto Standard Condominium Corporation No. 2707
Respondents: 612 Richmond Street West Inc. and 1000761660 Ontario Inc.
Before: Robert Centa
Counsel:
- Megan Mackey, for the applicant
- Kirpal Singh, for the respondent 612 Richmond Street West Inc.
- Al-Riaz Adatia, for the respondent 1000761660 Ontario Inc.
Heard: March 20, 2025
Endorsement
Application to Enforce Arbitration Award
Toronto Standard Condominium Corporation No. 2707 applies under s. 50 of the Arbitration Act, 1991, SO 1991, c 17, for an order enforcing an arbitration award dated July 5, 2024, and a subsequent cost order dated July 17, 2024. For the reasons that follow, I grant the application.
Background
TSCC 2707 is a residential condominium located at 612 Richmond St. W., in Toronto. The commercial lands at the condominium project were owned by the respondent 612 Richmond Street West Inc. On February 15, 2024, 612 Inc. sold the lands to the respondent 1000761660 Ontario Inc. The owner of the commercial lands is required to contribute to the costs of certain facilities pursuant to a shared facilities agreement, which contains an arbitration provision.
TSCC 2707 triggered the arbitration provision to resolve a dispute over arrears in contributions for the shared facilities. On November 29, 2023, Koehnen J. ordered that L. Leslie Dizgun act as arbitrator for the dispute.
Arbitration Proceedings
The arbitrator convened several case conferences. In his reasons for decision, which were dated July 5, 2024, the arbitrator explained that 612 Inc. participated in some case conferences before it stopped participating. He also explained that TSCC served 1000 Inc. with the amended notice of application, and 1000 Inc. declined to participate despite ample opportunity to do so:
Several case conferences were held, and certain orders and directions were issued. 612 Inc. participated in the case conferences on December 7, 2023, January 23, 2024, and April 4, 2024, but failed to attend the case conference on April 16, 2024 and, further, failed to provide any materials, affidavit-in-chief, or arbitration record for the hearing of this arbitration.
A sale of the commercial lands occurred on or about February 15, 2024 and then came to the attention of TSCC 2707. As a result, a scheduled hearing date was adjourned, in part, so that TSCC 2707 could amend its Notice of Arbitration to include the New Commercial Owner, 1000 Inc. Prior to the hearing, TSCC 2707 again amended its Notice of Arbitration to claim further arrears of shared facilities costs.
In my Third Procedural Direction dated April 4, 2024, I required that 1000 Inc. be served again with the Amended Notice of Arbitration of TSCC 2707, and be provided with a further opportunity to respond to TSCC 2707's Amended Notice of Arbitration. Further, 1000 Inc. and 612 Inc. were cautioned that a failure to respond would be treated as a default under Rule 14 of the ADR Chambers Arbitration Rules. I am satisfied that the Respondents had ample opportunity to participate in this arbitration and chose not to do so. Therefore, this arbitration proceeded to hearing in accordance with Rule 14 of the ADR Chambers Rules.
Arbitration Award
At the end of the arbitrator’s clear and cogent decision, he made the following order:
a. The Respondents, 612 Richmond Street West Inc. and 1000761660 Ontario Inc. are jointly and severally liable, and shall pay to Toronto Standard Condominium Corporation No. 2707 the sum of $137,077.00, calculated to May 29, 2024.
b. Interest shall accrue on the said sum at the rate of 24% per annum compounded monthly from May 30, 2024, until full payment is made.
The arbitrator received cost submissions and, on July 17, 2024, awarded costs to TSCC 2707 of $65,484.95, plus postjudgment interest of 2% per year.
Application to Enforce the Award
The arbitral awards remain unsatisfied, so TSCC 2707 commenced this application under s. 50 of the Act, which gives a successful party in an arbitration the right to apply to the court to enforce the award. Subsection 50(3) provides that:
(3) The court shall give a judgment enforcing an award made in Ontario unless,
(a) the thirty-day period for commencing an appeal or an application to set the award aside has not yet elapsed;
(b) there is a pending appeal, application to set the award aside or application for a declaration of invalidity;
(c) the award has been set aside or the arbitration is the subject of a declaration of invalidity; or
(d) the award is a family arbitration award.
The evidence filed by TSCC 2707 demonstrates that none of the circumstances described in paragraphs 50(3)(a) to (d) are present in this case. 612 Richmond does not disagree. Counsel for 612 Richmond conceded that the arbitration decision was not appealed or challenged and there is no basis to resist enforcement under the Act. Instead, 612 Richmond suggests that the following issues are raised on the application:
- ISSUE NO. 1: What should 612's contribution to pay the cost in the amount of $65,484.95 be, on a joint and several basis?
- ISSUE NO. 2: Should 612's obligation to pay the cost be apportioned in a way that is fair and reasonable?
- ISSUE NO. 3: Should the cost order be awarded against Respondent #2 in a manner that is consistent with its failure to provide instructions to its lawyer to release the escrow amount to the Applicant?
- ISSUE NO. 4: Does Respondent #2's failure to instruct its lawyer to release the escrow amount to the Applicant have any implications of the payment of the cost on a joint and several basis?
- ISSUE NO. 5: Should Respondent #2 be responsible for the cost for its failure to instruct its lawyer to release the escrow amount to the Applicant?
With respect, none of these issues are relevant to the matters at issue on this application. The only question before court is whether any of the circumstances listed in s. 50(3)(a) to (d) of the Act are present. 612 Richmond’s submissions do not engage with these questions. 612 Richmond and 1000 Ontario may have issues between them, but that is for them to resolve in a separate proceeding. Those disputes pose no impediment to the application to enforce the arbitral award.
Judgment
I am satisfied that none of the conditions in s. 50(3)(a) to (d) of the Act are present in this case. In such circumstances, I am required to grant judgment enforcing the award. Judgment is granted in favour of the applicant.
Costs
The applicant sought full indemnity costs. I disagree that it is entitled to costs on that basis. I do not think that the shared facilities agreement covers the costs of this application. This is a case for costs on a partial indemnity scale. The costs claimed by the applicant are reasonable and I order them fixed at $11,986.51, including disbursements and HST, and order that the respondents are jointly and severally liable to pay this amount within 30 days of this order.
Robert Centa
Date: March 20, 2025