Peel Condominium Corporation No. 96 v. Leuzzi, 2025 ONSC 3492

COURT FILE NOS.: CV-23-3953 and CV-24-1370
DATE: 2025-06-17
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Peel Condominium Corporation No. 96, Applicant/Respondent in Cross-Application
AND: Carmine Leuzzi, Respondent/Applicant in Cross-Application
BEFORE: M.T. Doi
COUNSEL:

• Matthew Morden, for Peel Condominium Corporation No. 96, the Applicant and Respondent to Cross-Application
• Joshua Gautreau, for Carmine Leuzzi, the Respondent and Applicant in Cross-Application
  HEARD: December 11 and 12, 2024

Endorsement

Overview

[1] Two applications returned before me. The first application (CV-23-3953) was brought by Peel Condominium Corporation No. 96 (“PCC 96”) under s. 134 of the Condominium Act, 1998, SO 1998, c 19 (the “Act”) to have Carmine Leuzzi cease and desist from harassing any person on the condominium property and corollary relief. The cross-application (CV-24-1370) was brought by Mr. Leuzzi under s. 135 of the Act for an oppression remedy.

[2] As set out below, I find that the application should be granted and the cross-application should be dismissed.

The Parties

[3] PCC 96 is a condominium corporation under the Act. Its declaration was registered on August 10, 1986. It manages two condominium towers that each have 100 residential units. Its volunteer board exercises the responsibility of managing the corporation’s affairs, that includes directing property management and third-party contractors, among other things. Since April 1, 2022, Synapse Property Management Inc. (“Synapse”), a licensed management services provider under the Condominium Management Services Act, 2015, SO 2015 c. 28, Sched. 2, has provided PCC 96 with property management services. Jeronim Dyrmishi is the principal of Synapse that has employed Dorothy Choros as PCC 96’s office administrator since April 15, 2022. Under the services contract between Synapse and PCC 96, Ms. Choros works on-site at PCC 96 for 23 hours per week. PCC 96 reportedly has stable finances with a surplus of operating funds and an adequate reserve fund.

[4] Mr. Leuzzi and his wife, Katarzyna Leuzzi, own a unit in one of PCC 96’s condominium towers. Both reside in their unit at the condominium premises.

The Evidentiary Record

a. Audio Recordings

[5] Mr. Leuzzi seeks to adduce two (2) audio recordings as narrative evidence to contextualize certain events that took place. The first is the recording that he made of PCC 96’s townhall meeting on October 18, 2023. The second is a recording of a meeting held on December 16, 2023 between PCC 96 board member Judith D’Souza, building resident Nathan Den Ouden, and unit owner Thien Le, that Mr. Leuzzi did not attend. PCC 96 submits that both recordings are hearsay.

[6] Hearsay evidence is presumptively inadmissible unless it falls under a traditional exception to the hearsay rule. This rule recognizes the difficulty in assessing the truth of a statement made outside of court as the statement is not taken under oath, the trier of fact cannot observe the maker’s demeanour in making the statement, and, most importantly, the statement is not tested by cross-examination: R. v. Charles, 2024 SCC 29 at para 43; R. v. Bradshaw, 2017 SCC 35 at paras 1, 19, 20; R. v. Khelawon, 2006 SCC 7 at para 48; R. v. Lako, 2025 ONCA 284 at paras 43-44. That said, narrative evidence that is necessary to understand a sequence of events and is not tendered for the truth of its contents falls beyond the reach of the hearsay rule and may be permitted: R. v. Ellis, 2022 ONCA 535 at para 26; R. v. Camara, 2021 ONCA 79 at para 55.

[7] I am satisfied that the audio recording of the October 18, 2023 townhall meeting should be admitted as narrative evidence. Mr. Leuzzi attended the townhall meeting and made the recording that is helpful in understanding how the meeting unfolded in proper context. I also find that this recording is admissible for being narrative as circumstantial evidence as the circumstances surrounding the meeting will help in assessing the credibility and reliability of the witnesses, including Mr. Leuzzi and others, in this matter: R. v. R.A., 2024 ONCA 696 at para 31, citing R. v. Khan, 2017 ONCA 114 at para 31, leave to appeal refused [2017] SCCA No 139; R. v. Assoun, 2006 NSCA 47 at para 176.

[8] Apart from my finding that the recording is admissible as narrative evidence, I find that a portion of the recording of the October 18, 2023 townhall meeting is also admissible as a party admissions exception to the hearsay rule. This exception permits a party to litigation to seek the admission of any statement by the opposing party for the truth of its contents: MJL Enterprises Inc. v. SAL Marketing Inc., 2025 ONCA 120 at para 17, citing R. v. Evans, [1993] 3 SCR 653 at 664. As detailed below, Mr. Leuzzi offered to settle his non-smoking complaint with PCC 96 on terms that he described several times during the townhall meeting. In light of this, I find that the recording of his comments during and shortly after the meeting about settling his complaint with PCC 96 should be admitted as a party admissions exception to the hearsay rule.

[9] I do not find that the recording of the December 16, 2023 meeting between Ms. D’Souza, Mr. Den Ouden, and Mr. Le is admissible under the principled exception to the hearsay rule. This recording is clearly hearsay and presumptively inadmissible unless it falls under a traditional exception to the hearsay rule: Lako at para 43. Under the principled exception, a presumptively inadmissible hearsay statement can be admitted for its truth when it meets the criteria of necessity and threshold reliability on a balance of probabilities: Charles at para 45; Bradshaw at para 23. Even if a hearsay statement meets this criteria, the court has a discretion to exclude the statement where its prejudicial effect outweighs its probative value: Bradshaw at para 24; Lako at para 44.

[10] I am not persuaded that the December 16, 2023 recording meets the necessity criterion. On October 16, 2024, a process server for Mr. Leuzzi attempted to serve Ms. D’Souza with a summons to attend a virtual Rule 39.03 examination on October 18, 2024 for the purpose of having a transcript of her evidence available on the applications. However, service of the summons was not effected and she did not attend the examination. There is no evidence that any further efforts were made by Mr. Leuzzi to summons or compel her attendance for examination, or to otherwise summons Mr. Den Ouden or Mr. Le for examination. It would seem that first-hand evidence was potentially available from any or all of these witnesses but not pursued for reasons that are unclear. A reluctance to testify will not establish unavailability, much less necessity: R. v. F.(W.J.) at para 44; R. v. Vickers, 2020 ONCA 275 at para 54. Moreover, as the December 16, 2023 recording was condensed (i.e., to shorten its original hours-long duration), I have concerns that the missing portions of this recording may impact its reliability. In turn, I find that allowing the December 16, 2023 recording into evidence would be risky as it lacks corroboration or any first-hand explanation of its content leaving no meaningful way to assess its truth, accuracy, or trustworthiness: Lako at para 48. Accordingly, I find that the December 16, 2023 recording should be excluded as its prejudicial effect would outweigh its probative value: Lako at para 44.

b. Affidavit Evidence from Mr. Leuzzi

[11] PCC 96 submits that portions of certain affidavits that Mr. Leuzzi filed should be struck for containing inadmissible hearsay and contentious facts.

[12] Rule 4.06(2) of the Rules of Civil Procedure, RRO 1990, Reg. 194, provides that an affidavit is to be confined to statements of fact within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where the rules provide otherwise.

[13] Rule 39.01(5) provides that an affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious if the source of the information and the fact of the belief are specified in the affidavit. It follows that an affidavit for use on an application cannot contain contentious facts based on the deponent’s information and belief: TSCC No. 1724 v. Evdassin, 2020 ONSC 1520 at para 46; Follwell v. The King in the Right of Ontario as Represented by the Minister of Transportation, 2024 ONSC 6136 at para 60. The permissiveness of rule 39.01(5) does not provide parties and counsel “a license for slippiness [or] laxity” or allow the improper admission of hearsay: Haventree Bank v. Lording, 2023 ONSC 1011 at para 6; China Yantai Friction Co. Ltd. v. Novalex Inc., 2023 ONSC 3424 at para 15.

[14] As paragraph 18 and the email message attached as Exhibit F to Mr. Leuzzi’s affidavit sworn December 11, 2023 purport to adduce evidence of an override of authority by a member of PCC 96’s board of directors, I find that these excerpts should be struck as inadmissible hearsay on a contentious matter. This evidence seeks to attribute remarks to Ms. D’Souza, a member of PCC 96’s board of directors and someone in Mr. Leuzzi’s community group, who did not swear an affidavit in this litigation about a clearly contentious matter that is offered as an example of PCC 96’s board acting improperly. That said, and for reasons given earlier, I shall allow into evidence paragraph 42 of the same affidavit that sets out remarks by Mr. Leuzzi at a townhall meeting on October 18, 2023 that he recorded.

[15] I find that the following portions of Mr. Leuzzi’s affidavit sworn February 2, 2024 are inadmissible hearsay and should be struck. Paragraph 9 and Exhibit B to the affidavit give hearsay evidence about a police complaint that a resident, Mr. Den Ouden, made on behalf of a unit owner, Mr. Nguyen, to allege that PCC 96’s directors and management engaged in improper and bad faith conduct. In addition, paragraphs 12, 13, 20 and 21 to the affidavit contain hearsay of a conversation between Ms. D’Souza, Mr. Den Ouden, and another resident, Mr. Le on December 16, 2023 in which serious allegations of improper conduct by PCC 96’s board were raised. As set out earlier, I decline to admit the recording of this December 16, 2023 meeting (attached as Exhibit C to this affidavit) that Mr. Leuzzi did not attend. All of these facts are clearly contentious. No affidavit was sworn by Mr. Den Ouden, Ms. Nguyen, Ms. D’Souza, or Mr. Le to describe the police report or the conversation, respectively. Accordingly, I decline to admit any of this hearsay that raises serious and controversial allegations of wrongdoing by PCC 96 that has denied the allegations.

[16] I am prepared to allow as narrative paragraphs 18 and 19 to Mr. Leuzzi’s affidavit sworn March 11, 2024 that excerpts some of what was discussed during the October 18, 2023 townhall meeting that he captured in an audio recording for which he prepared a chart of time stamps of certain statements made at the meeting. But paragraphs 20 and 21 to the affidavit seek to give hearsay of what Ms. D’Souza, Mr. Den Ouden, and Mr. Le said at the December 16, 2023 meeting that was audio recorded and time stamped. In my view, paras 20 and 21 and Exhibits E and F should all be struck as inadmissible hearsay on contentious matters that are not appropriate for affidavits on the applications.

[17] Finally, I am satisfied that paras 6 and 8 to Mr. Leuzzi’s affidavit sworn October 23, 2024 that describe certain messages that Mr. D’Souza sent on May 13, 14 and 20, 2024, respectively should be struck as inadmissible hearsay on contentious matters. The messages raise allegations of wrongdoing by PCC 96’s board that are disputed and, therefore, controversial and inadmissible in the applications.

c. Further Affidavit from PCC 96

[18] As set out below, I decline to consider the further affidavit of Piotr Gromek affirmed December 9, 2024 and the further responding affidavit of Mr. Leuzzi sworn December 10, 2024.

[19] In his December 9, 2024 affidavit, Mr. Gromek explains that someone named “Carmine Leuzzi” recently tried to “friend” his 25-year-old daughter for a second time on her Facebook account to connect with her on the social media networking service (i.e., as shown in a screen shot of the Facebook account). Mr. Gromek’s daughter does not know Mr. Leuzzi who, therefore, would not seem to have a legitimate reason to connect with her. Mr. Gromek suspects that Mr. Leuzzi deliberately tried to “troll” him by accessing the daughter’s Facebook account to post disruptive comments to upset him and members of his family shortly before PCC 96’s annual general meeting that was scheduled to take place on December 19, 2024 (i.e., just after the applications were heard on December 11 and 12, 2024). In an affidavit sworn December 10, 2024, Mr. Leuzzi responded by denying that he tried to friend Mr. Gromek’s daughter, produced screen shots of his own Facebook account showing no pending requests to friend her, and suggested that someone else must have fraudulently used his name and a fake Facebook account to connect with the daughter.

[20] The balance of Mr. Gromek’s December 9, 2024 affidavit sets out unproven allegations of wrongdoing by a person who is believed to be Mr. Leuzzi based on speculation rather than any demonstrable evidence. Mr. Leuzzi denies these allegations in his December 10, 2024 affidavit.

[21] The affidavits clearly give conflicting evidence and raise credibility issues that cannot be reconciled on the documentary record. In addition, the affidavits address speculative allegations. Given the nature of this evidence, I decline to consider it on the applications at this time.

PCC 96’s Application Should Not be Stayed

[22] For the reasons that follow, I do not accept Mr. Leuzzi’s submission that the court should stay PCC 96’s application (CV-23-3953) to have the matter proceed to mediation and arbitration under s. 132 of the Act.

[23] When the applications returned for hearing, Mr. Leuzzi argued that the court should stay PCC 96’s application as the disputes in that matter should be referred to mediation and arbitration under ss. 132(4) of the Act, which provides as follows:

132(4) Every declaration shall be deemed to contain a provision that the corporation and the owners agree to submit a disagreement between the parties with respect to the declaration, by-laws or rules to mediation and arbitration in accordance with clauses (1)(a) and (b) respectively.

[24] By enacting ss. 132(4) of the Act, the legislature sought to resolve disputes arising within a condominium community through the more informal procedure of mediation and arbitration: McKinstry v. York Condominium Corp. No. 472 at para 19. To attain this remedial objective, the mediation and arbitration requirement under ss. 132(4), which applies to disagreements between owners and the condominium corporation, should be given a fair, large and liberal construction: s. 10 of the Interpretation Act, RSO 1990, c. I.11; McKinstry at para 19. The court has the discretion to stay a proceeding: s. 106 of the Courts of Justice Act, RSO 1990, c. C.43. The following criteria are considered in deciding whether to stay a proceeding on the basis of an arbitration clause: 1) is there an arbitration agreement; 2) what is the subject matter of the dispute; 3) what is the scope of the arbitration agreement; 4) does the dispute arguably fall within the scope of the arbitration agreement; and 5) are there grounds on which the court should refuse to stay the action: Haas v. Gunasekaram, 2016 ONCA 744 at para 17.

[25] As explained below, I am satisfied that Mr. Leuzzi waived the application of ss. 132(4) by not raising it earlier and by consenting to have both applications heard together. I would add that neither party asked to convert the application to an action or to seek the trial of an issue.

[26] In my view, Mr. Leuzzi must be taken to have waived the application of ss. 132(4) as he raised it after responding to PCC 96’s application by serving his affidavits and conducting cross-examinations. By then, it was far too late to raise the issue: McKinstry at para 44. Moreover, he consented to have PCC 96’s application and his cross-application heard together. At the request of both parties, Tzimas J. granted a consent order dated September 18, 2024 for the applications to be heard together and for the affidavit and cross-examination evidence for each application to be used in the other. In the circumstances, I am satisfied that it would be unfair and unreasonable to stay PCC 96’s application at such a late stage after it had been readied for hearing together with Mr. Leuzzi’s cross-application with the consent of both parties.

[27] Notably, Mr. Leuzzi’s cross-application seeks an oppression remedy under s. 135 of the Act that is not subject to ss. 132(4) and, therefore, need not be referred to mediation and arbitration: McKinstry at paras 37-42; Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636 et al., 2019 ONSC 1827 at para 64, affirmed 2020 ONCA 612; Ryan v. York Condominium Corporation No. 340, 2016 ONSC 2470 at para 6; Leeds Standard Condominium Corp. No. 41 v. Fuller, 2019 ONSC 3900 at para 33.

[28] Taking everything into account, I am satisfied that it would be unfair and impracticable to stay PCC 96’s application at this time for the purpose of referring the matter to mediation and arbitration: MDG Kingston Inc. v. MDG Computers Canada Inc., 2008 ONCA 656 at para 36, leave to appeal refused [2010] SCCA No. 94. Given Mr. Leuzzi’s significant delay in raising the ss. 132(4) issue, and in light of his consent for PCC 96’s application to be heard together with his cross-application that is not subject to ss. 132(4), I find that he effectively waived the ss. 132(4) issue. Accordingly, I decline to stay PCC 96’s application at this time.

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Date: June 17, 2025
M.T. Doi

End of decision.