Timothy M. Duggan

The Court of Appeal for Ontario considered an appeal by Peter Tak Ming Lee and Mun Chung Leung from a judgment granting York Region Standard Condominium Corporation No. 972 possession of their unit and leave to issue a writ of possession, unless the appellants discharged a lien.

The appeal raised issues of trial judge bias, disregard of evidence, and the validity and calculation of the lien.

The court rejected the bias and evidentiary grounds, but found a calculation error in the lien amount, requiring a reduction.

The appeal was allowed in part, with no order as to costs.

The Atkinson Housing Co-operative Inc. applied for a declaration that no member occupied a specific three-bedroom townhouse and for a writ of possession.

The respondent, Hector F. Osorio, claimed to be a member entitled to occupy the unit.

The court found no merit in Osorio's claim, determining he had not been a member since 2011 and had formally resigned in 2018.

The Landlord and Tenant Board had previously found Osorio was not a member and ordered his eviction, but that decision was overturned on appeal due to the Board's lack of jurisdiction to evict non-members.

The Superior Court, exercising its jurisdiction under the Co-operative Corporations Act, confirmed Osorio's non-member status and granted the co-op's application for a declaration and writ of possession, finding no exceptional circumstances to deny the writ.

This case concerns an action for wrongful dismissal, breaches of human rights legislation, and claims for moral and punitive damages.

The plaintiff, a former superintendent, alleged harassment and assault by tenants, leading to mental health issues and subsequent termination.

The court found the employer wrongfully dismissed the plaintiff, that the termination clause was unenforceable, and that the employer's defense of frustration of contract failed.

The employer was found to have breached its statutory obligations by failing to protect the employee from third-party harassment.

Damages were awarded for wrongful dismissal, human rights violations, and moral damages for the bad faith manner of termination.

Claims for intentional infliction of mental suffering and punitive damages were dismissed.

The defendant, International Property Group (Toronto) Ltd., brought a motion to dismiss the action and its counterclaim, arguing that the litigation had settled when it purchased the subject property under a revised agreement of purchase and sale.

The plaintiffs, Bradley Archibald Sumarah and Robert Steven Andrew Clarke, disputed this, contending the subsequent sale was merely mitigation of damages from the aborted first transaction.

The court agreed with the defendant, finding that the parties had entered into a binding settlement agreement, the primary terms of which included the revised sale, mutual releases, and dismissal of the litigation without costs.

The action and counterclaim were dismissed.

The plaintiffs sued the defendant for breach of contract after an aborted real estate transaction.

The parties subsequently negotiated a revised agreement of purchase and sale, which eventually closed.

The plaintiffs later amended their claim, arguing the subsequent sale was merely in mitigation of damages and sought the difference in purchase price.

The defendant moved to dismiss the action, arguing the subsequent sale was part of a settlement agreement that resolved the litigation.

The court agreed with the defendant, finding that the objective interpretation of the parties' communications and conduct demonstrated an intention to settle the litigation by reviving the transaction, exchanging mutual releases, and dismissing the claims without costs.

The action and counterclaim were dismissed.

The applicant, a condominium unit owner, sought a declaration of oppression against the condominium corporation under s. 135 of the Condominium Act, alleging failure to address noise complaints, security concerns, and maintenance disparities between different buildings within the condominium.

The court dismissed the application, finding that the corporation acted reasonably in addressing noise issues and that the applicant's other complaints regarding security and maintenance did not constitute oppressive conduct.

The court applied the two-part test for oppression remedy, emphasizing the objective reasonableness of expectations and deferring to the board's business judgment in balancing the interests of all unit owners.

The appellant tenant sought a stay of an eviction order issued by the Landlord and Tenant Board (LTB) due to non-payment of rent.

The court applied the three-part test for a stay pending appeal, considering whether there was a serious issue to be tried, irreparable harm, and the balance of convenience.

The court found that the appellant failed to raise a serious issue on a question of law, as her grounds of appeal primarily involved questions of fact (misapprehension of evidence, novation).

Furthermore, the appellant did not provide sufficient evidence to establish irreparable harm beyond the inherent loss of a home in tenancy cases.

Considering the protracted nature of the dispute and the landlord's entitlement to resolution, the court dismissed the motion for a stay, concluding that it was not in the interests of justice to grant it.

The applicant, Polchil Homes Ltd., sought relief under the Condominium Act for oppression by the respondent condominium corporation, alleging unreasonable delay in renovation approval and unlawful lockout from its unit.

The applicant also sought damages under the Human Rights Code based on assigned claims from its principal and her fiancé.

The court dismissed the Human Rights Code claim, finding that such claims cannot be assigned to a corporation for civil proceedings.

The court also dismissed the claim regarding renovation approval delay, finding no oppressive conduct.

However, the court found that the corporation's act of locking the applicant out of its unit for 18 days was oppressive and unlawful.

As a remedy for this oppression, the court awarded $10,000 in general damages to the applicant and ordered the removal of $7,468.27 in legal fees charged back to the applicant's ledger by the corporation.

Following the dismissal of the plaintiff's motion for an injunction, the parties were unable to agree on costs.

The defendants sought substantial indemnity costs of $35,000, citing the plaintiff's uncooperative conduct and failure to produce affiants for cross-examination despite a court-ordered timetable.

The court awarded the defendants their costs on a substantial indemnity scale fixed at $35,000, finding the plaintiff's lack of cooperation glaring.

The court declined to order the plaintiff's principal personally liable for the costs, noting that the defendants' corporate remedies as minority shareholders remained to be decided.

The plaintiff employer brought a motion for an interlocutory injunction to shut down or restrict a competing deli opened by two former long-term employees.

The plaintiff argued the employees were fiduciaries.

The court found the employees were managers but not fiduciaries, as they lacked strategic authority and the employer was not peculiarly vulnerable to their departure.

The court also found the balance of convenience favoured the defendants and damages would be an adequate remedy.

The motion for an injunction was dismissed.

This decision addresses a motion to quash an appeal for want of jurisdiction, brought by Toronto Standard Condominium Corporation No. 1466 against Stuart Weinstein.

The Court of Appeal determined that section 49 of the Arbitration Act, 1991, applied, meaning leave was required for the appeal.

Stuart Weinstein, acting in person, then sought leave to appeal.

The court quashed the appeal and refused leave to appeal, finding that the criteria for granting leave were not met.

No costs were awarded.

The plaintiff sought costs following the dismissal of her motion for a mandatory interlocutory injunction against the defendant condominium corporation.

The motion was dismissed based on the defendant's undertaking to provide alternative accommodation.

The court found that although the defendant was technically the successful party, the plaintiff was entitled to costs because it was reasonable for her to seek court intervention and the dismissal was on terms.

The court awarded the plaintiff $25,000 in costs.

The plaintiff unit owner brought a motion for a mandatory interlocutory injunction against the defendant condominium corporation, seeking orders for expert opinions, alternative accommodation, and repairs to her unit following water damage and mould contamination originating from the common elements.

The court dismissed the motion, finding that the plaintiff failed to meet the high threshold of a strong prima facie case or demonstrate irreparable harm, particularly given the condominium corporation's undertaking to pay $100 per day for alternative accommodation and to repair the unit.

The moving defendant sought to set aside four default judgments obtained against him in 2011.

He argued that he was unaware of the defaults because his former lawyer failed to defend him or notify him of the proceedings, and improperly withdrew from the record.

The court applied the Mountain View factors and found that the defendant moved promptly upon discovering the judgments, had a plausible explanation for the default due to his counsel's inadvertence, and presented an arguable defence on the merits.

The court concluded that the interests of justice favoured setting aside the default judgments and notings of default.

The applicant condominium corporation sought an urgent case conference to schedule an injunction application to prohibit a requisitioned unitholders' meeting.

The applicant argued the requisition did not comply with the Condominium Act, 1998.

Over 70 unitholders participated in the case conference, raising concerns about management and short-term rentals.

The court scheduled the injunction hearing and set a timetable for the delivery of materials, urging the parties to communicate and resolve their issues amicably.

The applicant condominium corporation sought to prohibit the holding of a unitholders' meeting scheduled pursuant to a requisition.

The court issued an endorsement scheduling an urgent case conference and directed the applicant to provide notice of the conference to the affected parties.

The applicants sought a declaration that new condominium rules prohibiting transient or hotel-like use of units were invalid, arguing inconsistency with declarations allowing no minimum lease term.

The respondents contended the rules were consistent with provisions requiring units to be used as private, single-family residences.

The court found the respondents' interpretation reasonable, upholding the new rules, and granted the respondents' cross-application for compliance.

The Plaintiffs sought costs on a partial indemnity basis after the Defendants' anti-SLAPP motion to strike the Statement of Claim was dismissed.

The Defendants opposed, citing the presumption against costs under s. 137.1(8) of the Courts of Justice Act and their partial success in striking certain paragraphs.

The court found that despite the expressions not being related to public interest, the proceeding bore indicia of a SLAPP suit, including a history of litigation to silence critics, a power imbalance, and a punitive purpose.

Considering the legal uncertainty surrounding s. 137.1 at the time and the Defendants' partial success, the court declined to award costs to the Plaintiffs.

A condominium corporation appealed from a damages award of $18,000 and sought leave to appeal a costs award of $17,000 made under section 134(5) of the Condominium Act, 1998.

The respondent unit owners had leased their condominium to tenants who vandalized common elements.

The corporation claimed $33,381.28 in damages and $52,637.56 in costs.

The application judge found certain repair expenditures disproportionate and reduced the damages award.

The Court of Appeal allowed the appeal, finding the application judge erred in assessing security camera installation costs and in conflating two distinct types of costs under the Act.

The damages award was increased to $25,458 and the costs award was increased to $34,000.

York Condominium Corporation No. 201 (YCC 201) sought leave to appeal an arbitration award and to have it set aside.

The arbitration concerned disputes among three condominium corporations regarding their obligations to fund a shared recreation complex under a shared facilities agreement (SFA).

The Arbitrator had ruled that the SFA did not require audited financial statements or compliance with the Ontario Business Corporations Act (OBCA) as preconditions for monthly operating expense payments.

The court found that YCC 201's grounds for appeal raised questions of mixed fact and law, not pure questions of law, and were therefore not appealable under s. 45(1) of the Arbitration Act, 1991.

Alternatively, the Arbitrator's interpretation of the SFA was deemed reasonable.

The application to set aside the award, based on allegations of unfair treatment due to the Arbitrator's procedural rulings, was also dismissed, as the rulings merely determined the scope of an arbitration phase and did not preclude YCC 201 from raising issues later.