Condo Law Digest – March 2017

Caterpillar 345B excavator & 740 dumper, 29 January 2009.jpgNiagara North Condominium Corporation No. 6 v Temideo, 2017 ONSC 897
Decision Date: February 7, 2017
http://canlii.ca/t/gxch8

The defendant owns a condominium in NNCC No. 6 that is rented to Kimberly Watson and her adult son Robert James. James, the grandson of the defendant, suffers from health issues which make it impossible for him to live on his own. In the spring of 2013 the unit below the defendant’s was rented to a new tenant. Both the new tenant and Ms. Watson complained to the property manager about excessive noise coming from the other’s unit. In this action NNCC No. 6 seeks an order that Ms. Watson move out of the unit or refrain from making excessive noise.

Based on the evidence provided to him, Justice Taylor found that Ms. Watson made excessive noise in the unit from fall 2013 to 2015. Since then there have been no further noise complaints against her. Justice Taylor declined to evict Ms. Watson and her son as such “draconian” remedies should be reserved for when there is an ongoing refusal to comply with rules. Justice Taylor let stand a lien of  $1714 in legal costs against the defendant’s unit.

Comment: Justice Taylor limited the costs of the application to a modest $2500, saying that, “a less heavy-handed approach might very well have avoided an application to the court.”

Otomic Contractors Ltd. v Royal 7 Developments Ltd., 2017 ONSC 1001
Decision Date: February 10, 2017
http://canlii.ca/t/gxj76

The plaintiff, an excavating contractor, was hired to work on Phase 1 of  a construction project being developed by the defendant. The parties’ contract contemplated that Otomic might continue to work on Phase II, but nothing was formalized. Things started out well. Otomic completed the work on Phase I and started on Phase II. After a number of months the relationship broke down and Royal 7 delayed payment of Otomic’s invoices or paid only portions of them. At some point the parties may have held a meeting to discuss their differences, although what was said at the meeting, who attended, and even whether a meeting took place, is in dispute. In this action Otomic claims that it is owed about $218,000 for work completed and seeks a declaration that it is entitled to a construction lien. Royal 7 has counterclaimed for about $274,000 on the grounds that it had to retain another contractor to finish the job that Otomic should have done, and that Otomic over-charged them for work completed.

Justice Mulligan found in favour of Otomic, saying that Royal 7 could not hold them responsible for the cost of continuing the excavation work on Phase II. He rejected the counter-claim as there was no evidence that Otomic over-charged Royal 7. He allowed Otomic’s lien and encouraged the parties to settle the issue of costs themselves.

Vitz Holdings  Inc. v. Toronto Standard Condominium Co. No. 1530, 2017 ONSC  1173
Decision Date: February 14, 2017
http://canlii.ca/t/gxlwr

The applicant owns a commercial unit in TSCC No. 1529 where he proposes to set up a dentist’s office. The construction of the office would require boring through the floor/ceiling of TSCC 1530 to install plumbing, power lines, insulation, etc. TSCC 1530 has granted an Easement to the owners of TSCC 1529 to install various utilities. TSCC 1530’s consulting engineer has approved the plans and suggested some changes, which the applicant has accepted.

The applicant also owns 4 parking spaces at TSCC 1530, and on this basis TSCC 1530 argues that the applicant is an “owner” of TSCC 1530 should comply with Section 98 of the Condominium Act. This would mean that the applicant must get the approval of the Board to make his alterations. TSCC 1530 also takes the positions that the applicant is not a beneficiary of the Easement, and that under a Shared Facilities Agreement he needs the consent of TSCC 1530 to make any “major change.”

Justice Penny found that it was simply “fortuitous” that the applicant owned parking units in TSCC 1530; he is entitled to the Easement; he does not have to comply with Section 98; and the proposed work is not a “major change.” The judge also granted costs of $9000 to the applicant.

Comment: I have no idea (and the written record gives no clue) as to why TSCC 1530 took the position that it did.

About the image: By bilbobagweedLoading, CC BY 2.0, Link

Posted in Condo Disputes.

4 Comments

  1. As to Niagara North C.C. # 6 v Temideo (sic et al) 2017 ONSC 897, condo lien disputants will be obtaining an extremely short 30 DAY opportunity to lodge an appeal of such to the CAT tribunal. Many will fail to do so quickly nor take advantage of a suspensive provision. Unfortunately the Temedio/Temideo ruling ( the judgment cites both spellings & once even misspells lien as ‘LEAN’) respectfully validates a voodoo lien abuse. An Ottawa decision did so and with similar proof-reading half a decade ago. Both judgments avoid discussion allowing an appeal court or the public to follow their claim to be able to judicially legislate such. Maybe another strong argument to behave & try for a Win-Win instead of an adjudicated Twilight Zone. Bob Driscoll

  2. As to Vitz v TSCC 1530 : a guess is that a voodoo section 98 CEMA document would allow TSCC 1530 to take charge of the transaction & maybe future ones, would trigger M&A for post-documentation disputes, & would potentially suck up lienable enforcement charges from the vulnerable plaintiff. Bob Driscoll

  3. Quite welcome & I enjoy your articles. A CEMA common element modification agreement first platformed under the Condominium Act 1998, allows a legitimate registered authorization backed by lienable charge-backs without a court order, to avoid what would be an individual’s illegal trespass usage of common element. Eg to authorize & condition an owner to enclose a balcony that would have been merely a bare exclusive use common element lacking such authority.

    Used lawfully a CEMA is an agreement deemed to include mediation & arbitration under the Act’s subsection 132(2)3. Used unlawfully as held here, it would respectfully be an abuse with a parallel to the liens on paid-up units in YCC 482 v Christiansen 2003 ( “ As owner you are hereby liened for being $ 0 in default ! As lender you can have the lien discharged by paying $ 0 ! “ ).

    Lien abuse & easement battles resonate in my own pre-condo covenant-connected Building Scheme universe. Please keep the articles coming. Bob Driscoll

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