Condo Law Digest – November 2017

Basketball court with puddles after a rainstorm, 2014 09 21

Weir v. Peel Condominium Corporation No. 485, 2017 ONSC 6265
Decision Date: October 20, 2017
http://canlii.ca/t/hmnjf

Ms Weir is the owner of a penthouse unit in PCC No. 485. In June 2015 she noticed water pooling on the floor of her solarium during heavy rainfall from the southeast. The problem continued for about two years. Ms Weir was unable to use her solarium and hesitated to spend time away from her unit during rainstorms. (I will not summarize the two years of investigations, attempted repairs, and back-and-forth communication among property managers, the board, engineers for both parties, and several lawyers.)

In this action, Ms Weir claims that PCC No. 485 1) failed to meet its duty to maintain common elements; 2) entered her unit unlawfully; 3) levied arbitrary penalty fees; and 4) attacked her credibility. PCC No. 485 denies that its conduct was oppressive. Justice Petersen agreed and dismissed the application for the following reasons: 1) While the Corporation’s first response to the problem was “far from diligent” they did ultimately respond appropriately to what all agree was a problem with no obvious solution. 2) Although the Corporation did make one unlawful entry to Ms. Weir’s unit, a single incident does not amount to oppressive conduct. 3) Given that Ms. Weir retained counsel and commenced litigation while the Corporation was trying to discover the source of the leaks, it was not unreasonable for the Corporation to seek indemnification for its actual legal costs. (This was a “strong-arm tactic,” but permitted by the Condominium Act). 4) The Corporation’s expressed suspicion that Ms. Weir was responsible for the water leakage because she failed to seal the outside sliders on her windows was not evidence of harsh or vindictive conduct – especially as they continued to investigate the source of the leaks.

Comment: By mutual agreement, the parties did not pursue mediation.

Wexler v. Carleton Condominium Corporation No. 28, 2017 ONSC 5697
Decision Date: Sept 25, 2017
http://canlii.ca/t/h6g9f

Ms Wexler sued CCC No. 28 in small claims court for about $2500. (I don’t have the details.) She was not successful, and the judge awarded the defendant costs in the amount of $20,000. Ms Wexler appealed the costs award. In this decision, Justice O’Bonsawin set aside the small claims court cost decision and instead ordered her to pay costs in the amount of 15% of her original claim (so about $375).

Comment: I’m curious as to whether the parties attempted mediation, and if not why not. While I don’t know the details of Ms Wexler’s claim, spending $20K to defend a $2500 claim does not seem like a good business decision.

Keele Medical Properties Ltd. v. Toronto Standard Condominium Corporation No. 1786, 2017 ONSC 6137
Decision Date: October 16, 2017
http://canlii.ca/t/h7234

This is a decision on costs following from a March 2017 decision regarding a condominium lien of about $243,000. [http://canlii.ca/t/h35m3] At that time, Justice Chiappetta found that the lien was valid and enforceable. TSCC No. 1786 asked for costs of about $164,000 on a full indemnity basis. Both parties made offers to settle before the trial. Chiappetta found that it was “fair and reasonable” for TSCC No. 1786 to seek full indemnity costs, and that the time and hourly rate were likewise reasonable.

About the Image: Basketball court with puddles after a rainstorm, 2014 09 21 by booledozer [Public domain], via Wikimedia Commons

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