Condo Law Digest – May 2018

Wavy fence and a wall BW version.jpg

Omotayo v. Da Costa, 2018 ONSC 2187
Decision Date: March 29, 2018
http://canlii.ca/t/hrb84

The cases arises from a contentious board meeting of Metro Toronto Condominium Corporation No. 1292 in September 2011. Ms. Omotayo had recently been removed from her position as Chair and Mr. Da Costa had sent the Board a letter advising that he wished to resign as President. Nevertheless, both showed up at the meeting and began to argue with one another. Mr. Da Costa “lost it” (in his words) and struck Ms. Omotayo on the head with a chair. The police were called, and Mr. Da Costa was charged with three offenses. Ms. Omotayo made a claim against Mr. Da Costa and against MTCC 1292 for failing to protect her from the assault. Mr. Da Costa filed a cross-claim against MTCC 1292 for contribution and indemnity.

In this proceeding, MTCC 1292 has brought a claim for summary judgment to dismiss Ms. Omotayo’s claim. (Ms. Omotayo did not oppose the motion. She settled her claim with MTCC 1292 prior to this hearing. However Mr. Da Costa opposed the motion for summary judgment, and so the hearing went ahead.) Justice Nishikawa granted the motion for summary judgment, saying that MTCC No. 1292 did not breach a duty of care to Ms. Omotayo, as the corporation could reasonably expect board members to refrain from assaulting one another.

Comment: Costs of $6500 were payable by Mr. Da Costa to MTCC 1292. Here’s hoping that the current configuration of the Board manages to hold calmer meetings.

Toronto Standard Condominium Corporation No. 2256 v. Paluszkiewicz, 2018 ONSC 2329
Decision Date: April 12, 2018
http://canlii.ca/t/hrg2w

This is an appeal of an arbitration award. TSCC No. 2256 is a small condominium with four units. Mr. & Mrs. Paluszkiewicz were among the first owners. In October 2012 they delivered a renovation proposal with two preliminary drawings to the Board, and a month later they entered into a Section 98 Agreement to do the renovations. About one year later a new Board was convened. In March 2014 the Corporation notified the Paluszkiewiczs that their renovations did not comply with the Section 98 Agreement. Mediation failed, and in June 2015 the parties began arbitration.

The Paluszkiewiczs submitted that they had provided detailed construction drawings to the old Board in November 2012, and that the now-completed renovations matched these drawings. The Corporation argued that the meeting of Mr. Paluszkiewicz and the old Board to approve the drawings had not taken place. Gerry Caplan, the arbitrator, found in favour of the Paluszkiewiczs and ordered the Corporation to pay them $216,000 in costs.

In September 2017 the Corporation asked the arbitrator to set aside the award on the grounds that the Paluszkiewiczs had committed fraud. The Corporation produced a sworn affidavit from the old Board members stating that they did not discuss building plans with Mr. Paluszkiewicz. Mr. Caplan declined to set aside his award, and TSCC No. 2256 made this appeal. Justice Perell dismissed the application. Just because two parties have different memories of an event, he reasoned, it does not follow that one of the parties is lying or has committed fraud.

Comment: While no costs decision was issued for this appeal, that old warning against “throwing good money after bad” keeps running through my head.

Furr v. Duhamel, 2018 ONSC 1780
Decision Date: April 4, 2018
http://canlii.ca/t/hrbqm

This is a dispute between owners of a unit in “King’s Landing,” a townhouse development in Ottawa, and the Co-Tenancy Committee that manages shared property and expenses. (Just to be clear, the development is not a condominium corporation.) The main issue concerns the fence along the eastern boundary of the property. The applicants argue that the as-built fence and retaining wall are not included as shared property in the Co-Tenancy Agreement, and therefore maintenance of the fence is not a shared expense. In effect, by treating the fence as shared property, the Committee is favouring the owners whose property is adjacent to the fence (and who alone should bear the expense of repairing it.) They also allege bad faith on the part of the Committee. The Committee maintain that they have always acted in good faith and relied upon legal advice.

Justice Beaudoin found that the specific section of the Co-Tenancy Agreement that refers to the fence was ambiguous. However, reading the Agreement as a whole, together with other relevant documents, it is clear that the intention of the Agreement was for the fence to be treated as shared property. He also found the allegations of bad faith to be without merit.

Comment: Some passages of the decision indicate a long and acrimonious dispute. (“The Applicants declined offers to sit on the Committee and preferred to engage in a campaign against the Committee members that led the community to eventually vote for, and approve, policies on requests for information and against harassment.”) No decision yet on costs.

About the image: By W.carterOwn work, CC BY-SA 4.0, Link

Posted in General.

One Comment

  1. Furr v Duhamel ( Building Scheme duties dispute) : Very alert pick-up ( & well worth reading ) of what rarely hits Ontario civil courts these days. Respectfully, these Building Scheme dissenters have a lot to take to an appeal court. Ironically the godfather of Ontario Building Schemes ( I live in one such ) in 1913’s Lorne Park lower court reference, addressed a central issue of what is “common land”. Wm. Edward Middleton answered that question with a fluid, absolutely dazzling application of the 2 then-recent English decisions which until 1979 & 2016 were the Gold Standard of English/Welsh/Commonwealth Building Scheme jurisprudence. Middleton ( 1860-1948) was appointed to a predecessor of today’s Ontario Court of Appeal. He adjudicated leading Building Scheme litigation as well as the wild Depression era Baby Derby & corn flakes wars disputes. Middleton’s biography characterized him as setting a high standard of courtesy & civility. He did not live to see the ( Beach of Pines Building Scheme ) bigotry clause outcomes below Canada’s Supreme Court. He might ( ? ) not have been impressed with this latest outcome. Bob Driscoll

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