Condo Law Digest – March 2018


Scicluna v. Solstice Two Limited, 2018 ONCA 176
Decision Kate: February 23, 2018

This is an appeal by two parties against the decision made by Justice Brown in Scicluna v Solstice. Ms. Scicluna agreed to purchase a condominium from Solstice Two and advanced just over $293,000. She lost her job and was unable to pay the remaining $78,000. At first, Solstice Two agreed to return to Ms. Scicluna all of the money she had advanced, less $30,000, provided that the condominium was resold. It was indeed resold (for $435,000). However Ms. Scicluna refused to sign the release document, mistakenly believing that Solstice would keep $60,000 rather than $30,000. She commenced a claim, and in response Solstice invoked the forfeiture provision in their original agreement, demanding to retain every cent that Ms. Scicluna had paid. Justice Brown granted Ms. Scicluna relief from forfeiture but instead of giving the money to Ms. Scicluna, she gave it to Ms. Scicluna’s trustee in bankruptcy, Keven Thatcher and Associates (KTL).

In this action, Ms. Scicluna argues that Justice Brown erred in giving the money to KTL, and Solstice argues that Ms. Scicluna should not have been granted relief from forfeiture. The appeal judges upheld Justice Brown’s decision. Regarding the claim by Solstice, it would be a “grossly disproportionate windfall” for them to retain the full amount paid by Ms. Scicluna. Regarding Ms. Scicluna’s appeal, she did not fully disclose to KTL her claim to the deposit on the condo, or her lawsuits against Solstice. It would not advance the principles of the Bankruptcy and Insolvency Act for her to retain the funds.

Comment: Costs of $5000 each from Ms. Scicluna and Solstice were granted to KTL. The trial judge had declined to order costs, saying that the matter should have settled. (For anyone keeping track, there has now been a full trial and an appeal over a matter that “should have settled.”)

Axess Law Professional Corporation v. Sood
Decision Date: February 1, 2018

This is an appeal of a small claims court decision. Mr. Sood purchased a condominium in 2015 and was represented in the transaction by Axess. Two different taxes were due on the purchase: Ontario Land Transfer Tax and Municipal Land Transfer Tax. As it happened, on the very day that Mr. Sood’s transaction closed, an automatic software update in the system at Axess introduced an additional step in order to have both taxes included on the Trust Ledger Statement. When the transaction closed, the Transfer document included both taxes, but Axess never received the funds for the Municipal Transfer tax from Mr. Sood. Instead the funds were automatically paid out to the tax authority from the law firm’s own accounts.

Three months later, when Axess noticed the error, they requested payment from Mr. Sood. He refused, and Axess commenced a small claims court action. Mr. Sood’s appeal relies on Subsection 2(1) of the Solicitor’s Act. The legal arguments turned on whether or not the tax payment should be considered a “disbursement.” In the end, Justice Matheson denied the appeal.

Comment: Liability for tax goes to the purchaser, not their lawyers.

Brief Notices

An appeal has been denied in White Snow and Sunshine Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 561. Costs of $10,000 were awarded to the respondent. I summarized this dispute over access to condominium amenities in September 2017.

Manorama Sennek’s appeal from the judgment declaring her to be a “vexatious litigant” has been dismissed. Carleton Condominium Corporation No. 116 has spent “well over” $100,000 on disputes with her.

About the image: Lobby of the Old Commercial Appeal Building, Memphis, 1961 by ZeamaysOwn work, CC BY-SA 3.0, Link

Condo Law Digest – January 2018

Déneigement westmount.jpg

C.M. Callow Inc. v. Tammy Zollinger et al., 2017 ONSC 7095
Decision Date: November 27, 2017

C.M. Callow Inc. is a property maintenance company that provided winter and summer maintenance at a condominium complex in Ottawa, managed by the Condominium Management Group (CMG). CMG terminated the two-year winter maintenance contract with Callow earlier than expected, while Ms. Zollinger was property manager. The issues in this trial were whether CMG was in breach of contract, and if so, what are Callow’s damages?

Callow’s position is that the CMG decided to terminate the winter maintenance contract in March 2013 but did not advise him until Sept 3013. Between March and September, while Callow was fulfilling the summer maintenance contract, Ms. Zollinger and certain board members falsely represented that the winter maintenance contract would be renewed or extended. During this time, Callow provided extra “freebie” services to enhance the property, as an incentive to CMG to renew the two-year contract.

CMG’s position is that Callow’s winter maintenance work did not meet their expectations, and that they were within their rights to terminate the contract with 10-days notice, and they did not falsely represent nor act in bad faith.

This case hinged primarily on two things: the evidence (including emails exchanged among board members and the parties’ credibility), and some fundamental principles of common law contracts. Justice O’Bonsawin favoured the evidence provided by Callow, saying that witnesses for the defendant were prone to exaggeration and answered questions in ways that were at odds with the written record. She found no evidence that Callow’s work was below standard. Furthermore, parties to a contract have a duty to act honestly in their dealings and not seek to undermine the other’s interests in bad faith. CMG actively deceived Callow by not disclosing their intention to terminate the contract. Justice O’Bonsawin awarded damages of just over $80,000 (the value of the contract after expenses and the value of equipment leased in anticipation of fulfilling the contract) to Callow.

Comment: Speak with a lawyer before breaking a contract, no matter how reasonable you believe your position to be.

About the image: Snow removal in Westmount (Montreal) Canada in 1944 by Conrad PoirierThis image is available from Bibliothèque et Archives nationales du Québec
Public Domain, Link

Condo Law Digest – October 2017

"For Sale" sign at Berkley Mill, Norfolk, Virginia, April 16, 1927 (16052444819).jpg

Shah v. Southdown Towns Ltd., 2017 ONSC 5391
Decision Date: Sept 11, 2017

In the fall of 2016 each of the five applicants entered into a Purchase and Sale Agreement to buy a pre-construction condominium unit and a parking spot from Southdown Towns. (Mr. Shah was the first of the five applicants to enter into the Agreement, and he dealt with Southdown on behalf of the others.) Each purchaser paid a deposit and agreed to provide proof of mortgage approval within 10 days of the acceptance of the Agreement. If this condition was not met, Southdown Towns had the option to terminate the Agreement. In Feb 2017 Southdown sent Mr. Shah an email requesting confirmation of mortgage approval. A month later counsel for Southdown sent a letter to each of the applicants requesting the mortgage approval by March 30, and warning them that Southdown Towns would exercise its rights to terminate the Agreement if they did not comply.

Mr. Shah claims that he snail-mailed the documents on March 28, but provided nothing to support this claim. On March 31 he dropped off the documents at the sales center. These documents proved to be inadequate. On the same day Southdown Towns wrote to each purchaser, terminating the Purchase and Sale Agreement. The applicants finally provided valid mortgage approvals in mid-April. In this action, the Applicants ask the court for “relief from forfeiture;” that is, for the Purchase and Sale Agreement to go ahead. They estimate that each of them will lose $150,000 to $200,000 in potential value (the increase in value of the units between time of purchase and move-in date) if relief is not granted.

Justice Emory declined to grant the requested relief, saying that the Applicants had not exercised reasonable diligence to comply with the Agreement

Comment: The Applicants will receive their deposits back.

Patel v. Davis, 2017 ONSC 5496
Decision Date: Sept 22, 2017

In June 2017 Mr. Patel entered into a valid and enforceable agreement to purchase a condominium unit from Mr. Davis, with a closing date of August 31, 2017. Sometime in July Mr. Davis seems to have had a change of heart and refused to complete the sale. In this action, Mr. Patel seeks an order that Mr. Davis deliver clear title to the property.

Justice Peterson granted the application, stating that the condominium is sufficiently unique (large footprint, two bedrooms, overlooking a park and with a wheelchair-accessible bathroom), that another comparable property would not be readily available.

Comment: Mr. Davis was not represented by counsel, did not file a defense, and did not appear in Court.

Zordel v. MTCC No. 949, 2017 ONSC 5544
Decision Date: Sept 19, 2017

The applicants are owners of units in MTCC No. 949. In June 2016 the Corporation switched its cable TV and internet provider from Rogers to a new service provider, Frontline. As previously, the costs for these services are charged as a common expense to unit owners. The applicants 1) challenge the jurisdiction of MTCC No. 949 to enter into this agreement. 2) Assert that MTCC No. 949 should have sought the approval of 2/3s of unit owners before making the switch. 3) Seek an order requiring MTCC No. 949 to allow them to opt out of the service. 4) Submit that MTCC No. 949 has acted oppressively towards them. 5) Seek clarification from court as to owner expectations when meetings are requested.

Justice Cavanagh dismissed the application: 1) MTCC No. 949 does have jurisdiction, according to Subsections 17(1) and (2) of the Condominium Act, its own by-laws, and the decision in Mancuso v. York Condominium Corp. No. 216. 2) MTCC No. 949 did not require approval of 2/3s of unit owners as the change in service is not “substantial.” 3) As MTCC had jurisdiction to make the bulk services agreement, unit owners do not have the right to opt-out of it. 4) The conduct of MTCC No. 949 towards the applicants does not meet the threshold of oppression. 5) This case is not a proper one to clarify the issues around meeting requisitions by owners.

I missed this decision when it was released in July:

Carleton Condominium Corporation No. 282 v Yahoo! Inc., 2017 ONSC 4385
Decision Date: July 18, 2017

In November 2016 an individual with the alias “Ian Fleming” sent emails to the owners and occupants of CCC No. 282, accusing the Board of unethical behaviour (accepting kickbacks) and harassment of staff. In this decision Justice Ryan Bell granted a “Norwich order” to CCC No. 282 requiring Yahoo Canada to disclose information necessary to obtain the identity of the author of these emails.

About the image: State Archives of North Carolina, No restrictions, Link

Condo Law Digest – September 2017

Münster, LVM, Skulptur -Körper und Seele- -- 2016 -- 5920-6.jpg

White Snow and Sunshine Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 561, 2017 ONSC 4558
Decision Date: July 28, 2017

The applicant owns the two commercial units in MTCC No. 561, a residential condominium. At present, the applicant’s employees are not allowed to use the condominium’s residential facilities (a swimming pool, a gym, squash court, etc.), although the applicant pays common expense fees. After unsuccessful negotiations with the Board, the applicant has brought this application to require that the corporation change its Declaration and allow his employees to use the recreational facilities.

Justice Lederer dismissed the application, drawing on Section 7(4) of the Condominium Act. He also noted a site specific by-law passed by the City of Toronto which required the developer of MTCC No. 561 to provide recreational space for the exclusive use of the residents of the building.

Comment: Costs of $11,000 were ordered payable by the Applicant.

Metropolitan Toronto Condominium Corporation 1067 v. 1388020 Ontario Corp., 2017 ONSC 4793
Decision Date: August 14, 2017

The defendant owns 8 condominium units and 3 parking spaces in MTCC No. 1067. This dispute is over the defendant’s unpaid common expense fees, interest charges, and additional expenses. The parties resolved most of their disagreements before appearing in front of the judge. The remaining issues were the rate of interest charge, additional claimed expenses, and legal costs. In particular, the defendant claimed that the rate of prime plus 30% specified in the corporation by-laws, was excessive.

Justice Ferguson allowed the interest rate to stand but disallowed the corporation from claiming additional “collection” expenses. He also awarded costs of $30,000 to the plaintiff.

Comment: Familiarize yourself with a condominium’s Declaration and By-laws before moving in so fees and interest charges don’t come as a surprise!

Brief Notices

The LSUC has found that a lawyer engaged in professional misconduct by breaching the trust requirements for deposits under the Condominium Act, accepting cash payments over $7500, making unauthorized withdrawals from trust, and allowing another lawyer (neither an employee nor a partner) to use his trust accounts. Read the full summary of the decision. The penalty is a 2-month suspension, 6-months of financial reporting, and a spot audit requirement.

An appeal has been denied in Cheung v. York Region Condominium Corporation No. 759. (I summarized this parking dispute in the Mid-summer 2016 post.)


About the Image: Sculpture “Body and Soul” (Duk-Kyu Ryang, 2015) in front of the office building of the LVM, Münster, North Rhine-Westphalia, Germany, by Dietmar RabichSelf-photographed, CC BY-SA 4.0, Link

Condo Law Digest – Mid-summer 2017

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YCC No. 41 v Schneider, 2017 ONSC 3709
Decision Date: June 15, 2017

This conflict arises from an insect infestation. In October 2015 Justice Diamond ordered that the Schneiders permit YCC No. 41 and its agents to enter their unit no later than November 13 in order to conduct a “flush and vac” insecticide treatment. On October 28 the corporation sent the Schneiders a letter advising them that Orkin (the pest control company) would come on Nov 13 to prepare the unit, and that the treatment would take place on Nov 16. The letter included an “Orkin Preparation Sheet” which said that the occupants (and not Orkin) were required to prepare the unit. It is not clear what exactly happened on November 13 when personnel from Orkin, together with staff from YCC No. 41 showed up at the Schneiders’ door. The Schneiders may or may not have prepared the unit themselves, and they may or may not have refused entry.

In this application, YCC No. 41 sought an order that the Schneiders had breached Justice Diamond’s order of October 2015. (In the original application, they also sought an order requiring the Schneiders to vacate and sell their unit, but later gave up this request.) After a 1-day trial, Justice Diamond dismissed YCC No. 41’s request for an order, citing the confusion created by the contradiction between the letter (stating that Orkin would prepare the unit) and the Preparation Sheet (stating that the occupants should prepare the unit.) He suggested that each party bear their own costs.

Comment: Litigation (complicated by poor communication) is a rather blunt means for gaining cooperation. One can only hope that the unit was treated sometime before the June 2017 trial.

Louiseize v Peel Condominium Corporation No. 103, 2017 ONSC 4031
Decision Date: June 29, 2017

This is a dismissal of an appeal to an arbitrator’s award. Mr. Louiseize purchased three units in PCC No. 103 between 2001 and 2004 and has been renting them to non-related tenants for as long as he has owned them. The condominium’s Declaration specifies that units are to be used as single-family dwellings only. However the condominium took no real action to enforce the declaration until October 2013. At the November 2016 arbitration, PCC No. 103 asked for an order requiring immediate compliance with the single family restriction. Mr. Louiseize asked for the right to continue renting to unrelated tenants for a period equal to half the time he had owned the units, or failing that, compensation of $600/month per unit for lost income for the same period of time. ($600/month is apparently the difference between the expected rent for a single family and the amount that unrelated tenants could be charged. Is anyone else reminded of that old joke about the man who killed his parents, then threw himself on the mercy of the court on the grounds he was an orphan?)

The arbitrator gave Mr. Louiseize until August 2017 to comply with the single family restriction and awarded PCC No. 103 costs of $30,000. In the appeal, Mr. Louiseize asked for 75 months to change the use of two of his units, and that each party bear their own costs and share the costs of the arbitration. Justice Gordon heard the appeal but dismissed it, saying that the arbitrator had made no errors in law or principle, and awarded PCC No. 103 costs of $8200 for the appeal.

Comment: With the popularity of AirBnB, I suspect we’ll see more corporations cracking down on the single family provisions in their declarations.


A costs award has been issued for Heyde v. Theberge Developments Limited, which was a motion to certify a class action suit. Justice Smith awarded costs of $56,000 to Heyde, despite the fact that they were only partially successful. The defendant had asked each party to bear their own costs.

I summarized CIBC Mortgages Inc. v. York Condominium Corporation No. 385 in November 2016, and wrote about the costs decision in January 2017. At the end of June the Ontario Court of Appeal dismissed appeals of both the original decision and the costs award.

About the Image: By Tomas erOwn work, CC BY-SA 3.0, Link

Condo Law Digest – June 2017

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Bomba-Bibi v. Brookfield Condominium Services Ltd., 2017 HRTO 513
Decision Date: May 8, 2017

Ms. Bomba-Bibi is an owner of a condominium unit in a building managed by Brookfield. In November 2015 and then in December 2015 she received letters from the corporation and its lawyer asking her to move a trailer from her parking spot. In February 2016 she received a follow-up letter, asking her to pay the lawyer’s fees or face a notice of lien if she did not. She eventually moved the trailer but did not pay the lawyer’s fees and did not receive a notice of lien.

Ms. Bomba-Bibi charges that she was not allowed to leave the trailer in her parking space because of her race, and that other residents were permitted to leave various items in their parking spaces. Brookfield and the corporation denied any discrimination and stated that other residents had also been asked to move items from their parking spots. The HRTO adjudicator dismissed the application as having no reasonable chance of success, given that Ms. Bomba-Bibi had no evidence that the alleged unfair treatment was due to her race.

Comment: Corporations and management companies must be consistent when enforcing condominium rules. The perception of selective enforcement often contributes to conflict.

Yeung v Chan, 2017 ONSC 3138
Decision Date: May 19, 2017

This is a successful appeal of a Small Claims Court decision. Ms Chan purchased a unit in a newly constructed condominium with a closing date in January 2012. Before the closing date, she decided to “flip” the property. The respondents (Ms Yeung and Mr. Ho) agreed to buy it and put down a deposit of $15,000. The sale unraveled. Someone (not clear who) drafted a mutual release after the failed closing. The document covers how the deposit is to be divided and includes a clause that the realtor will abandon any claim for commissions.

Ms Yeung and Mr. Ho sued Ms Chan in Small Claims Court for the return of their deposit; Ms Chan counter-sued for $25,000. The original claim and the appeal hinge on whether the mutual release was a legally binding document. Deputy Judge Fisher ruled that it was, and the appeal judge disagreed. The release was never signed by the realtor, sections of it are crossed out and written over (not clear when or by whom), and it seems to have been executed on May 2, 2012, despite stating that it was “irrevocable” on two different dates in January 2012. Ms Chan did not testify at the original trial, and the trial judge accepted the testimony of her husband regarding his intentions for the release, despite the fact that he was not a party to the transaction. He awarded $7500 to Ms Yeung and Mr. Ho.

In the appeal Justice Boswell ruled in favour of Ms Chan, finding that the trial judge erred in concluding that the release was binding and enforceable. In his final reckoning he took into account Ms Chan’s profits from the rental of her unit (which she would not have enjoyed had she sold her unit to the respondents) and awarded her nearly $11,000.

Comment: On the eve of the original trial, Ms Yeung and Mr. Ho offered to “walk away,” meaning that Ms Chan would have retained the entire $15,000 deposit. So although the appeal was successful, Ms Chan is left with less money than she would have, had she accepted their offer.

About the Image: By dave_7 from Lethbridge, Canada – Airstream Trailer, CC BY-SA 2.0, Link

Condo Law Digest – May 2017

Manzanillo strand.jpgMcNairn v Murphy and Pene 2017 ONSC 1678
Decision Date: April 6, 2017

McNairn is a Canadian lawyer who purchased a condominium in Costa Rica in April 2014. At the time of purchase, the property management company was under investigation for fraud. In September 2014 McNairn was elected President of the Home Owners Association and a new property management company was engaged. In early 2015 the new property manager contacted McNairn because he had been verbally abused by one of the condominium ownersand felt threatened; he resigned. McNairn was discouraged by these events and announced his resignation to the other owners via email in June 2015.

In response, Shannon Murphy, one of the defendants, sent a note (through the magic of the “reply all” option) to the other owners  in which she said that the “President quit after accusations of theft.” McNairn received the email and wrote to Murphy, explaining the situation and inviting her to get in touch. He later asked her to retract her statement and apologize. In response, Murphy cut and pasted McNairn’s email to her and made a half-hearted apology. Upon receiving this communication, Pene (another owner, also a lawyer) sent a message to the group, accusing McNairn of threatening and bullying Murphy, of violating professional ethics, and of failing to be honest in his dealings with the other owners. These allegations caused McNairn considerable stress and anxiety, as well as professional embarrassment. After a failed attempt to resolve things with Murphy and Pene, McNairn commenced litigation. Neither Defendant filed a defense and both have been noted in default.

Justice Beaudoin found in favor of McNairn and awarded him damages of $70,000 against Murphy and $90,000 against Pene, plus costs.

Comment: A little sad that conflict occurs among condominium owners even under the sunny skies of Costa Rica.

York Condominium Corp No 163 v Robinson
Decision Date: April 19, 2017

The respondent is an owner and resident of YCC No. 163 who frequently communicates with the building staff regarding maintenance and governance issues. Unfortunately, her manner of communication is extremely disrespectful to the point of being verbally abusive (“insult, body shaming, name calling, and other forms of coarse language and rudeness”). In previous years she would communicate in person; more recently these communications have come in the form of virtually daily emails. The respondent has a right to complain and some of her complaints are valid. However the condominium is also a workplace and the position of YCC 163 is that the office staff should not have to put up with what amounts to daily harassment.

Justice Morgan agreed and ordered that Ms Robinson shall refrain from abusing, harassing, threatening, or intimidating any employee or representative of YCC 163. He also ordered that she pay costs of $15,000.

Comment: Download my article on the Condominium as Workplace that appeared in Condo Business.

About the image: Manzanillo Beach, Costa Rica. By Haakon S. Krohn – Own work, CC BY-SA 3.0, Link

Condo Law Digest – April 2017

Campfire 4213.jpgHeyde v Theberge Developments Limited, 2017 ONSC 1574
Decision Date: March 9, 2017

In Ontario, a Class Action suit must be “certified” by a judge before it can proceed. In this ruling Justice R. Smith has allowed a Class Action suit by owners in the Alta Vista Ridge Development in Ottawa. The plaintiff alleges that the defendant Theberge did not include a heating system in accordance with the specifications in the Disclosure Statement. Each unit purchased before Feb 2015 was supposed to include a forced air heating system. It turned out that the heating system was not included with the unit but was a rental. The plaintiff also proposes a sub-class whose Agreement of Purchase and Sale included a basement storage unit, which was not provided by the defendant. The plaintiff argues that this breach also gives rise to claims of negligent and fraudulent misrepresentation, breach of contract, and failure to act in good faith, among other breaches.

Theberge opposed certification of the class action, arguing that there is no identifiable class, no common issues, and that a Class Proceeding would not be the preferable procedure. Justice Smith disagreed, saying that it was not “plain and obvious” that the plaintiff would be unsuccessful. However he declined to allow any personal claims against Joey Theberge, saying that the plaintiff’s Statement of Claim did not provide any material facts in support of the allegations against him personally.

Law Society of Upper Canada v. Cho, 2017 ONLSTH 48
Decision Date: March 8, 2017

Deposits for new condominiums must be held in trust. Meerai Cho, a lawyer, held funds in trust for Centrium between 2010-2013. During this period, she took funds from the trust account and sent them to Joseph Lee, the developer, who promised to pay it back later. Instead he stole the money and fled the country. Over 140 condominium purchasers lost a total of 13 million dollars. Ms Cho is now in jail, having pled guilty to the offense of breach of trust. This LSUC Tribunal found that she engaged in professional misconduct and ordered the most serious penalty, that her license be revoked. Ms Cho had asked for the second most serious penalty (permission to surrender her license rather than have it revoked).

Comment: In the words of D. Wright, panel chair: “A transgression as serious as this – no matter what the person’s record, remorse, or standing in the community – generally leads to revocation of one’s license.”

About the image: By Dirk BeyerOwn work, CC BY-SA 3.0, Link

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

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

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

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

Condo Law Digest – February 2017

Mental health in the past

Toronto Standard Condominium Corporation No. 2395 v Wong, 2016 ONSC 8000
Decision Date: December 12, 2016

Ms. Wong owns a unit in TSCC 2395. In November 2016 she began a pattern of erratic and threatening behaviour, most of it targeted at a member of the condominium’s staff. Ms. Wong’s behaviour was sufficiently concerning that measures had to be taken to ensure the staff member’s safety. In this application TSCC 2395 asks for an injunction and compliance order prohibiting Ms. Wong from 1) contacting or coming within 25 feet of the management office or TSCC 2395 personnel; 2) disturbing the comfort and quiet enjoyment of the common elements. They also asked the judge to find that Ms. Wong’s behaviour amounted to workplace harassment and that she has breached the Condominium Act. In addition, they asked the judge to consider an order that Ms. Wong undergo an examination by a mental health practitioner for an opinion on whether she has a disability, such that the court should order the appointment of a litigation guardian.

Justice Akbarali agreed to grant the compliance order and the other relief. However she declined to order Ms. Wong to be examined by a mental health practitioner. She reasoned that Ms. Wong’s behaviour in itself was not a “sufficient evidentiary basis” to make the “invasive and rare order” that she undergo a mental examination. Justice Akbarali granted costs of about $16,500 to TSCC 2395.

Comment: A difficult case for all involved. For more on the condominium as a workplace, see my article in Condo Business.

About the image: An itinerant surgeon extracting stones from a man’s head. Pencil drawing by P. Quast. Gallery:, CC BY 4.0, Link