Comments from the Courts on Costs

There have been a two interesting decisions on costs released this month.

Ballingall v. Carleton Condominium Corporation No. 111 is the case I posted about previously where a group of owners commenced an application against the condominium and one of the directors because of their failure to enforce the single family residence requirement in the declaration. The owners were successful. The decision on costs was released this month. The owners sought $76,000 in costs from the condominium and director. The condominium and director suggested that success was divided and that no order on costs was appropriate. Aitken J. disagreed with the condominium and director and awarded the owners costs of $50,000.00 ($15,000.00 payable by the director and $35,000.00 by the condominium).  It appears from the decision that the judge was not impressed with the condominium’s refusal to consider several reasonable offers made by the owners. At paragraph 26 Aitken J. stated:

[26] This litigation should be a reminder to all concerned that being stubborn and unwilling to compromise when parties have different, but legitimate, interests and concerns is a costly and unwise endeavour. Looking for common ground, and working hard to find solutions, is always the better way. This award also provides a strong message to condominium owners to take an interest in the management of their corporations and to seek leaders who are able to work constructively and effectively with all owners in seeking reasonable resolutions to difficult issues.

This case is an excellent reminder that reasonableness is important in resolving disputes, especially condominium matters where the parties are all part of the same community and must live together after the matter is resolved.

The second case is interesting for lawyers because it reminds us of the importance of following instructions. Simcoe Condominium Corporation No. 89 v. Dominelli is the case I previously wrote about where the condominium sought an order requiring the owners to remove an overweight dog from their unit. The owners claimed the dog was required because of a disability. The court found they had not established a disability or the need for accommodation. As a result, the condominium was successful. The condominium was awarded almost all of its costs in a previous ruling on costs.

After the previous ruling was released, the judge became aware of a letter from the owners that was submitted prior to the ruling, but was somehow missed. The owners objected to the reply submissions made by the condominium because they exceeded the length directed by the judge. The judge agreed with the owners that “non-compliance by the applicant [condominium] with the page limit had a bearing on the costs expended in preparing the reply submissions and that the quantum of costs awarded to the applicant for its reply submissions should be reduced.” Costs were reduced from $47,000.00 to $45,750.00.

The second case is an excellent reminder that lawyers should follow the judge’s directions so their clients are not penalized for their inability to follow instructions.

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