A recent decision of the Superior Court of Justice illustrates how the conduct of the parties can sway a judge when it comes to the issue of costs. The case is York Condominium Corporation No. 922 v. Frank Lu et al (2016). The facts are straightforward. The owner refused to permit the condominium’s contractors to enter the unit to investigate it after a flood in the unit, which was caused by the owner’s tenants. The condominium made repeated attempts to gain access to the unit and offered to meet with the owner to discuss the issue, but the owner refused. The condominium engaged a lawyer, who wrote several letters, but the owner still refused to grant the condominium access to the unit.
The condominium started a court application under sections 92, 117, and 134 of the Condominium Act, 1998. The condominium asked the court for an order requiring the owner to allow it to access the unit to investigate the damage, and if necessary, repair the damage to the common elements.
The condominium was successful in its application and sought $15,416.00 in costs from the owner.
On the issue of costs the judge carefully considered each party’s conduct in the proceeding. The judge noted the following:
- The condominium warned the owner at least four times that a court application would be commenced and costs would be sought from him if he refused entry to the unit.
- The owner ignored the condominium’s warnings and “demanded unnecessary and superfluous information”.
- “It was solely the actions of the (owners) and their conduct that caused the issuance of this application and the delay in effecting the necessary repairs.”
- Pursuant to section 134(5) of the Act the condominium can recover full costs from an owner where it is successful in obtaining an order for compliance. The purpose of section 134(5) is to ensure that compliant owners are not made to pay for others who do not comply.
- The owner misled the court. “If he was as co-operative as he would have this court believe, the repairs would have been effected long ago and this application entirely unnecessary.”
As a result of the owner’s unreasonable conduct, and the reasonable approach taken by the board, the court awarded the condominium costs of $12,000.00 payable immediately.
Note: this case was argued by Stephanie L.L. Sutherland of Sutherland Kelly LLP.