Winter Case Law Reading

winter

I feel like all I write about these days is Bill 106 (the amendments to the Act). Today, I’m getting back to my roots and writing about some important decisions released by the courts and tribunals in Ontario in the past few months. The first is about the enforcement of a lien. The second is about an owner who won’t quit. And the third is about a director who felt she was discriminated against because of her age. All of the decisions are available on CanLII if you want to read them in their entirety.  

Toronto Standard Condominium Corporation No. 1462  v. Dangubic (2018)     Superior Court of Justice

This was a motion for summary judgment and enforcement of a lien against an owner’s unit. The condominium registered a lien to collect legal costs for compliance letters written to the owner. The owner was described by the judge as “not a good neighbour”.

The condominium’s declaration and by-laws required the owner to indemnify the condominium for legal costs incurred because of his non-compliance. The judge found that it was clear that the condominium incurred the costs that it sought from the owner. As such, the condominium had the legal right to recover its costs from the owner.

The owner also claimed that the lien was invalid. The judge disagreed. The owner was fully aware of “the circumstances of how and why the fees were incurred.” The judge also confirmed that it was acceptable for the condominium to apply payments made by the owner to the oldest arrears with the consequence that the debt rolled over each month and extended the deadline for registering the lien.

Consequently, the judge granted the motion for summary judgment and ordered the owner to pay the $14,358.40 owed to the condominium. An order for possession was also granted to the condominium to permit it to start the process of selling the unit to enforce the lien. The condominium was awarded costs for the motion and for the action to enforce the lien.

Lesson Learned: Owners need to take compliance letters seriously. Condominiums often have the right to collect legal costs from owners where they are not complying with the condominium’s declaration, by-laws or rules. If the owner does not reimburse the condominium for costs incurred the condominium can register a lien against the unit, and enforce the lien by selling the unit, if necessary.

Metropolitan Toronto Condominium Corporation No. 932 v. Lahrkamp (2018)  Superior Court of Justice

This is the latest in the dispute between a condominium and one of its famous owners. Many of the past issues revolved around the owner’s unsuccessful attempts to be elected to the board of directors and related record requests (i.e. to see the proxies and ballots from the meetings). It seems like most condo lawyers in the province have been involved in this dispute in one way or another.

The condominium brought a motion under section 140(1) of the Courts of Justice Act for an order preventing the owner from initiating any further proceedings in any court without the leave of a judge of the Superior Court of Justice. This is an extraordinary remedy and available only in the rarest of circumstances. The judge must be satisfied that the person persistently and without reasonable grounds commenced proceedings in a vexatious manner.

The judge reviewed the litigation history between the condominium and owner and found ample evidence of the owner’s persistence. There was also evidence that he re-litigated issues that had already been determined, initiated proceedings that could not succeed, rolled forward grounds and issues into subsequent actions, made claims against others (like his unsuccessful claims against the manager and lawyer), and actions brought for improper purposes (i.e. fishing expeditions). Consequently, an order was granted that prohibited the owner from commencing any proceeding in any court against the condominium, its present, future or former directors, or its property manager, without leave of the court.

Lesson Learned: In extreme cases, the court may prevent an owner from commencing legal action against a condominium, its property manager, and directors if the owner has a lengthy history of vexatious proceedings against them.

Kovaleva v. Metropolitan Toronto Condominium Corporation No. 1000 (2017) Human Rights Tribunal of Ontario

This was an application filed in 2014 by an owner and former director against the condominium alleging harassment and discrimination because of her age. She claimed that she was removed as a signatory of cheques for the condominium, removed as president, and removed from the board because of her age.

The member was not satisfied that the owner had been discriminated against when she was removed as a signing officer, as president, or as a director. There was no evidence of harassment on the basis of her age either. The owner contradicted herself and could present no evidence to support the accusations against the other directors. The member accepted the reasons given by the other directors for removing her, namely her persistent opposition to the directors and the support she was providing to the superintendent who had been terminated by the condominium. The board had concerns that she could not be trusted and was acted in a manner that was not in the best interests of the condominium.

Lesson Learned: a claim of discrimination will not succeed without evidence of differential treatment that cannot be explained by a legitimate reason, such as improper conduct on the part of the director. All differential treatment is not protected by the Human Rights Code. There must be discrimination on the basis of age (or another protected ground).