Caution: Reading this Post May Cause Nightmares About Indemnity Clauses

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A recent case involving the right of a condominium to charge legal fees to an owner for alleged non-compliance with a rule has the industry talking. The decision has divided the legal community, resulting in many interesting legal debates and a whole lot of uncertainty for condominiums going forward.

The case is Amlani v. York Condominium Corporation No. 473. The dispute was about smoking. Amlani smoked and the condominium received complaints about it. The condominium took some steps to improve the situation, such as sealing joints and penetrations between the units. The owner limited his smoking to one room and used air filters to reduce the smoke transmission to other units. Unfortunately, the condominium received further complaints. The owner was willing to meet and discuss potential solutions, but the condominium was unwilling to do so and demanded that he stop smoking in the unit as it was a nuisance. Continue reading

Improper Use of the Indemnification Clause

Many declarations contain a clause that requires the owners to indemnify the corporation for a loss, cost, damage or injury to the common elements or units if it was caused by the owner, his family, tenants, guests etc. Many condominiums attempt to apply these clauses to other types of expenses incurred by the condominium, such as legal costs.

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In for a penny, in for a pound? A cautionary tale on costs.

In the past few years there has been a trend toward full or substantial indemnity costs for condominiums enforcing against unit owners. However, in York Condominium Corporation No. 345 v. Qi, [2013] O.J. No. 3214 the courts have again awarded only partial indemnity to a successful condominium. Although the court acknowledged the previous case law supporting full indemnity costs for condominiums that are successful in enforcing against unit owners, it also reiterated that judges have retained their general discretion to award costs. In making its decision, the court had the following concerns in awarding costs in favour of the condominium: Continue reading