To quote a famous Canadian, “is it too late now to say sorry?” There are countless songs, movies, and novels with situations about apologizing. There are numerous books and blogs about how to apologize, when to apologize, and why a person should apologize. It might be good material for a catchy song, but is apologizing always a good idea?
Durham Condominium Corporation No. 45 and Swan.
As a recap, Swan was elected as a director in June of 2009. He often disagreed with the other directors about the management of the condominium. Two months after he was elected he started a claim against the condominium and another against one of the directors. In the first 4 months of his term as director he took several steps without authorization of the board, including:
- terminating the property manager;
- commencing two actions in the name of the condominium against the property management company and its president;
- commencing an action against the condominium and misleading the other directors by accepting service of the claim on behalf of the condominium;
- sending harassing and insulting emails to directors and management; and
- installing a satellite dish on the common elements.
One of the directors requisitioned a meeting to remove him for breaching his duties. The owners voted to remove him in September of 2009. He started another action against the director who requisitioned the meeting claiming defamation. In 2010, all 5 of his actions were dismissed at trial and he was ordered to pay $3,750.00 in costs. He appealed. His appeal was dismissed. The court found that the condominium, directors and manager may have produced material that constituted defamation to him, but they were doing what the Act required them to do and there was evidence to support the comments made.
In 2012 the condominium commenced an application against Swan claiming that he failed to carry out his duties and seeking various orders. Swan brought his own application against the condominium claiming that two directors breached their duties to the condominium and should be removed. He also sought his own reinstatement to the board.
The court reviewed his conduct and found that Swan’s “confrontational inflexibility and misguided assessment of his duties as Director failed to meet” the duties in section 37(1) of the Act. With respect to his application, the court dismissed it in full. There was no evidence that the other directors breached their duties or that the condominium acted in an oppressive manner toward him.
The condominium sought costs of $198,880.92 from Swan. Swan argued that the condominium had to indemnify him under section 38 of the Act. The judge ordered Swan to pay $45,000.00 in costs to the condominium. Swan appealed.
The Court of Appeal released its decision to his appeal on costs. The appeal was allowed and he was awarded $6,000.00 in costs. Unfortunately, the matter has been sent back to the application judge for reassessment of the costs as the Court of Appeal did not have enough information to make a decision regarding the condominium’s obligation to indemnify him. One of the key issues for the application judge will be whether he was acting in bad faith (in which case he would not be entitled to indemnification) or was simply negligent in fulfilling his duties (in which case he would be entitled to indemnification).
Stay tuned. This one isn’t over yet…
The Court of Appeal has released a further decision on the implementation of its December 2014 decision and the costs. For those unfamiliar with the Orr v. MTCC 1056 case, you can read more in my previous post.
MTCC 1056 was registered as a condominium in 1993. From 1994 to 1997 one of the declarant’s directors owned a unit within the condominium. The director was also a director for the condominium. He added a third storey in the common element attic space of the unit. In 1997 a new owner purchased the unit. She understood it was a three-storey townhouse unit. Unfortunately, the status certificate did not notify her that the third-storey was improper, despite the director’s knowledge of the changes he made to the unit. Shortly after she moved into the unit the condominium demanded that she close up the attic space and return it to its original condition. The owner brought a claim against the condominium, the property manager, her own lawyer, and several other individuals. The condominium added the seller/director to the action.
At trial, the judge dismissed the claim against the property manager and individuals, but found that the condominium, director and lawyer were liable for damages. The owner was ordered to close up the third floor space and pay the condominium rent for the third floor.
On appeal, the Court of Appeal determined that the condominium was not entitled to demand the owner close up the third floor and restore the unit to a two-storey configuration. The Court also found that the property management company was not liable to the owner as it was acting as agent for the condominium and did not owe a duty to the owner. However, the property management company was ordered to indemnify the condominium for the damages it owed to the owner because of her reliance on the status certificate it prepared. The property manager was not entitled to rely upon a clause in its management agreement that limited its liability. The Court upheld the finding that the law firm was negligent in failing to show all of the plans to the owner prior to her purchase. The Court upheld the award of $50,000.00 owed to the condominium from the seller/director.
This most recent decision awarded the legal costs of the appeal as follows:
- $44,170.81 to the owner by the condominium
- $44,170.81 to the owner by the owner’s lawyer
- $42,490.60 to the condominium by the owner’s lawyer
- $22,651.25 to the property manager by the owner
- $11,325.62 to the property manager by the condominium
- $11,325.62 to the property manager by the owner’s lawyer
The legal costs of the trial were awarded as follows:
- $150,000.00 to the owner by the condominium
- $150,000.00 to the owner by the owner’s lawyer
- $100,000.00 to the property manager by the owner
- $50,000.00 to the property manager by the condominium
- $50,000.00 to the property manager by the owner’s lawyer.
For those keeping track, the legal costs awarded have exceed $675,000.00 so far and this matter isn’t over yet. There are also the damages awarded, which could exceed another $500,000.00 between the various parties.
The Court of Appeal has released its decision in Orr v. Metropolitan Toronto Condominium Corporation No. 1056. I encourage a full reading of the case, but here is a summary of the important facts and findings.
The condominium was developed in the late 80s and registered in 1993. One of the principals of the developer purchased a unit and built a third floor in the common element attic space above his unit. The third floor held a large family room, bedroom, ensuite, storage area and small furnace room. The condominium documents showed the unit as a two-storey unit. The principal was the president of the condo until 1997 when he sold the unit. The purchaser obtained two estoppel certificates (now called status certificates). Neither certificate mentioned the third floor issue. The purchaser bought the unit. During renovations of the unit the new owner discovered construction defects. She had her lawyer write to the condominium and property manager, who responded by demanding that she stop immediately. The condominium’s engineer investigated the defects and noticed the third floor. The condominium brought an application against the owner for the third floor changes. The owner commenced an action against the former owner of her unit (who was also the former president of the condominium and principal of the developer), the City of Toronto, and the real estate agents. The owner started another action against her former law firm, the condominium, the property manager, and a number of individuals.
At trial, the judge found the condominium, lawyers, and seller/director liable for damages. The owner was ordered to close up the third floor and pay the condominium rent for her use of the third floor. The owner appealed. The seller/director, lawyer, and condominium all cross-appealed
The Court of Appeal made the following findings and comments:
1) Owner’s Claim against the Condo
The Court of Appeal determined that the condominium was liable for negligent misstatement in regard to the certificate that indicated that there were no breaches of the Act, declaration, by-laws or rules. In doing so, the Court made the following findings:
- The condominium owed the purchaser a duty of care in the preparation of the status certificate. The condominium could not escape its duty by contracting out or delegating the completion of the certificates to the property manager.
- The condominium and property manager should have been more vigilant and diligent in preparing the certificate when they knew the records transferred from the previous manager were “in dribs and drabs”.
- The failure of the property manager to make any inquiries into the issue with the third floor prior to completing the certificate was “not reasonable or prudent in the circumstances.”
As a result, the condominium was not entitled to demand the owner close up the third floor and restore the unit to a two-storey configuration at her own expense.
2) Owner’s Claim against the Property Management Company
The property manager was not liable as it was acting as agent for the condominium in preparing the certificates. The property manager did not owe the purchaser an independent duty of care.
3) Owner’s Claim against her Real Estate Lawyer
The Court of Appeal upheld the finding that the law firm was negligent in failing to show all of the plans of the unit to the owner prior to her purchase. The lawyer was not entitled to rely upon the estoppel certificate that indicated there was no breach of the Act, declaration, by-laws or rules; the certificate was “never intended to provide evidence of proper title to a property.”
4) Condo’s Claim against Manager/ Manager’s Claim against Condo
The condominium and property management company claim against each other. The property manager relied upon its management agreement, which included an exception for liability arising from facts that were known by the board and not disclosed to the manager. The Court of Appeal said that it would not impute the knowledge of one director (the seller/president) to the board as a whole since it would “have the potential to vastly increase the liability of condominium corporations and would certainly make risk management on their part all but impossible.” As a result, the property management company was ordered to indemnify the condominium for the damages it owed the owner as a result of her reliance on the certificate.
5) Condominium’s Award of Punitive Damages from Seller/Director
The trial judge ordered the seller/director to pay $50,000.00 in punitive damages to the condominium. The condominium appealed, asking for $140,000.00. The Court of Appeal upheld the award of $50,000.00.
The owner was awarded:
- from the condominium – $41,681.00 for repairs to the common elements she made;
- from the real estate law firm – $28,379.02 for the amount she paid them;
- from the condominium and law firm (jointly and severally) – the difference between the value of the townhouse as a renovated three-storey unit and a two-storey unit.
The condominium was awarded:
- from the seller/director – $50,000.00 for punitive damages;
- from the management company – the amount it owes to the owner for negligent misrepresentation (in the certificate).
The issue of costs (which exceed $1,000,000.00 between the parties) will be determined next year.