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We were recently successful in obtaining a stay from a civil action involving our condominium client and a neighbouring condominium. The two condos were parties to a Reciprocal Agreement and Indemnity Agreement (the “Agreements”) and after a dispute arose with respect to these agreements, our client submitted the issues to mediation and arbitration. The neighbouring condo responded by bringing a civil action against our client where a corporate unit owner (which happened to own 100% of the neighbouring condominium units) was included as a co-plaintiff.

Section 132 of the Condo Act provides that any disputes “pertaining to agreements between two or more condominium corporations deemed to contain a provision submitting the disputes to mediation/arbitration”. The neighbouring condo and corporate unit owner attempted to avoid mediation/arbitration by arguing that their civil action was based on an economic tort and the corporate unit owner was not a condominium corporation that was party to the Agreements.

Continue Reading No free rides – Piggybacking on court proceedings to avoid mandatory mediation/arbitration is improper

A recent court decision confirmed that disputes between neighbours should not be adjudicated by the courts as the first step (unless there is injury or danger to others or property). Parties should instead pursue mediation and arbitration. We have written on the proper forum for condo disputes before (see here and here) but this case demonstrates that adjudicated proceedings won’t always resolve squabbles between neighbours.

Neighbouring owners (let’s call them, A and B) have a history of alleged name calling, banging on a common wall, harassment and racist taunts. The condo corporation took neighbour B’s side despite “she said/she said” allegations and started an application for order requiring neighbour A to sell their unit or to comply with the rules. Neighbour A moved to stay the application pending mediation and arbitration.Continue Reading Condo neighbour disputes don’t belong in the courts

The court recently  disallowed compliance costs claimed by a condo corporation because it did not first mediate compliance issues under section 132(4) of the Condominium Act, 1998 (the “Act”).

Mr. Friend is a unit owner who had a long-standing dispute with the board of directors and management dating back to 2011. The condo brought successful compliance applications against Mr. Friend in 2013 and 2019 because he didn’t follow the condo’s governing documents, interfered with contractors and management, and engaged in a campaign of harassment against the board and the condo’s employees. In 2020, the court granted a final injunction prohibiting Mr. Friend from communicating with the condo’s board and employees, except under limited exceptions. Full indemnity costs were awarded against Mr. Friend and he unsuccessfully appealed the 2020 decision, resulting in a further costs award. The condo registered liens to secure the cost awards and other common expense arrears.

The matter was before the court again in 2021 to determine the amounts due under the liens.

Continue Reading Mandatory condo mediation continued – Compliance legal costs not recoverable without exhausting mediation

The Divisional Court of Ontario recently considered a condo corporation’s application for judicial review of a CAT decision.   However, the court dismissed the application because the corporation did not exhaust its right of appeal under the Condo Act

Judicial review is a process where courts make sure that the decisions of administrative bodies (such as…

The opening paragraphs to Berman v. York Condominium Corp. No. 99 could not have set up the starting point for an oppression application any better:

The oppression remedy starts by someone having an expectation….But to be actionable at law, a person’s feeling of expectation must also be objectively reasonable. In addition, even if a reasonable expectation is not met, the applicant also needs to show that he has been oppressed, unfairly prejudiced, or unfairly disregarded.

In Berman, the owner complained the condo acted oppressively since it failed to replace his windows when he wanted them replaced. With no evidence that his windows failed or required replacement, the court found he had no reasonable expectation to have his windows replaced earlier than they were. The only reasonable expectation he had was that the board of directors would manage the condominium corporation honestly, in good faith, and with due diligence required by the statutory standard of care in s. 37 (1) of the Condo Act.Continue Reading Oppression in condominiums: “Feeling of expectation” must be objectively reasonable

A Toronto condominium community recently endured a tenant from hell. In MTCC 1025 v. Hui, residents, security staff and contractors were subject to a tenant’s threatening and disturbing behaviour, including:

  • Threatening a security guard with a knife;
  • Exposing himself and performing lewd acts in the common elements of the condominium building;
  • Attempting to force his way into a resident’s car and a contractor’s van;
  • Defacing unit doors and nearby walls;
  • Setting up a chair and blocking the entrance of the building, not allowing residents to enter (so they had to enter via the loading dock), and the list goes on.

The owner of the unit cooperated with the corporation from the outset. She delivered an eviction notice to the tenant and applied to the Landlord and Tenant Board for an urgent hearing, but the request for an expedited hearing was denied. The corporation brought an application for a compliance order against the tenant and owner.  At some point in the interim, the tenant was arrested and therefore no longer on site.

The court had no trouble granting a compliance order against the tenant for breaching section 117 of the Condo Act (which prohibits any dangerous activity that is likely to damage property or cause injury), the corporation’s declaration, rules and the Occupational Health and Safety Act when misconduct was levelled at staff.

But who was responsible for the corporation’s costs of the application?

Continue Reading Cooperative unit owner pays the price for tenant’s outrageous conduct

In February 2021, the provincial Home Construction Regulation Authority (HCRA) became responsible for licensing and regulating home builders and sellers in Ontario. This was previously overseen by the Tarion Warranty Corporation (TARION).

The HCRA sets standards for competence and conduct while TARION continues to oversee warranty claims and complaints relating to new construction.  HRCA also…

We recently blogged about the current framework governing electronic signatures in Ontario (here). In a May 2021 case, the Divisional Court recognized text messages as a valid digital signature in a dispute between parties over a debt for leasehold improvements and the application of the Limitation Act, 2002.

Civil claims in Ontario must generally be started within two years of an “act or omission” giving right to the claim. The “limitations clock” starts to run on the date of the act or omission but can be extended in certain circumstances such as where a debtor acknowledges the debt to the creditor. The acknowledgment must be in writing and signed. The clock starts to run on the date of the acknowledgment.

In this case, there was a dispute over money owing to a contractor. Some invoices were paid but the last was partially outstanding. The parties exchanged text messages on June 2, 2016, where the debtor recognized the debt but refused to make payment until the project was completed to his satisfaction. The contractor brought a claim in the Small Claims Court for the balance owing and successfully argued that the text exchange was an acknowledgment of debt under s.13 the Limitation Act, 2002 and the claim was brought in time of the two-year limitation period (with the clock starting from the date of that text exchange).  The text exchange was within 2 years of the start of the claim.  The last payment made to the contractor was outside of 2 years of the start of the claim.Continue Reading E-signatures continued – Are text messages valid digital signatures?