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CONDOMINIUMS - Bylaws - Regarding occupancy standards - Declarations

Friday, September 25, 2020 @ 6:06 AM  

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Appeal by the defendants from summary judgment finding they engaged in conduct towards the respondents that was unfairly prejudicial and unfairly disregarded their interests and from the costs award of $54,000 in favour of the respondents. The parties owned units in a condominium that operated as a retirement residence that were rented out. The appellants owned and managed most of the units. The respondents alleged the appellants did not comply with the Declaration and the applicable bylaw by failing to require their tenants to sign the standard Services Operation Agreement providing for certain monthly basic and optional fees for care and services. The respondents alleged that his practice provided an advantage to the appellants in renting out their units, because they could offer discounts on services that the respondents were unable to offer. The appellants’ tenants did not enter into Services Operation Agreements with the Services Manager. Instead, the appellants required their tenants to enter into a Residency Agreement that included both rent and services. The motion judge agreed that the appellants provided incentives to attract tenants for their units by not charging the care and service component or by reducing the charge substantially.

HELD: Appeal allowed in part. The judgment was varied to ensure that it did not affect the rights of current occupants of the building who were not before the court. The motion judge did not grant relief other than what was claimed by the respondents in their notice of motion and statement of claim. The statement of claim clearly advanced a claim for oppressive conduct, even though it did not expressly plead s. 135 of the Condominium Act. The Retirement Homes Act was also relevant to the context underlying the respondents’ claim and was properly considered by the motion judge. The appellants were not taken by surprise by the issues raised on the motion, how they were determined, or the relief that was granted. All were squarely raised and addressed in the motion. The motion judge did not effectively grant partial summary judgment. The respondents expressly abandoned their claims for other relief claimed in the statement of claim at the hearing of the summary judgment motion. The motion judge’s judgment specifically dismissed the balance of the relief sought by the respondents on the motion. The motion judge did not err in concluding that the appellants’ conduct was unfairly prejudicial and unfairly disregarded the respondents’ interests. The motion judge did not misapprehend the evidence. Whether or not the motion judge misapprehended the evidence with respect to what services might have been included in the appellants’ basic rent, there was no question that their tenants were not required to enter into the standard Services Operation Agreement anticipated by the Declaration and bylaws, or an agreement that was the same as or comparable to the Services Operation Agreement. The fact that the motion judge, in considering the appropriate remedy, did not award damages did not undermine her finding that the appellants’ failure to comply with the Declaration and bylaws was unfairly prejudicial to the respondents and unfairly disregarded their interests. There was no reversible error in the motion judge’s costs decision. The order was proportionate and reasonable and reflected no error in principle.

Siemon v. Perth Standard Condominium Corp. No. 39, [2020] O.J. No. 3374, Ontario Court of Appeal, G.R. Strathy C.J.O., P.D. Lauwers and K.M. van Rensburg JJ.A., August 10, 2020. Digest No. TLD-September212020010