Part 40 published on 01/11/12
Corporation not entitled to seek recovery of costs beyond amount awarded by Court
The respondent, McNeil, is an owner in the condominium. He asserted a previous claim against the condominium corporation in which he sought to recover costs of plumbing repairs and damages suffered as a result of a leaking pipe. The condominium corporation successfully defended that claim, and the claim was dismissed. The Court awarded the condominium corporation costs of $350 (representing only partial compensation for the corporation’s actual costs of the defence).
In reliance upon cost recovery provisions in the corporation’s by-laws, and upon Sections 39 and 42 of the Condominium Property Act, the condominium corporation then initiated this separate action against McNeil for recovery of its actual additional costs of the defence, in the amount of $7,129.55 plus costs.
The Court dismissed the condominium corporation’s claim for additional costs. The Court said:
- The question of the corporation’s entitlement to costs had been fully decided in the previous Court action.
- “…Sections 39 and 42 of the Condominium Property Act do not vest the corporation with a second cause of action on this set of facts.
My reading of those sections of the Condominium Property Act suggests that it is intended to cover those situations where the condominium corporation is required to pursue litigation in order to enforce its by-laws. It is not intended to cover the situation where the condominium corporation, albeit in reliance on its by-laws, successfully defends an action initiated by an owner.
The costs awarded in such successful litigation are solely within discretion of the trial judge…”
- “Of course, the award of costs may also have been the subject of an appeal, which was not taken here.”