Part 8 published on 01/11/04
Key case related to corporation’s right to recover costs under Section 134 (5) of Condominium Act
The condominium corporation had previously succeeded on applications against the respondent owners. [This included successful enforcement of its rule prohibiting hotel-style use of the units and successful appointment of an administrator.]
The condominium corporation was awarded costs on those previous applications. However, the costs awards did not cover all of the corporation’s actual costs.
The corporation then sought to recover all of its costs through condominium liens against the units of the unsuccessful owners. The corporation relied upon Section 134 (5) of the Condominium Act, which states as follows:
“If a corporation obtains an award of damages or costs in an order made against an owner or occupier of a unit, the damages or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses for the unit and the corporation may specify a time for payment by the owner of the unit.” (emphasis added)
The Court was required to answer the following question: What is the meaning of the words: “together with any additional actual costs to the corporation in obtaining the order”?
The Court ruled that the “additional costs” mentioned in Section 134 (5) must be costs which could not have been included in the cost award of the Court. In other words, if the judge decides not to award 100% of the corporation’s costs – if the judge awards a lesser amount – Section 134 (5) of the Act does not allow the condominium corporation to recover those costs that could have been awarded by the judge but were not awarded by the judge.
The Court said that Section 134 (5) allows the condominium corporation to recover other costs related to the particular dispute but which could not have been awarded by the Court.
The decision includes some examples of the sorts of costs that might be recoverable by a condominium corporation pursuant to Section 134 (5).
[* Note: This decision is under appeal.]