Balland v. York Condominium Corporation No. 201 (Ontario Divisional Court)

The two key points of dispute, between the parties, were as follows:

1)      The owner had wanted to be present (in the unit) during any exercise of access; and

2)      The owner had wanted to know the specific reasons for each requested access.

After considering the history, the lower Court had ordered the owner to pay the following amounts:

• $344 for a plumber’s attendance at the unit, when the plumber was locked out (because the owner was not home).
• $9,000 for legal costs incurred by the corporation for Court process started because of the owner’s alleged lack of co-operation.

On appeal, the Divisional Court cancelled the above cost awards.  The Divisional Court said that the condominium corporation had not been sufficiently co-operative in its dealings with the owner.  The Appeal Court said:

In this case, the Applications judge failed to consider the following important facts:

i.          this was a very simple matter that involved obtaining access to the (owner’s) unit which was obtained in January of 2015 for which minimal costs are warranted;

ii.         after a preliminary exchange between the parties, instead of having building management clearly explain why access was required and attempt to resolve the matter with the (owner), there was a precipitous and premature resort to legal action (and thus legal fees) on the part of the (condominium corporation);

iii.        the (owner) granted access to her unit at a very early stage (January 2015) after reasons were explained to her, with the proviso that the (owner) would make arrangements to take time off to be there;

iv.        the (condominium corporation) did not contest the (owner’s) wish to attend in January as she did;

v.         notwithstanding that access had been agreed to, that the (owner) had notified the (condominium corporation) in advance that she wished to be in attendance, and alternative dates had been provided, the (condominium corporation) scheduled a court attendance in this matter on March 3^rd, the same day that it sought access to her unit a second time (knowing that she would be in court).  The (condominium corporation) knew or ought to have known the (owner) would not be available because they scheduled the court date;

vi.        the (condominium corporation) sent a plumber to the unit on March 3^rd knowing that the (owner) would not be home and knowing nonetheless that costs would be incurred for his attendance;

vii.       reasonable overtures were made in February 2015 by (the owner’s) counsel (when she was represented by counsel) to try and resolve matters;

viii.      this application has only been about costs since March, 2015; and

ix.        since March 2015, the (condominium corporation) has taken wholly unnecessary steps including several further court attendances and costly cross examinations which greatly lengthened the proceeding and added exponentially to the costs.