19/09/2017 – Jurisdiction Ontario
Part 60 published on 01/12/2017
Condominium corporation recovers expenses incurred in dealing with noise from restaurant
The condominium is a mixed-use building, with four commercial units and 76 residential units.
Complaints were received respecting noise emanating from a restaurant operation in one of the commercial units. Before the restaurant had opened, the landlord and MTCC 596 had entered into an agreement under Section 98 of the Condominium Act, 1998, authorizing certain changes to allow for the restaurant to be operated by the tenant of the unit.
The tenant and the condominium corporation had made significant investigations (into the noise problems) and various efforts to address the noise concerns; and had agreed on further steps to be taken to resolve the noise problems.
However, the condominium corporation had incurred significant expenses (engineering and legal expenses as well as hotel costs to relocate two residents during sound testing); and the corporation was seeking to recover those costs.
The corporation was largely successful. The Court ordered that the landlord and tenant were jointly liable to pay the corporation’s expenses, subject to some relatively small adjustments. The Court said:
Because the tenant is responsible for all the costs pursuant to the rules, and the landlord is responsible for all the costs pursuant to the declaration, by-law and rules, I order that the landlord and tenant are jointly and severally liable to MTCC 596 for the costs owing. This determination does not preclude either of them from seeking the amount they pay in respect of MTCC 596’s costs from the other in their ongoing applications.
In terms of the legal costs, the Court said:
I have reviewed the invoices for legal fees and the steps disclosed in them are reasonable. However, there are no dockets or other evidence that would allow me to understand how much time was spent on varying tasks. Without the dockets, I cannot conclude that there was no duplication between the different timekeepers on the file. While I have no doubt that counsel invested significant time into this application, I am concerned that the amount claim is too high to be fair and reasonable.
Therefore, the Court reduced the amount payable for legal costs from approximately $72,000 (claimed) down to $60,000.