Part 41 published on 01/02/13
Owner could not appeal decision of Small Claims Court respecting production of records
The Small Claims Court had ordered that the owner could see the proxies from a meeting of owners. However, on a subsequent motion by the condominium corporation, the Small Claims Court clarified its order. In particular, the Court clarified that the copies of the proxies produced to the owner were to be redacted (for reasons of privacy) by deleting the signatory’s names, signatures and unit numbers from each proxy. (See Condo Cases Across Canada Part 36, December 2011.) Mr. Larhkamp sought to appeal the clarifying order. As the Divisional Court explained: “He seeks production of the proxies without redaction.”
The appeal was dismissed for lack of jurisdiction. The Court said:
I find that this Court is without jurisdiction to deal with this appeal. The order appealed from is essentially a procedural matter meant to clarify the judgment which had been made and from which no appeal was taken.
In any event, I find that the Small Claims Court judge had the jurisdiction to clarify the order. There is no reason why the clarification should be set aside.”
The decision also includes an interesting cost award. Although the appeal Court did not award full indemnity costs, the Court awarded more than (the usual) partial indemnity costs. The Court said: “As a matter of policy, the Condominium Act, 1998 suggests that condominium corporations should not be put to unnecessary expense. In effect these applications are lawsuits among owners of, in part, a shared asset.”
[Editorial Note: Section 134(5) of the Condominium Act, 1998 essentially says that a condominium corporation should be entitled to full indemnity costs when the condominium corporation successfully enforces its governing documents against an owner or occupant. This case may take the principle a step further. This case seems to be saying that when a condominium corporation is successful in any “condominium dispute” (including any dispute with an owner or occupant respecting the application of the Condominium Act, or the corporation’s declaration, by-laws or rules) the condominium corporation should be entitled to have the owner pay more than the usual costs.]