Part 40 published on 01/11/12
Condominium corporation awarded full costs (as between solicitor and client) for enforcement of Declaration.
The condominium corporation was successful in its application for an order requiring the owner and tenant to comply with a provision in the Declaration (prohibiting the owner/tenant from selling fresh meat and poultry). [See Condo Cases Across Canada Part 39, August 2012.]
On the subsequent cost motion, the Court considered the application of Section 134(5) of the Condominium Act, 1998. The Court said:
I take this to mean that, in considering an award of costs where an order requiring compliance with the Condominium Act, 1998, the by-laws or declaration of a condominium corporation is made, the costs considerations extend beyond the normal scales to encompass all that may have been involved in obtaining the order. This is not to say that the claimant does not have to demonstrate the costs expended were reasonable. It simply expands the nature of legal costs to account for the costs that the applicant will properly be required to pay to his own lawyer.
The Court also held that there was no reason in this case to award less than the full costs actually incurred by the condominium corporation. The Court specifically reviewed the parties’ communications towards settlement and found that they did not merit any reduction in the costs award.
[Editorial Note: This case demonstrates that the Courts may be willing to determine the “additional actual costs” recoverable under Section 134(5) of the Condominium Act, 1998 as part of the original cost award, rather than leaving that matter for subsequent determination.]