Toronto Standard Condominium Corp. No. 2032 v. Boudair (Ontario Superior Court)

The condominium corporation had started this application, against the owner and tenants of the unit, seeking an order prohibiting the tenants from smoking in the unit.  Complaints had been received about smoke from the unit infiltrating into other units, in contravention of the corporation’s rules.  The lease also included a term that the tenants not smoke inside the unit.

The parties consented to an order to comply with the applicable rules of the condominium, and further consented to an order terminating the lease.  The sole issue was the question of costs.

The condominium corporation sought an order, jointly against the landlord and tenants, for payment of the condominium corporation’s costs on a substantial indemnity basis in the amount of approximately $33,000.  The Court ordered the tenants to pay the condominium corporation’s costs on a partial indemnity basis “fixed in the all-inclusive amount of $10,000”.  The Court also ordered the tenants to pay the landlord’s costs on a partial indemnity basis, also fixed in the all-inclusive amount of $10,000.

The Court said:

• The landlord had leased the unit “in good faith by insuring that the terms of his lease contained a no smoking covenant”.
• Even if (the landlord) had started the eviction process earlier (which I find was not necessary as it was reasonable to try and conduct good faith negotiations with the tenants), there was no guarantee that the tenants would have been formally evicted prior to the return date of this application, or at all.  I find merit in (the Landlord’s) submission that he likely could have secured the tenants’ consent to an early termination of the lease sooner had he been provided with the additional documentation, information in the (condominium corporation’s) possession.
• Accordingly, I find that (the landlord) did take all reasonable steps as required by section 119(2) of the (Condominium Act).  As such, in the circumstances of this case, I order that there shall be no cost of the application as between the (Condominium Corporation and the Landlord).

 [Editorial Notes: 

The decision appears to leave the following unanswered question:  Would section 134(5) of the Condominium Act still give the condominium corporation the right to seek collection of its additional actual costs to obtain the order?

Also, many condominium declarations contain “indemnification” provisions, which state that landlords are jointly liable for expenses or damages suffered by a condominium corporation as a result of any act or omission of the owner’s tenants.  I wonder if the presence of such an indemnification provision might have affected the court’s decision in this case.]