12/04/2018 – Jurisdiction Ontario
Part 62 published on 01/06/2018
Condominium corporation denied leave to appeal arbitrator’s decision respecting owner’s change to the common elements
The condominium corporation asserted that the owner had made modifications to the common elements that were not in compliance with the agreement between the owner and the corporation which had been executed in accordance with Section 98 of the Condominium Act, 1998. The specific allegation was that the modifications had not been carried out in accordance with agreed drawings. The condominium corporation ultimately submitted the dispute to arbitration. The Arbitrator held that the modifications were in compliance with the Section 98 Agreement, and specifically with drawings that had been accepted by the Board. The claims of the condominium corporation were accordingly dismissed.
The condominium corporation applied to have the Arbitrator’s award set aside on the basis of fraudulent evidence. The Court dismissed that application, finding that the tests for proof of fraudulent evidence had not been met.
The condominium corporation also sought leave to appeal the Arbitrator’s award. The Court also denied leave to appeal, based on the Court’s finding that the key ground of appeal was not a question of law. The condominium corporation’s key ground was that the Arbitrator had misconstrued the Section 98 Agreement. On this point, the Court said:
Without being categorical about whether the interpretation of a Section 98 Agreement is an issue of law, I find that in the case at bar its interpretation was a matter of fact or a matter of mixed fact and law and accordingly the Condominium Corporation does not have an appeal of a question of law under s. 45 of the Arbitration Act, 1991.
Toronto Standard Condominium Corp. No. 2256 v. Paluszkiewicz