Part 27 published on 01/08/09
Appeal allowed in part. No actionable harassment. Special costs award.
The Ontario Superior Court had ordered that Mr. Lahrkamp be restrained in certain respects. [See Condo Case Across Canada – Part 24, November 2008.] Mr. Lahrkamp appealed.
On appeal, the Court of Appeal held that the Supreme Court’s Order was, in some respects, too extreme. The Court of Appeal said:
Given the respondent’s acknowledgement that the appellant’s behaviour did not amount to actionable harassment, we were not persuaded that the orders made by the application judge prohibiting the appellant from exercising his statutory right to examine the respondent’s records, coming within 25 feet of its management office, or communicating with members of the Board of Directors or management staff other than in writing, were supportable. Accordingly, we would set aside these injunctive aspects of the application judge’s order.
The Court of Appeal left in place the other aspects of the lower Court’s Order, namely that Mr. Lahrkamp make his requests to examine documents or for copies of documents in writing, that he not make more than one request with respect to the same record, and that he pay in advance the reasonable photocopying charges for any copies of records that he requests.
On the question of costs, Mr. Larhkamp was awarded $20,000.00 for the costs of the appeal and the costs awarded to the condominium corporation on the lower Court application were also reduced to $20,000.00. The Court of Appeal added the following sentence:
This amount includes the ‘additional actual costs’ factor under Section 134(5) of the Condominium Act.
Editorial Note: I find the last sentence of the Court of Appeal’s decision most interesting: “This amount includes the ‘additional actual costs’ factor under Section 134(5) of the Condominium Act”. I wonder: On successful applications by condominium corporations, will the respondents now be attempting in many cases to have the Court confirm that the costs award in favour of the condominium corporation includes the “additional actual costs” factor under Section 134(5) of the Condominium Act? Is this a means by which owner respondents can try to avoid the powerful effects of Section 134(5)? And is such an order truly binding and effective if the corporation’s “additional actual costs” (reasonably and fairly assessed) in fact exceed the Court’s cost award? I must say that I would feel uneasy counseling a condominium corporation, in the face of such an Order, to seek recovery of any additional amounts (based upon Section 134(5)).