22/02/2021 – Jurisdiction Ontario
Part 73 published on 01/03/2021
Court orders enforcement of arbitrator’s decision respecting replacement of Kitec plumbing and respecting costs
Kitec plumbing, located in the units, required replacement. Following notice from the condominium corporation, the owner had refused to replace the Kitec plumbing in his unit and had also refused to allow the corporation to replace the plumbing. The condominium corporation obtained an arbitration award allowing the corporation to replace the plumbing. The arbitrator also ordered the owner to pay costs to the condominium corporation, including enforcement costs incurred for the failed mediation, which of course were incurred prior to the arbitration process. The arbitrator also ordered that those amounts could be added to the owner’s common expenses and secured by lien.
The owner still refused to comply.
The Court ordered that the arbitrator’s award be enforced, including the cost award. The Court also declared that the condominium corporation’s resulting lien was valid. On the question of the validity of the arbitrator’s cost award (and the lien), the Court said that the arbitrator had full authority to grant an award of costs in relation to the arbitration procedure and also said:
The arbitrator also relied on the Condominium’s Declaration and By-Laws, which expressly provide that the costs are recoverable as a common expense. Article V of the Declaration deals with maintenance and repairs. It provides that the Corporation “shall make any repairs that any owner is obligated to make and that he does not make within a reasonable time after written notice is given to such owner by the Corporation.” Article V goes on to say that the owner shall “reimburse the Corporation in full for the cost of such repairs including any legal fees and collection costs incurred by the Corporation in order to collect the costs of such repairs.” Finally, Article V says that the costs of the repairs will be treated and recoverable as common expenses.
Article 14.01 of By-Law No. 4 provides that each owner will indemnify the Condominium for any “loss, cost, damages, injury or liability” resulting from the owner’s acts or omissions that are not covered by insurance. Article 14.02 enumerates the types of losses covered by the indemnification provision, including repair charges and all legal costs incurred by the Corporation as a result of a breach of the Declaration, by-laws or rules of the Condominium. Finally, Article 14.03 states that any costs shall be recoverable as common expenses.
Given the language of the Declaration and By-Law No. 4, the arbitrator was entitled to order that his cost award be treated as a common expense and be recoverable as such. In fact, the Condominium would have been entitled to treat the arbitrator’s cost order as a common expense under the Declaration and By-Law No. 4 even if the arbitrator had not made an order to that effect.
https://www.canlii.org/en/on/onsc/doc/2021/2021onsc1306/2021onsc1306.pdf
Toronto Standard Condominium Corporation No. 1466 v. Weinstein