Part 39 published on 01/08/12
Condominium Corporation rules take precedence over a tenant’s lease. Owner’s appeal dismissed. Corporation’s appeal respecting costs allowed.
The Court of Appeal summarized the issue as follows: “Can a grocery store in a commercial condominium unit display its merchandise on the adjacent sidewalk? The rules of the condominium corporation say no. The terms of grocery store’s lease say yes.”
The Application Judge ruled in the Condominium Corporation’s favour and awarded the Condominium Corporation roughly half of its claimed costs. [See Condo Cases Across Canada, Part 35, September 2011] The Court of Appeal also ruled in favour of the Condominium Corporation. The Court of Appeal said:
I agree with the application judge that the condominium corporation’s rules take precedence over the grocery store’s lease.
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There was evidence before the application judge to support her finding that the limitation period had not expired because of the repeated, and varied, nature of (the Tenant’s) misconduct.
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In my view, there was ample evidence to support the application judge’s conclusion that TSCC did not act oppressively against Baghai and Rabba. I also accept that the evidence supported the application judge’s finding in respect of the lack of a permanent agreement and therefore her conclusion that there was no agreement to enforce.
The Court of Appeal accordingly dismissed the owner’s appeal.
The Court ordered that the question of the Corporation’s costs be remitted to the trial judge for reconsideration. Since the Court had been asked by the Condominium Corporation to determine the “additional actual cost” to which the Corporation was entitled under s.134 (5) of the Condominium Act, 1998, it was proper that the Court determine that amount. However, in doing so, it was not clear that the trial judge had applied the proper principles. The Court of Appeal said that “the total costs (including the amount contemplated by s.134 (5)) should be the quantum of costs the successful party is reasonably expected to pay its own lawyer”. The trial judge is now required to determine this quantum.