



COURT OF APPEAL FOR ONTARIO

CITATION: Temedio v. Niagara North Condominium Corporation
    No. 6, 2020 ONCA 17

DATE: 20200110

DOCKET: M50995 (C66339)

Paciocco, Harvison Young and
    Zarnett JJ.A.

BETWEEN

Jean Temedio

Applicant

(Appellant/Responding
    Party)

and

Niagara
    North Condominium Corporation No. 6

and
    Simpson Wigle Law LLP

Respondents

(Respondents/Moving
    Parties)

Erik Savas, for the appellant

Benjamin J. Rutherford, for the respondents

Heard: In writing

REASONS FOR DECISION

[1]

Before this panel, Niagara North Condominium Corporation No. 6 (Niagara)
    and Simpson Wigle Law LLP (together referred to as the respondents/moving
    parties) unsuccessfully defended an appeal brought by Jean Temedio (
Temedio
    v. Niagara North Condominium Corporation No. 6
, 2019 ONCA 762). In that appeal
    decision, this panel ordered that an application judge, McArthur J., erred by
    failing to find special circumstances entitling Ms. Temedio to conduct an
    otherwise out-of-time assessment of Simpson Wigle Law LLPs accounts, which
    were incurred in the enforcement of by-law provisions that Ms. Temedio was
    allegedly violating. Although those legal accounts were incurred by Niagara,
    Niagara claims that Ms. Temedio is obliged to pay them pursuant to s. 134 of
    the
Condominium Act, 1998
, S.O. 1998, c. 19 and the condominium by-laws
    governing Ms. Temedios ownership of a condominium in a building owned by
    Niagara.

[2]

The respondents/moving parties now ask this panel to exercise this
    courts exceptional authority to reconsider its special circumstance finding,
    and hence the outcome of its decision. They contend that reconsideration is
    clearly in the interests of justice because this panel relied on a special
    circumstance that Ms. Temedio had not put before the application judge or the
    appeal panel, and that the respondents/moving parties could have answered conclusively
    had it known this circumstance was going to be considered. Specifically, in
    finding special circumstances, this panel relied upon the decision of an
    earlier application judge, Taylor J. The impugned passages from this courts
    appeal decision read:

[30] Similarly, a consideration of the length of time spent
    arguing the application, the number of pages of materials filed, or whether Ms.
    Temedios counsel correctly predicted how large the Corporations claim for
    legal fees would be, are not determinative of whether special circumstances
    exist for Ms. Temedio to assess the bills. This is especially so given that
    Taylor J. made a finding about why the Corporations legal bills may have risen
    to what they were, which raise questions about the fees charged. The
    application judge failed to take this into account.

[31] Taylor J. voiced his disapproval of the conduct of the
    Corporation in seeking the extreme remedy of eviction (which the Corporation
    did not obtain) and observed that a less heavy-handed approach on its part
    might have avoided litigation altogether. Ms. Temedio was on the receiving end
    of that unsuccessful strategy and approach, yet to the extent the legal bills
    to the Corporation included time spent on it, Ms. Temedio is being asked to pay
    for it. The extent to which the fees charged may include amounts for pursuing
    the failed eviction strategy and the heavy-handed approach raise questions
    about the amount of the legal bills. So too does the fact that Taylor J.
    limited the Corporation to an award of $2,500 in costs for the compliance
    proceeding; this also raises a question about the total fees of $52,000 charged
    for that proceeding.

[3]

We deny the application for reconsideration. The appeal was from an
    application in which Ms. Temedio argued that special circumstances existed
    because the accounts she was being told to pay were excessive. In the appeal,
    Ms. Temedio pleaded and argued that the application judge erred in not finding
    special circumstances. The reasonableness of the accounts as a special
    consideration was therefore squarely before this court.

[4]

There is clear relevance between the findings made by an application
    judge relating to legal costs and the reasonableness of legal costs. Taylor J.s
    decision on costs was referenced in the materials filed by both parties in this
    court and before the application judge. The respondents/moving parties factum
    on appeal described Taylor J.s decision in detail, including the costs
    decision he made.

[5]

Moreover, the decision of Taylor J. was but one of several factors
    relied upon by this panel and was offered in support of the more general
    conclusion that the time spent arguing an application and the number of pages of
    material filed cannot be determinative of whether special circumstances exist. Taylor
    J.s ruling was not decisive in the appeal.

[6]

Even if it had been true that the respondents/moving parties were not
    reasonably alerted to the materiality of Taylor J.s decision during the appeal,
    the information that the respondents/moving parties seek to rely on could not
    have affected the result.

[7]

First, the challenges the respondents/moving parties make to the
    propriety and reasonableness of the decision of Taylor J. represent an improper
    collateral attack on that decision, which was never appealed nor reviewed. Those
    submissions are not properly before this panel.

[8]

Second, proof that the respondents/moving parties made offers to settle
    the litigation that Ms. Temedio did not accept provides no answer to whether
    there were special circumstances to justify an assessment, whatever the
    relevance of the offers to settle might be on an ultimate assessment. Taylor J.s
    point was that had the respondents/moving parties taken a less heavy-handed
    approach, the litigation that generated the bulk of the accounts could have
    been avoided. The fact that the respondents/moving parties offered to settle
    the litigation that Taylor J. considered to have been unnecessarily provoked by
    the respondents/moving parties cannot answer the material concern that costs
    incurred may not have been necessary.

[9]

The application for reconsideration is denied. The parties will have ten
    days following the release of this decision to provide costs submission not to
    exceed three pages, as well as bills of costs relating to the costs for of this
    motion.

David
    M. Paciocco J.A.

Harvison
    Young J.A.

B.
    Zarnett J.A.


