



COURT OF APPEAL FOR ONTARIO

CITATION: Hull v. Metropolitan Toronto Condominium
    Corporation No. 721, 2015 ONCA 307

DATE: 20150504

DOCKET: C59692

Simmons, Gillese and Rouleau JJ.A.

BETWEEN

Thomas Ian Hull

Applicant (Appellant)

and

Metropolitan
    Toronto Condominium Corporation No. 721,

Marshall Cohen and Bill
    Deluce

Respondents (Respondents in Appeal)

Michael A. Spears and Michael John Campbell, for the
    appellant

Lea Nebel and Varoujan Arman, for the respondents

Heard and released orally: April 28, 2015

On appeal from the judgment of Justice Kevin W. Whitaker
    of the Superior Court of Justice, dated October 28, 2014.

ENDORSEMENT

[1]

The appellant appeals from an order dismissing his application for
    relief under ss. 134 and 135 of the
Condominium Act, 1998
, S.O. 1998,
    c. 19.

[2]

For several reasons, we accept the appellants submissions that the
    application judges reasons are inadequate.

[3]

First, the reasons fail to reflect that the application judge
    appreciated the issues raised on the application. Although the application
    judge lists six issues that were in play, his list is both incomplete and
    inaccurate. For example, the application judge described one of the issues as
    being that the appellant was coerced and pressured into supporting a special
    assessment when the appellants actual objection was that the special
    assessment was not properly authorized and that the condominium corporation
    should not have filed a lien against his property for failing to pay the
    assessment.

[4]

Second, the application judge failed to set out the correct legal test
    for relief under s. 135 of the
Condominium Act
. The Act stipulates
    that the court may make an order if the court determines that the conduct of
    an owner, [or] a corporation  is  oppressive or unfairly prejudicial to the
    applicant or unfairly disregards the interests of the applicant. To the extent
    that the application judge referred to a test, he made the conclusory statement
    that he was not persuaded that the [appellant] has been treated unfairly, in
    bad faith or in a discriminatory fashion. At a minimum, the application judge
    erred by failing to refer to the unfairly disregards the interests of the
    applicant branch of the test, which was central to the issues on the
    application before him.

[5]

Third, while the application judge concluded that there had been no
    breaches of the Act, he gives no basis for this conclusion. To reach this
    conclusion, he would have had to have made findings of fact, and this would have
    necessitated resolving conflicts in the evidence. This was not done. Moreover,
    this conclusion appears to be contradicted by the application judges earlier
    statement that deficiencies the appellant complained of had been remedied by
    the time the application was heard.

[6]

Finally, the remedies under the
Condominium Act
are
    discretionary. Beyond expressing a conclusion, there is no indication in the
    application judges reasons as to how and on what basis he exercised any
    discretion.

[7]

In these circumstances, where the application judges reasons contain
    virtually none of the components necessary to resolve this matter, fairness
    dictates that the application be remitted for a fresh hearing with costs of the
    initial hearing reserved to the judge on the new hearing.

[8]

Costs of the appeal are to the appellant on a partial indemnity scale
    fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.

Janet Simmons
    J.A.

Eileen E. Gillese J.A.

Paul Rouleau J.A.



