



COURT OF APPEAL FOR ONTARIO

CITATION: Ottawa-Carleton Standard
Condominium Corporation No. 671 v. Friend, 2021 ONCA 666

DATE: 20210927

DOCKET: C69072



Watt, Benotto and Trotter JJ.A.

BETWEEN

Ottawa-Carleton Standard
Condominium Corporation No. 671

Applicant (Respondent)

and

Anthony Marcus Friend and
Henriette Friend

Respondents (Appellants)



Samuel Zakhour, for the appellants

Cheryll Wood and David Lu, for the
respondent

Heard: September 22, 2021 by
video conference

On appeal from
the order of Justice Paul B. Kane of the Superior Court of Justice dated June
4, 2020.

REASONS FOR DECISION

[1]

The appellants are condominium owners. The
appellant, Mr. Friend, has a long-standing dispute with the condominium
corporations Board of Directors and employees, dating back to 2011. He has
refused to follow the condominiums by-laws and rules. He has interfered with contractors
attempting to carry out work in the building. He has engaged in a campaign of
harassment and rude and demeaning behaviour aimed at members of the Board of
Directors and employees of the condominium. He has physically accosted the
President of the Board.

[2]

In 2019, the respondent obtained an interim
injunction that restricted Mr. Friends ability to communicate with the people
he has harassed and/or accosted. He persisted in his behaviour. Consequently, the
respondent condominium corporation brought an application under s. 134(1) of
the
Condominium Act
, 1998
, S.O. 1998, c. 19, and r. 14.05(2) of
the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, seeking a
permanent injunction against Mr. Friend.

[3]

The application judge found that Mr. Friend was
in violation of s. 117 of the
Condominium Act
, which provides: No
person shall permit a condition to exist or carry on an activity in a unit or
in the common elements if the condition or the activity is likely to damage the
property or cause injury to an individual. The application judge held that
injury includes psychological harm.

[4]

The application judge further held that, Mr.
Friends persistent and ongoing breaches with aggression of the Act and the
Condominiums declaration and rules must be halted. He ordered that Mr. Friend
cease and desist in conduct that contravenes the Act and/or the Condominiums
declaration, by-laws and rules. He restricted Mr. Friends ability to
communicate with members of the condominium community, including their families.
A number of exceptions, however, were built into this prohibition.

[5]

The appellants challenge the legality and
appropriateness of this order. They also apply to adduce fresh evidence in the
form of Mr. Friends affidavit in which he purports to show that he was treated
unfairly at the hearing of the application. We admit the fresh evidence for
this limited purpose. It is not admissible, and is irrelevant, to the
substantive issues decided by the application judge.

[6]

The appellants advance a number of grounds of
appeal. They submit that the application judge had no jurisdiction to order a
permanent injunction because there was no underlying action to which it could
attach. We disagree. The application was properly brought under s. 134 of the
Condominium
Act
and provided the jurisdictional footing for the order that was made.

[7]

The appellants submit that the application judge
erred in failing to apply the proper test for a permanent injunction. More
specifically, the appellants submit that the trial judge failed to appreciate
that the test for obtaining a permanent injunction is different from the test
for an interlocutory injunction. While the trial judge did not specifically
advert to the test he applied in making the order, the order that he made 
limiting communication between Mr. Friend and various members of the
condominium community   was authorized by s. 134(3) of the
Condominium Act
,
which permits a judge to grant such other relief as is fair and equitable in
the circumstances.

[8]

The order was fair and equitable in the
circumstances, based on the findings that the application judge made about Mr.
Friends behaviour and its impact on those affected. Mr. Friends offensive
conduct continued after the interim injunction was in place. This, in itself,
amply justified the application judges order.

[9]

The appellants submit that the proceedings were
unfair because they were denied an adjournment. We disagree. The decision to
grant an adjournment is a discretionary one that must be afforded deference on
appeal. In this case, the application judge gave thorough reasons for refusing
an adjournment, noting that the request was, but one of a pattern of
adjournment requests by Mr. Friend.

[10]

We also disagree with the submission that the
proceeding was unfair because the application judge failed to consider Mr.
Friends position on contentious matters. Mr. Friend did not file an affidavit;
instead, he relied on a slide presentation and an affidavit filed in a related
lien action. As the application judge said, [m]uch of the materials filed by
Mr. Friend do not respond to the issues on this application and instead recite
his disputes with the Condominium dating back to 2011 and unrelated matters
such as the Condominiums 2019 Auditors Report.

[11]

Lastly, and although not pressed in oral
submissions, the appellants submit that the application judge should have
converted the proceeding to an action because there were facts in dispute.
Again we do not agree. The material facts were either admitted to by Mr. Friend
or simply not addressed. The application judges decision was reasonable.

[12]

Accordingly, the appeal is dismissed. We award
costs to the respondent in the amount of $12,500, inclusive of costs and
disbursements.

David Watt J.A.

M.L. Benotto J.A.

Gary Trotter J.A.


