



COURT OF APPEAL FOR ONTARIO

CITATION: Freund v. Toronto Standard Condominium Corporation
    No. 1703, 2018 ONCA 692

DATE: 20180821

DOCKET: C64829

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Nuala Donly Freund

Applicant
(Appellant)

and

Toronto Standard Condominium Corporation No. 1703

Respondent
(Respondent)

Jordan Goldblatt, for the appellant

Mark H. Arnold, for the respondent

Heard: August 17, 2018

On appeal from the judgment of Justice J.A.
    Desotti of the Superior Court of Justice, dated December 14, 2017, with reasons
    reported at 2017 ONSC 7169, and on leave to cross-appeal from the costs order
    dated February 5, 2018, with reasons reported at 2018 ONSC 840.

REASONS FOR DECISION

[1]

The appellant appeals
    from the dismissal of her application under ss. 119 and 135 of the
Condominium Act
, 1998, S.O. 1998, c. 19
.

[2]

The application
    arises out of the appellants objection to the renovations that the respondent
    proposed to carry out to the condominium units that formed part of the
    condominiums hotel rental pool and to the removal of her unit from the pool
    when she refused to permit the renovations to her unit to bring it up to the
    luxury standard mandated by the respondent and the other participants in the
    pool.  The appellant commenced her application following her unsuccessful
    arbitration concerning the respondents right to require the renovations as a
    condition of her unit remaining in the pool.

[3]

The appellant
    submits that t
he
    application judge erred in dismissing her application on the basis that she lacked
    standing to bring her application because she was no longer the owner of her
    unit.  Second, the appellant maintains that the application judge found that
    the respondent was in breach of s. 19 of its own Declaration because it failed
    to obtain an architect or an engineer certificate for the proposed renovations. 
    As a result, the application judge erred in concluding that none of the
    respondents impugned conduct was oppressive, threatening or unfairly prejudicial,
    nor unfairly disregarded the interests of the appellant.

[4]

We
    find it necessary to deal with only the second submission
.

[5]

The application
    judge did not determine there was a breach of the Declaration.  He found no
    oppressive conduct by the respondent.  The appellant failed to demonstrate that
    the proposed renovations required a certificate from an architect or engineer. 
    The application judge concluded that even if they did, the lack of a
    certificate did not amount to a breach of contract, as conceded by the
    appellants counsel on the application.  He accepted the findings of the
    arbitrator that there was no breach by the respondent of its obligations in
    requiring the unit renovations as a condition of remaining in the hotel rental
    pool and that it was the appellant who was in breach of her obligation to maintain
    her unit in accordance with the luxury standard recognized and adopted by the
    other participating unit owners.

[6]

We do not accept
    the appellants submission that she would not have incurred the legal costs
    related to the arbitration had the certificates been provided as she says was
    required under the Declaration.  As the application judge found, the appellants
    real objection was the cost occasioned by the renovations, and she wanted to
    stay in the hotel rental pool without the renovations.  The application judge
    determined that the appellant was not obliged to carry out the proposed
    renovations to her unit; however, she could not then insist on remaining in the
    hotel rental pool when her unit did not meet the requisite luxury standard of
    all the other units in the pool.  Moreover, the appellant was not without
    choices in that she could rent out her unit in its current condition or use it
    as a residential suite, as contemplated by the Declaration.

[7]

The application
    judges conclusions were amply supported by the record and contain no
    reversible error.

[8]

Given our reasons
    disposing of the appeal, it is not necessary to determine whether the
    application judge erred in holding that the appellant had no standing to bring
    her application because she was no longer a unit owner.  However, we should not
    be taken as agreeing with or otherwise upholding the application judges
    decision on this issue.

Disposition

[9]

For these reasons,
    the appeal is dismissed.

[10]

The respondent seeks
    costs on a substantial indemnity scale.  It submits that this court should take
    into account a settlement offer made on the application below and find that
    this appeal represents the latest in a long serious of unmeritorious
    proceedings instigated by the appellants common law spouse against the
    respondent.

[11]

We are not
    persuaded by these submissions.  First, while unsuccessful, the appeal was not
    frivolous, vexatious or an abuse of process, and does not attract the
    extraordinary level of substantial indemnity costs.  Further, we are not
    obliged or inclined to take into account a settlement offer that the
    application judge already considered in making his costs award.  The respondent
    abandoned its cross-appeal of that costs award.

[12]

Accordingly, the
    respondent is entitled to its partial indemnity costs in the amount of $15,000,
    including disbursements and all applicable taxes.

Robert J.
    Sharpe J.A.

R.G.
    Juriansz J.A.

L.B.
    Roberts J.A.


