



COURT OF APPEAL FOR ONTARIO

CITATION: 1349425 Ontario Limited (Venice Fitness) v.
    Metropolitan Toronto Condominium Corporation No. 1392, 2014 ONCA 300

DATE: 20140417

DOCKET: C57600

Weiler, Lauwers and Pardu JJ.A.

BETWEEN

1349425
    Ontario Limited c.o.b.
    as Venice Fitness, 957068
    Ontario Inc., 957069 Ontario Inc., 954393 Ontario Inc. and
    960841 Ontario Inc.

Plaintiffs (Appellants)

and

Metropolitan
    Toronto Condominium Corporation No. 1392

Defendant (Respondent)

F. Scott Turton, for the appellants

Michael Campbell, for the respondent

Heard: April 10, 2014

On appeal from the order of Justice Anne Mullins of the Superior
    Court of Justice, dated September 15, 2011.

ENDORSEMENT

[1]

The Appellant 1349425 Ontario Limited, carrying on business as Venice
    Fitness (Venice Fitness) appeals from the summary dismissal of its claims
    that the Respondent condominium corporation (1392) wrongfully registered
    liens against condominium units which it occupied to operate its business. 
    Venice Fitness leased those premises from the owners of the units, being the
    four numbered corporations which are the other Appellants.

[2]

There was no dispute that payments of common expenses for the units were
    in arrears.  While the owners of the units were legally responsible to make the
    payments, in practice Venice Fitness did so.  The Appellant argues that the
    condominium corporation led it to believe, by adopting a long practice of
    tolerating late payments, that it would not rigidly enforce timely payment of
    the fees and would not charge interest; it was accordingly wrong to abruptly
    register liens without warning, especially after the Appellant Venice Fitness tendered
    payment in full in the exact amount demanded by the condominium corporation,
    which was refused.

[3]

The condo fees in arrears have now been paid.  The dispute remaining is
    the claim by the condo corporation for legal fees for filing and discharging
    the liens amounting to $30,597.58.

[4]

The motion judge dismissed the Appellants claim for a declaration that
    Metropolitan Toronto Condominium Corporation No. 1392 wrongfully registered the
    liens on this basis: I find that the defendants conduct did not constitute
    such so as to raise a promissory estoppel nor was the defendant unjustly
    enriched.  She dismissed the Respondents motion for summary judgment:
    insofar as the claim for the legal expenses paid in relation to the lien registration,
    and added: There shall be a trial of that issue.

[5]

The motion judge did not make any factual findings to support the
    conclusions she expressed, nor did she link any factual findings to the
    applicable law; it is not possible on this appeal to determine whether her
    decision was correct.

[6]

The order dismissed the claim in para. 1(b) of the Statement of Claim,
    which sought a declaration that the Respondent wrongfully registered the
    liens.  In the face of that language, the Appellants concern is that this
    dismissal forecloses the argument that the Respondent should not be able to
    recover any legal fees arising out of its conduct in registering the liens,
    quite apart from their clear ability to contest the reasonableness of the
    amount of those fees.

[7]

In oral argument the Respondent agreed that the Appellants are not
    foreclosed from making this argument.

[8]

The order made by the motion judge does not make this clear.

[9]

The appeal is therefore allowed to the extent of adding to the order a
    proviso that, at the trial of the issue of 1392s entitlement to reimbursement
    for the legal fees for registration and discharge of the liens, the Appellants
    shall be able to argue both entitlement and amount, and to raise the argument
    that because of the Respondents conduct the Appellants should not be obliged
    to pay the fees or that their obligations should be reduced.

[10]

The
    costs order of the motion judge awarding costs to the Respondent is set aside,
    and those costs are reserved to the discretion of the judge ultimately hearing
    the trial.  The only issue in dispute before the motion judge was the issue of
    reimbursement of the costs of registration and discharge of the liens, and the
    outcome of the trial of that issue will have a bearing on determination of the
    costs of the motion.  Proportionality will likely have a substantial impact on
    any costs ultimately awarded.

[11]

The
    Appellants were successful on this appeal in obtaining clarification of the
    order appealed from.  Having regard to the manner in which this dispute arose,
    and having regard to proportionality between the amounts in issue and the
    costs, costs of the appeal awarded in favour of the Appellants fixed at
    $5000.00, all inclusive.

K.M. Weiler J.A.

P. Lauwers J.A.

G. Pardu J.A.


