



COURT OF APPEAL FOR ONTARIO

CITATION: Seto v. Peel Condominium Corporation No. 492, 2016
    ONCA 548

DATE:  20160708

DOCKET: C61424

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Karen Seto, Patrick Wong and Philip Lam

Respondents

and

Peel Condominium Corporation No. 492

Appellant

Carol A. Dirks, for the appellant

Bradley Chaplick, for the respondents

Heard:  June 21, 2016

On appeal from the orders of Justice James F. Diamond of
    the Superior Court of Justice, dated November 12, 2015, with reasons reported
    at 2015 ONSC 6785; December 15, 2015; and January 20, 2016, with reasons
    reported at 2016 ONSC 477.

ENDORSEMENT

[1]

The application judge found that the appellant condominium corporations
    declaration required the costs of waste disposal for food court waste to be
    paid as common expenses by all unit owners, not by the respondent owners of
    food court units. It is not contested that the cost of removing and disposing
    of food court garbage is a major budget item and that the food court units
    generate significantly more garbage than the other units and the common
    elements.

[2]

The evidence shows that charges for those costs had been levied by the
    condominium corporation on the owners of food court units for many years
    without apparent complaint. That changed in 2012 when a large increase was
    levied upon the advent of a new board of directors.

[3]

The case turns on the interpretation of the condominiums Declaration.

[4]

The food court itself is described in the Declaration as an exclusive
    use common element. Section 12(c) provides:

(c) The Owners of Units 23 to 30, inclusive, Level 1, shall
    jointly have the right to the exclusive use of exclusive use Common Area A-1,
    Level 1, which shall be for the purpose of providing a seating area portion of
    the Food Court Area for which such Units shall be utilized.
The Owners of
    Units 23 to 30, inclusive, Level 1, shall be responsible for all costs of
    cleaning, furnishing, maintaining, policing and managing the Food Court Area.
Specifically allocated to Units 23 to 30, inclusive, Level 1, shall be the
    separate costs incurred by the Corporation
for such purposes
, which
    shall be allocated as a separate item of Common Expense exclusive to those
    Units. [Emphasis added.]

[5]

Schedule E of the Declaration is titled Specification of Common
    Expenses. Clause (m) of Schedule E provides:

(m) All costs of maintaining, repairing, cleaning, policing and
    managing the Food Court area shall be allocated separately and equally to each
    of the Owners of Units 23 to 30, inclusive, Level 1.

[6]

Clause (b)(vi) of Schedule E provides:

(b) All sums of money payable by the Corporation on account of
    any and all public and private suppliers ... including, without limiting the
    generality of the foregoing, monies payable on account of:



(vi) Waste disposal for the Common Elements only.

[7]

Finally, s. 15 of the Declaration provides, in part:

All refuse and garbage must be retained by each Owner within
    such Owners Unit and shall be the responsibility and obligation of each Owner
    to dispose of such refuse and garbage on a timely basis and in accordance with
    the Rules of the Corporation in this regard.

[8]

The application judge stated that his task was to reconcile these
    provisions and, relying on clause (b)(vi) of Schedule E, concluded that the
    specific cost of waste disposal from common elements, including the Food Court
    seating area, is a regular common expense to be shared among all Mall unit
    owners.

[9]

The condominium corporation asserts that the references to cleaning in
    s. 12(c) of the Declaration and in clause (m) of Schedule E give the
    corporation authority to charge the respondents directly for disposal costs for
    waste from the food court seating area. However, neither of those provisions
    deals expressly with such costs, while paragraph (b)(vi) of Schedule E does
    so by referring to Waste disposal for the Common Elements only. The food
    court seating area is plainly a common element. On that basis the application
    judge ruled in favour of the food court unit owners.

[10]

The application judge's ruling is one of mixed fact and law that
    attracts deference on appeal:
Sattva Capital Corp. v. Creston Moly Corp
.,
    2014 SCC 53, [2014] 2 S.C.R. 633. The appellant has not demonstrated that the
    application judge made a palpable and overriding error or an extricable error
    of law in his interpretation of the declaration.

[11]

The appellant argues that the application judge erred in law by failing
    to consider the past practice of charging waste disposal fees directly to the
    food court unit owners when interpreting the provisions of the declaration.

[12]

We disagree. The application judge did refer to the past practice at
    para. 22 of his reasons where he rejected the submission that the respondents
    had lost the right to complain of the charges through acquiescence.  The
    argument advanced on appeal has no merit since there is no evidence regarding
    the genesis of this conduct or what inferences should be drawn from it that
    would contradict the plain language of the declaration.

[13]

Accordingly, we reject the contention that the application judge's
    interpretation should be set aside on appeal.

[14]

The appellant points out that in the remedy provided, the application
    judge effectively excused the food court unit owners from having to pay for the
    disposal of their own individual unit wastes at their own costs, despite the
    express provision of s. 15 of the declaration. This was a clear error. We are
    unable to determine from the record, with any degree of confidence, what the
    amount of this expense might be. We therefore remit the determination of the
    amount of the expense associated with the disposal of waste for the individual
    food court units to the application judge, in the event that the parties are
    unable to settle the issue.

[15]

Accordingly, the appeal is allowed in part.

[16]

Costs of this appeal to the respondents fixed in the amount of $6,500.
    This amount takes account of the marginal success of the appellant.

Robert
    J. Sharpe J.A.

P.
    Lauwers J.A.

B.W.
    Miller J.A.


