



COURT OF APPEAL FOR ONTARIO

CITATION: Carleton Condominium Corporation No. 396 v. Burdet,
    2018 ONCA 342

DATE: 20180409

DOCKET: C64330

Hourigan, Pardu and Huscroft JJ.A.

BETWEEN

Carleton Condominium Corporation No. 396

Plaintiff/Respondent in Appeal

and

Claude
    Alain Burdet in Trust, Claude-Alain Burdet,

1457563
    Ontario Corporation, 1457563 Ontario Corporation in Trust,

Janet
    Sue Burdet and Nelson Street Law Offices

Defendants/Appellants

and

LAcademie Christiane Sauve Inc.

International Beauty Depot

Defendants

Claude-Alain Burdet, for the appellants

Gary Boyd, for the respondent

Heard: April 5, 2018

On appeal from the order of Justice S. Gomery of the Superior
    Court of Justice, dated August 18, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellants were found liable
    following a trial for condominium arrears owing to the respondent. Their appeal
    of that judgment to this court was unsuccessful, as was their motion for leave
    to appeal with the Supreme Court of Canada.

[2]

The appellants brought a motion in the
    Superior Court pursuant to r. 59.06(2) to set aside the judgment and for an
    order for judgment in their favour. The motion judge dismissed that motion
    pursuant to r. 2.1.02(1), with costs fixed at $500 payable to the respondent.

[3]

We see no basis to interfere with the
    order of the motion judge.

[4]

We do not accept the submission that this
    court should interfere on the basis of a denial of procedural fairness. We
    agree that the motion judge should have either invited submissions or ordered
    explicitly that written submissions were not required. However, as we read her
    reasons she implicitly ordered that written submissions were not required. That
    decision was free from error.

[5]

It is clear on the face of the r.
    59.06(2) motion record that it is frivolous, vexatious and an abuse of process.
    The relief sought went well beyond what would have been permissible on such a
    motion. There were no new facts, as the very set-off issue argument made by the
    appellant now was made below before the trial judge. In any event, s. 84(3) of
    the
Condominium Act
provides
    that an owner is not exempt from the obligation to contribute to common
    expenses even if the owner is making a claim against the corporation. We also
    note that the appellants were well aware of the request by the respondent to
    have the case dismissed pursuant to r. 2.1.

[6]

The appeal is dismissed with costs of the
    appeal payable by the appellants to the respondent in the all-inclusive sum of
    $16,000.


