



COURT OF APPEAL FOR ONTARIO

CITATION:

Carleton Condominium Corporation No. 396 v. Burdet, 2012 ONCA 234

DATE: 20120413

DOCKET: C54549

Cronk and Epstein JJ.A. and Strathy J. (
ad
    hoc
)

BETWEEN

Carleton Condominium Corporation No. 396

Plaintiff (Respondent in Appeal)

and

Claude-Alain Burdet, Claude Alain Burdet,
    in trust,

1457563 Ontario Corporation, 1457563
    Ontario Corporation in trust,

Janet Sue Burdet, Nelson Street Law
    Offices,

LAcademie Christiane Sauve Inc. and
    International Beauty Depot

Defendants (Appellants)

Jonathan H. Fine and Claude-Alain Burdet, for the
    appellants

Janice B. Payne and Nancy Houle, for the respondent

Heard: March 22, 2012

On appeal from the order of Justice Paul Kane of the
    Superior Court of Justice, dated September 30, 2011.

ENDORSEMENT

[1]

The appellants, (the Burdet Group), appeal an aspect of the order of
    Kane J. dated September 30, 2011, granting partial summary judgment to the
    respondent, Carleton Condominium Corporation No. 396 (CCC 396).  The judgment
    amount of $109,440.16, represents arrears of common expense charges (condo
    fees) that the motion judge held the Burdet Group owed in respect of the 21
    units it holds in the 33-unit condominium complex.

[2]

This appeal is one of many court proceedings arising out of a long, bitter
    dispute between the Burdet Group and CCC 396 about voting rights and various
    financial matters. This dispute resulted in this court granting the Burdet Group
    majority voting control of the condominium corporation in 2000.  In 2002, the
    Superior Court issued an order putting the condominium corporation under the
    operating control of an independent administrator, the Condominium Management
    Group Inc. (CMG).  Among other things, the 2002 order stipulates that the
    Burdet Group is to pay its condo fees to CMG.

[3]

In 2005, CCC 396 registered condominium liens against several of the
    Burdet Groups units in order to secure unpaid condo fees. CCC 396 issued
    notices of sale for the units in February 2009 alleging indebtedness in the
    amount of $96,354.34. In response to the notices of sale, the Burdet Group paid
    $104,185.16 to CCC 396s lawyers to be held in trust pending the resolution of
    issues raised in an outstanding motion.  As of April 1, 2009, the Burdet Group
    stopped paying condo fees.

[4]

In June 2009, CCC 396 commenced this action for, among other forms of
    relief, immediate possession of the Burdet Groups units and judgment for condo
    fee arrears. The Burdet Group defended the claim and counterclaimed for various
    forms of relief based in part on allegations that CCC 396 was in breach of several
    provisions of the
Condominium Act, 1998
, S.O. 1998, c. 19.  CCC 396
    brought a motion for summary judgment, claiming judgment for condo fee arrears
    and payment out of the trust funds held by its lawyers.

[5]

Concluding that a trial was needed to determine most of the issues
    between the parties, the motion judge denied the majority of the relief sought and
    ordered that the matter proceed to a trial of an issue under rule 20.04(3).  However,
    since the evidence was clear that the Burdet Group had not paid condo fees since
    April 2009, the motion judge granted partial summary judgment of $109,440.52 
    the then current amount of unpaid condo fee arrears  and ordered CCC 396s
    solicitors to distribute the money in the trust account toward payment of the
    arrears.  He also ordered the Burdet Group to pay its condo fees going forward.

[6]

In this appeal, the Burdet Group submits that the motion judge erred in
    concluding that the claim for condo fee arrears could be resolved by way of partial
    summary judgment. The Burdet Group contends that all the issues raised should
    be considered at once, including issues involving its claims for various
    set-offs, and that the obligation to pay condo fees as of April 2009 should not
    have been separated from the larger issues. According to the Burdet Group, the
    real issue is whether any amount in fact is owing to CCC 396 and, if so, the
    quantum of that amount.  The Burdet Group raises other issues, including the
    applicability of the provisions of the
Condominium Act
,
equitable
    estoppel, and set-off.

[7]

We conclude that the appeal should be dismissed.

[8]

In our view, the motion judge correctly concluded that there was no
    genuine issue requiring a trial in relation to the condo fee arrears from April
    1 2009 through August 2011.  The
Condominium Act
applies to this issue
    between the parties.  The 2002 order did nothing to change that.  In fact, all
    parties rely on the Act in their pleadings.  Significantly, the Burdet Group
    itself invokes the Act in its statement of defence and counterclaim.

[9]

Counsel for the Burdet Group candidly acknowledges that there is no
    statutory or jurisprudential authority for the proposition that the operation
    of the Act has somehow been suspended in relation to CCC 396, even taking into
    consideration the unique circumstances of CCC 396. He also candidly admits that
    if the Act applies, as in our view it does, then s. 84(3)(b) is a complete
    answer to this appeal. That provision states, in effect, that regardless of any
    other claims between the parties, condo fees must be paid.

[10]

The
    Burdet Group has acknowledged that the condo fees for the period April 2009 to August
    2011 have not been paid.  There was no evidence to contradict CCC 396s
    evidence establishing the amount of the monthly condo fees that the motion
    judge used in calculating the amount of the judgment.  Applying the clear
    provisions of the Act, the motion judge correctly found that there was no issue
    requiring a trial with respect to the condo fee arrears.

[11]

The
    motion judge was therefore entitled to order judgment in the amount of $109,440.52
    and that the money held in CCC 396s lawyers trust account be released in
    partial satisfaction of this judgment.  The money had been paid into trust on
    account of disputed condo fee arrears, past and future.  Those arrears were in
    issue on the summary judgment motion.  The trust fund, therefore, was properly
    released to be applied to this judgment.

[12]

The
    issues the Burdet Group raises with respect to the ultimate accounting between
    the parties are the subject of the trial of an issue. The terms of this trial
    were established by the motion judge in his order of January 11, 2012. We
    specifically note para. 2 of that order, which provides that the issues to be
    tried include:


a)

The amount of
      liability to the plaintiff for common expenses of each unit owned by the
      defendants, based on a statement of accounts (the Statement of Accounts),
      including:


i.

an
        account for each of the units owned by

the

defendants

at

the

commencement of the appointment of the
        Administrator in 2002;

ii.

the
        subsequent expenses and receipts of the plaintiff;

iii.

the basis of any
        subsequent special assessments and the per unit share thereof;

iv.

the amount of each
        defendants liability for the subsequent expenses and special assessments;

v.

the periodic
        common expenses per unit;

vi.

the defendants
        payments on account.


b)

The calculation of
      each defendants indebtedness to the plaintiff as of the date of registration
      of liens and Notices of Power of Sale by the plaintiff, if possession or sale
      are claimed by the plaintiff;

c)

The validity of the
      registered liens and the notices of sale served on the defendants; and

d)

Is the plaintiff
      entitled to possession of the subject units?


[13]

While
    counsel for the Burdet Group has expressed concerns about the terms of this
    order, it has not been appealed and therefore is not a matter before this
    court.

[14]

Finally,
    we see no merit in the Burdet Groups cost appeal and would therefore dismiss
    it.

[15]

For
    these reasons, the appeal is dismissed.   The parties submissions as to costs
    demonstrate similar expectations as to quantum.  We therefore order the Burdet
    Group to pay to CCC 396 the costs of this appeal, fixed in the amount of
    $30,000, inclusive of disbursements and all applicable taxes.

E.A. Cronk J.A.

G.J. Epstein J.A.

G.R. Strathy J. (
ad
    hoc
)


