



COURT OF APPEAL FOR ONTARIO

CITATION: Tharani Holdings Inc. v.
Metropolitan Toronto Condominium Corporation No. 812, 2022 ONCA 93

DATE: 20220131

DOCKET: C69209

MacPherson, van Rensburg and
Roberts JJ.A.

BETWEEN

Tharani Holdings Inc.

Applicant (Appellant)

and

Metropolitan
Toronto Condominium Corporation No. 812,

Anil
Jhamtani, Nina Evans, Selvan Veerasingam, Sritharan

Sabaratnam, Joe Accardo and Aksharan Sritharan

Respondents (Respondents)

Pradeep Chand, for the appellant

Karen Kisiel, for the respondents

Heard: January 25, 2022 by
video conference

On appeal from the order of Justice Edward
M. Morgan of the Superior Court of Justice, dated February 22, 2021.

REASONS FOR DECISION

[1]

At the conclusion of the hearing of this appeal we advised that the
appeal was dismissed with reasons to follow. These are our reasons.

[2]

The appeal concerns challenges to the administration of
Metropolitan Toronto Condominium Corporation No. 812 (MTCC 812), which is a
condominium corporation consisting of 64 commercial units and appurtenant
common elements, located on Markham Road in Toronto. The affairs of MTCC 812
are governed by a board of directors consisting of five volunteer directors.
The appellant Tharani Holdings Inc. (Tharani Holdings) owns three units in
the building.
Mr. Balasubramaniam Palaniappa is the principal
of Tharani Holdings.

[3]

The appellant has pursued other proceedings respecting the management
and control of the board of MTCC 812, resulting in, among other things, a court
order requiring the holding of an annual general meeting.

[4]

The appellant commenced an application against MTCC 812, five of
its current and former directors and its property manager. The notice of
application, which is 22 pages long, alleges numerous
breaches
of the
Condominium Act, 1998
, S.O. 1998, c. 19 (the Act), General Regulation O. Reg. 48/01,
and the by‑laws and board election procedures of MTCC 812. The appellant
sought, among other things, the removal of the respondent directors, the
appointment of an inspector, the application of the oppression remedy, and
damages.

[5]

The application judge dismissed the application.
He noted that the appellants arguments, stripped to their core, concerned
various alleged technical breaches of the Act or other regulations by the
respondents. They lacked a central, overarching focal point, and were
comprised of what appear to be formalistic errors made by the [MTCC 812] board
that amount to little in substance: at para 3. He characterized the
appellants position as follows: [B]reach of the rules is a breach of the
rules, and a breach demands a remedy regardless of the effect (or non-effect)
of the breach: at para. 18. Considering the appellants allegations on the
whole, the application judge concluded that they failed to demonstrate any
evidence of substantively harmful conduct by the respondents.

[6]

Although a number of issues are raised on
appeal, in essence the appellant makes two arguments: that the application
judge engaged in conduct giving rise to a reasonable apprehension of bias; and
that he failed to conduct the necessary analysis in refusing to grant a remedy.

[7]

There is no merit to the bias allegation.
Referring to a transcript of the hearing, the appellant points to passages
where the application judge characterized the appellants complaints as a
litany of petty, stuff, petty disputes and no big picture, and asked the
appellants counsel to provide an overview, and to indicate whether there was
anything big, or whether it was a litany of small, small bickering with the
Board.

[8]

Contrary to the appellants submission, these
comments did not suggest that the application judge had pre-determined the
issues in the application; rather, they
were a
reasonable effort on the part of the application judge to ascertain the basis
on which the appellant was seeking various remedies, and whether there were
grounds for the relief that was sought. As the application judge demonstrated,
he was open to hearing the appellants substantive complaints that would give
rise to a remedy.

[9]

As for the submissions concerning the
application judges failure to impose certain remedies: declaring the automatic
disqualification of MTCC 812s directors for not complying with disclosure
requirements under s. 29 of the Act and ss. 11.6 and 11.10 of O. Reg. 48/01; a
compliance order under s. 134 of the Act; the appointment of an inspector under
s. 130; or relief under the oppression remedy section, s. 135, there is no
reason to interfere with the application judges decision that no remedy was
warranted for what were essentially technical breaches.

[10]

First, the application judge considered the
evidence and concluded that, while the directors may not have formally
disclosed their identities, and the fact that in some cases their units were owned
by family members or their personal corporations, the appellant knew the
identities of the directors. In the absence of any actual harm to the
appellant, it was within the discretion of the application judge to decline to
disqualify the respondent directors. Indeed, the application judge reasonably
concluded that an order disqualifying the directors and requiring a new
election could put the affairs of MTCC 812 in disarray.

[11]

Nor did the application judge err in failing to
consider or invoke the oppression remedy under s. 135 of the Act, to make a
compliance order or to award damages under s. 134, or to appoint an inspector
under s. 130. He reasonably concluded that, without evidence of any harm or
prejudice to the appellant, there was no basis for an oppression remedy or for
any other remedy.

[12]

On appeal the appellant did not argue that the
application judge had overlooked or ignored evidence of actual harm or
prejudice it had sustained as a consequence of any irregularities in MTCC 812s
administration, or point to any such evidence. Rather, the argument on appeal,
as at first instance, was that any breach of the Act, regulation or condominium
governing documents, required a remedy. The application judge reasonably, and
in our view correctly, observed that the remedial provisions in the Act are
permissive. And, contrary to the appellants submission, the application judge
assessed the various complaints cumulatively, finding that there was no
evidence, overall, of substantively harmful conduct by the Respondents: at

para. 21.

[13]

The application judge was well aware and
critical of the various irregularities the appellant had argued. He stated in
para. 43:

[A]lthough there is no real wrongdoing by the
board, and the current board shall remain in place until the next election is
held pursuant to the requirements of the Act, regulations and corporate
by-laws, the Condo Corps board effectively brought this proceeding on itself.
Its own lackadaisical attitude toward the rules governing its operation has
prompted the Applicants intense scrutiny. The Applicant may be the boards
litigation adversary, but the board members and the Condo Corps manager seem
to be their own worst enemy.

[14]

However, there was no evidence that the
irregularities were ongoing or causing real prejudice. Notably, the application
judge pointed out that the auditing of financial statements was underway, and
that there was no practical value in auditing previous fiscal years without
cogent evidence indicating a reason to do so.

[15]

In exercising his discretion to refuse a remedy
under ss. 130, 134 and 135 of the Act, the application judge was entitled to
conclude that the appellants grievances raised technical breaches of the Act
that did not require a remedy. His reasons clearly set out why he dismissed the
application.

[16]

For these reasons the appeal was dismissed, with costs to the
respondents on a partial indemnity basis fixed at $5,300, inclusive of HST and
disbursements.

J.C.
MacPherson J.A.

K.
van Rensburg J.A.

L.B.
Roberts J.A.


