



COURT OF APPEAL FOR ONTARIO

CITATION: 2214416 Ontario Inc. v. Peel Standard Condominium
    Corporation No. 937 (Brisdale Plaza Inc.), 2019 ONCA 610

DATE: 20190718

DOCKET: C66368 & C66416

Feldman, Hourigan and Brown JJ.A.

BETWEEN

2214416 Ontario Inc.

Applicant (Respondent)

and

Peel Standard Condominium
    Corporation No. 937, also known as Brisdale Plaza Inc.
, Maple Ridge
    Community Management and
Royal Paan

Respondents (
Appellants
)

Carol A. Dirks and Rachel Fielding, for the appellant,
    Peel Standard Condominium Corporation No. 937, also known as Brisdale Plaza
    Inc. (C66368)

Ben V. Hanuka, for the appellant, Royal Pann (C66416)

Harpreet Singh Makkar, for the respondent

Heard: July 4, 2019

On appeal from the Order of Justice Price of the Superior
    Court of Justice, dated December 7, 2018, with revised reasons reported at 2018
    ONSC 7296.

REASONS FOR DECISION

[1]

Pursuant to s. 135 of the
Condominium Act
,
1998
, S.O.
    1998, c. 19 (the 
Act
), the application judge granted the relief in
    paras. 4 and 5 of his order dated December 7, 2018 (the Order) on the basis
    that at the time of the February 8, 2018 hearing: (i) the respondent, 2214416
    Ontario Inc. (221), had a pending sale of its two units; and (ii) the
    proposed purchaser of the units intended to operate an Indian and Mughlai
    restaurant, as described in art. 2.01(d)(xii) of the Declaration.

[2]

On this appeal, the appellant, Royal Paan, sought leave to adduce fresh
    evidence, which disclosed that: (i) the sale of 221s two units did not
    proceed; and (ii) later in 2018, 221 leased one unit to Punjab Insurance and
    the other to Wireless Hut under separate leases that now run for 5-year terms.
    As well, the fresh evidence discloses that one of the tenants enjoys a right to
    terminate its lease on short notice but has no present intention of doing so,
    in part because of the significant amount the tenant has spent on leasehold
    improvements to the unit. The respondent does not dispute the accuracy of those
    facts. Given the reliability of that fresh evidence, its cogency to the
    operation of the discretionary relief granted by the application judge in his
    Order, and the unavailability of that evidence at the time of the hearing, we
    granted leave to admit that fresh evidence.

[3]

In light of that fresh evidence, there is no realistic prospect that 221
    will be able to use its two units for an art. 2.01(d)(xii) restaurant within
    the period of Exclusive Business Use stipulated in art. 2.01(f) of the
    Declaration. As matters have transpired, the equitable relief granted to 221 by
    paras. 4 and 5 of the Order provides no practical benefit to it.

[4]

We have no doubt that had the application judge known the facts now
    disclosed by the fresh evidence, the relief in paras. 4 and 5 would not have
    been granted. In those circumstances, we set aside paras. 4 and 5 of the Order:
Courts of Justice Act
, R.S.O. 1990, c. C.34, ss. 134(1)(a) and (c).

[5]

The appellant, Peel Standard Condominium Corporation No. 937 (PSCC
    937), acknowledges that at the hearing it had conceded the relief granted by
    para. 1 of the Order.

[6]

As to paras. 2 and 3 of the Order concerning the production by PSCC 937
    of a record showing the Exclusive Business Use enjoyed by any unit owner, we
    are not persuaded that the application judge erred in making those orders. PSCC
    937 did not disclose to the application judge (or to this court by way of fresh
    evidence) the document upon which it relied to take the position that the owner
    of Unit 6, Royal Paan, had the Exclusive Business Use under s. 2.01(d)(xii).

[7]

However, the fresh evidence discloses that after the argument of the
    motion, PSCC 937 has delivered a list of units with Exclusive Business Uses,
    thereby satisfying paras. 2 and 3 of the order.

[8]

Para. 6 of the Order directed an assessment of 221s damages resulting
    from PSCC 937s breach of s. 135 of the
Act
. Given that we have set
    aside para. 4 of the Order containing a declaration that one aspect of PSCC
    937s conduct breached s. 135, any damages remaining for assessment would be
    limited to the motion judges finding in para. 2 of the Order that PSCC 937s
    conduct in refusing to provide a record of Exclusive Business Uses was unfairly
    prejudicial to and unfairly disregarded 221s interest.

[9]

During oral argument, it became clear that although PSCC 937 understood
    that Royal Paan operated a restaurant within the Exclusive Business Use
    described in 2.01(d)(xii) in its Unit 6, Royal Paans position was that its
    operation did not comply with that Exclusive Business Use, but may comply with
    a similar Exclusive Business Use where food and other materials may be sold,
    described in 2.01(d)(x). Royal Paans competing claim to exclusive use under
    article 2.01(d)(xii) was based on a notice it purported to give to PSCC 937 in
    a letter dated October 10, 2017 in respect of Units 7 and 8.

[10]

In
    our view, the evidence discloses that any damages 221 could claim against PSCC
    937 in regard to its failure to provide the record regarding Unit 6 would, at
    most, be nominal damages. The undisclosed information in the possession or
    ultimate control of PSCC 937 that it believed had the effect that Unit 6 held
    the Exclusive Business Use for art. 2.01(d)(xii) was of no moment with respect
    to 221s claim for damages flowing from the aborted sale of its units. If PSCC
    937 had disclosed the information before the hearing and it confirmed PSCC
    937s position that an art. 2.01(d)(xii) use was not available to 221, the sale
    transaction would be at an end. If it did not confirm PSCC 937s understanding
    about Unit 6, it would not mean that 221 would be granted that exclusive use
    because Royal Paan was taking the position that it had the exclusive use by
    reason of its October 10, 2017 letter to PSCC 937 advising of its intention to
    convert its use of Units 7 and 8 to an art. 2.01(d)(xii) use. In either case,
    the production of the records would not have permitted 221 to close the
    transaction. Therefore, the failure to produce the records does not lead to any
    damages resulting from the failed sale of the units. In these circumstances, no
    basis remains for a damage claim by 221 against PSCC 937. We therefore set
    aside para. 6 of the Order.

[11]

Para.
    7 of the Order reserved the determination of the costs below to the judge
    hearing the assessment. Since we have set aside para. 6 directing the
    assessment, it falls to this court to determine both the costs below and the
    costs of appeal. In light of all the circumstances and the outcome, we conclude
    that this is an appropriate case where there should be no order as to costs and
    each party should absorb its costs incurred below and on appeal.

[12]

By
    way of summary, we allow the appeal in part and set aside paras. 4, 5, 6, 7 and
    8 of the Order. We make no order as to the costs below or of the appeal.

K. Feldman J.A.

C.W. Hourigan J.A.

David Brown J.A.


