



COURT OF APPEAL FOR ONTARIO

CITATION: York Region Standard Condominium Corporation No.
    1253 v. Hashemi, 2017 ONCA 557

DATE: 20170630

DOCKET: C62479

Rouleau, Pepall and Roberts JJ.A.

BETWEEN

York Region Standard Condominium Corporation No.
    1253

Applicant (Appellant)

and

Seyed Pouria Hashemi
and
Pauline
    Hashemi
,

Sheva
    Gindil and Darynell Gindil

Respondents (
Respondents in Appeal
)

Timothy Duggan and Spencer Toole, for the appellant

Wendy Greenspoon-Soer and Monica Unger-Peters, for the
    respondents

Heard: March 23, 2017

On appeal from the judgment of Justice Suhail A.Q. Akhtar
    of the Superior Court of Justice, dated June 30, 2016.

REASONS FOR DECISION

Introduction

[1]

The appellant condominium corporation (YRSCC) appeals from an award of
    $18,000 in damages made in its favour against the respondent condominium unit
    owners and also seeks leave to appeal an award of $17,000 in full indemnity
    costs made under s. 134(5) of the
Condominium Act, 1998
, S.O. 1998,
    c.19 (the Act).

Facts

[2]

The respondents leased their condominium to tenants who vandalized the
    common elements of YRSCC.

[3]

YRSCC commenced an application against the respondents and their tenants
    claiming declaratory and injunctive relief, an eviction order, damages
    representing the cost of repairs, and costs. After several court appearances,
    the tenants left the property and did not participate further in the court
    proceedings. Before the application judge, the respondents conceded liability
    and the only contested issues left to be determined were damages and costs. YRSCC
    claimed $33,381.28 in damages and an award of costs of $52,637.56.

Application Judges Decision

[4]

The application judge first addressed the issue of damages. He observed
    that under s. 17 of the Act, a condominium corporation is required to take
    reasonable steps to ensure compliance with the Act and this includes incurring
    reasonable costs to remedy any transgressions by unit owners or their tenants. He
    considered the invoices submitted to be disproportionate to the damage suffered
    and the action taken in response to fix it. Unit owners should be charged for
    repairs, not upgrades. Although YRSCC was entitled to rectify the damage, it
    had a duty to do so proportionately. He provided examples relating to the
    painting of two stairwells, the installation of security cameras, and window
    cleaning. He concluded that these charges were unreasonable and a breach of
    YRSCCs duty under the Act. He therefore awarded $18,000 in damages rather than
    $33,381.28 claimed by YRSCC.

[5]

He then turned to the issue of costs. He was unwilling to order the
    $52,637.56 that YRSCC requested. He stated:

A partial indemnity basis for the costs, using Rule 57.01 of
    the
Rules of Civil Procedure
and
Boucher v Public Accountants
    Council (Ontario)
, 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291,
    should be fixed at $12,000.00. I take into account the previous numerous
    appearances and preparation required. I also note that the bulk of this
    application was rendered moot. However, in fixing costs under s. 134(5) of the
    Act, the full indemnity costs of the corporation in obtaining compliance at
    $17,000.00 as being the appropriate actual costs incurred. This is based [on]
    only partial recovery of the actual damages sought.

[6]

The application judge therefore awarded $17,000 in costs rather than
    $52,637.56 claimed by YRSCC.

Analysis

(a)

Damages

[7]

The appellant YRSCC acknowledges that it has a duty pursuant to the Act
    to act reasonably in connection with repairing damage caused by vandalism but submits
    that the application judge erred in holding that it had breached its duty and
    declining to award the amount it had claimed. YRSCC argues that the respondents
    had not put the issue of breach of statutory duty in issue and there was no
    evidence on which the application judge could reasonably rely in finding a
    breach of duty or in finding that the amount claimed for repairs was
    unreasonable.

[8]

Based on the evidence before him, including the invoices which he
    reviewed, it was open to the application judge to determine that several of the
    expenditures that YRSCC made were disproportionate. Whether YRSCC had acted
    reasonably in incurring the damages it claimed clearly was in issue. The
    application judges role was not to simply rubber stamp the request made by the
    condominium corporation. In support of his determination, he identified
    compelling examples of disproportionate expenditures. We agree with the
    appellant that a finding of breach of statutory duty was not sought by the
    respondents. That said, there was no need to find a breach of duty; the finding
    of disproportionality was available regardless of any such breach. In any event,
    the judgment appealed from is silent on such a breach. An appeal is from an
    order or judgment, not from the reasons for judgment:
Grand River
    Enterprises v. Burnham
(2005), 197 O.A.C. 168 (C.A.), at para. 10.

[9]

However, we find that the application judge erred in finding that the installation
    cost of security cameras was unreasonable. He concluded that two invoices, each
    for $7,458, were duplicates and unreasonable. But, the affidavit evidence revealed
    that the contractor had split the total cost of his services between two
    invoices and did not charge twice for the same service. The expense of $7,458 therefore
    should be added to YRSCCs damages award.

[10]

Apart from this adjustment, we see no reason to interfere with the
    damages award.

(b)

Additional Actual Costs

[11]

Turning to the issue of the costs award, there were two dimensions to
    the request for costs advanced by YRSCC. First, it claimed the costs of the
    application based on r. 57 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194.  Second, it claimed its additional actual costs based on s.
    134(5) of the Act. The latter provides that [i]f a corporation obtains an
    award of damages or costs in an order made against an owner or occupier of a
    unit, the damages or costs, together with any additional actual costs to the
    corporation in obtaining the order, shall be added to the common expenses for
    the unit.

[12]

In
Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline
    Executive Properties Inc.
(2005), 253 D.L.R. (4th) 656 (Ont. C.A), Doherty
    J.A. explained at para. 8 that an award of costs refers to the costs that the
    court orders one litigant to pay to another litigant whereas additional actual
    costs can encompass those legal costs owing as between the client and its own
    lawyer beyond the costs that the court has ordered paid by an opposing party.

[13]

In seeking additional actual costs under s. 134(5) of the Act, YRSCC advised
    the trial judge that the order requested had three components: damages, costs
    and s. 134(5) costs; and that the standard for r. 57 costs was that described
    in
Boucher v. Public Accountants Council (Ontario)
(2004), 71 O.R. (3d) 291 (C.A.)
whereas the
    standard for s. 134(5) costs was a solicitor and his own client assessment. YRSCC
    also directed the trial judge to the case of
Toronto Standard Condominium
    Corp. No. 1633 v. Baghai Development Ltd.
, 2012 ONCA 417, 293 O.A.C. 123
    which addresses the distinction between the two types of costs. The application
    judge considered an order of $12,000 to be an appropriate partial indemnity
    cost award under r. 57 and ultimately ordered an additional $5,000 under s.
    134(5) of the Act for a total full indemnity cost award of $17,000.

[14]

YRSCC argues that the application judge misapprehended and misapplied
    the provisions of s. 134(5) of the Act in his assessment of costs. In
    particular, it submits that he assessed YRSCCs costs as between the parties,
    rather than as between a solicitor and his client. As a result, the application
    judge failed to award any additional actual costs, which YRSCC incurred in
    obtaining the compliance order, as required under s. 134(5) of the Act.

[15]

The application judge considered YRSCCs full indemnity costs but appears
    to have focussed on the costs as between the parties without reference to the additional
    actual costs. This is evident from his reference to partial recovery of the
    actual damages sought and to the fact that the bulk of the application had been
    rendered moot.  Partial recovery would have little or no impact on entitlement
    to actual costs and mootness would not detract from the actual additional costs
    incurred to obtain the compliance order. Had he considered additional actual
    costs, then costs such as administrative and managerial costs that were
    associated with obtaining the order would have been eligible for assessment as
    any additional actual costs. In his analysis, the application judge should
    have distinguished between an award of costs and additional actual costs,
    as stipulated in s. 134(5), and as this court explained in
Skyline
and
Baghai
. Instead, he conflated the two.

[16]

However, YRSCC did not file the necessary underlying evidentiary materials
    supporting the claim for all of its additional actual costs and did not seek an
    adjournment to address this deficiency in the record. As noted at para. 56 of
Skyline
,
    the burden is on the condominium corporation to demonstrate that the costs
    claimed were actually incurred in obtaining the order. YRSCC did not fully meet
    this burden. As this court observed in
Baghai
, at para. 84: the
    provision for additional actual costs does not automatically lead to whatever
    amount is claimed because s. 134(5) does not give counsel licence to spend
    the clients money with impunity.

[17]

Of the $52,637.56 claimed for costs, YRSCC established entitlement to
    approximately $34,000.  In the result, the order on costs is varied and
    increased from $17,000 to $34,000 so as to account for actual additional costs
    established by YRSCC.

(c)

Reasons

[18]

Lastly, the reasons were spartan in nature. However, an application
    judge is not required to address every factual issue. Here, read in the context
    of the record as a whole, the reasons identify why and how the application
    judge arrived at his decision and they also allow for effective appellate
    review.

Disposition

[19]

In summary, the appeal is allowed and the damages award is increased
    from $18,000 to $25,458. Leave to appeal costs is granted. The costs appeal is allowed
    and the costs award is increased from $17,000 to $34,000.

[20]

As YSSRC was the successful party on this appeal, the respondents shall
    pay its costs fixed in the amount of $9,500 inclusive of disbursements and
    applicable taxes.

Paul Rouleau J.A.

S.E. Pepall J.A.

L.B. Roberts J.A.


