Inderpreet Suri Associate Shibley Righton LLP
Audrey Loeb Partner Shibley Righton LLP
Case Law Update
Decisions From the Courts • Condo Corporations Should be Careful when Persuing Unnecessary Applications Against Unit Owners • The Importance of Adhering to CAT Participation Deadines
The Applicant, Toronto Standard Condominium Corporation No. 2130 (the “Corporation”), commenced an application against the Respondents, Geraldine Berholz and her son, David Berholz, for an order prohibiting David from entering the Corporation’s common elements or from residing in the Corporation. The Corporation previously obtained an interim ex parte order and wanted a permanent order.
broke the door down to try to save his friend’s life. The court accepted that this incident was the result of David’s mental illness. After discovering the damage, Geraldine and Harry accepted responsibility for the situation and paid for the damages.
The following day, Geraldine and Harry went to the Corporation’s management office to apologize for the incident and to convey how sorry David was about what had happened. They also informed the property manager that they had banned David from the building and that David intended to comply with the ban.
Geraldine lived in a unit in the Corporation with her husband, Harry Berholz. David has a bi-polar disorder. He did not live with his parents in the unit but visited often. Geraldine and Harry helped David in relation to his mental illness for many years.
Geraldine and Harry did not hear from the Board after the incident. On May 22, 2019, Geraldine wrote to the Board again to apologize for the incident and confirm that David had been banned from the building. The Corporation did not respond to the May 22, 2019 letter.
In May of 2019, on Mother’s Day, David damaged a neighbouring unit’s door based on a mistaken belief he had. David believed that his friend was in the unit and was trying to commit suicide. David
Geraldine and Harry assumed that the matter had been resolved to everyone’s satisfaction. The Corporation did not contact Geraldine and Harry after the incident to advise them that the matter was
not resolved. Instead, the Corporation brought an application to obtain a court order containing terms to which Geraldine and Harry had already consented. Geraldine and Harry had no idea that the Corporation was incurring legal costs that the Corporation intended to recover from them. As soon as the they found out about the court proceedings, they consented to the relief sought, except for costs. In deciding costs, Justice Nakatsuru held that the court has a broad discretion when determining the issue of costs. Justice Nakatsuru held that “the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant”. In this case, counsel for the Corporation was claiming $27,198.30 for full indemnity costs. Justice Nakatsuru accepted the Berholzes submissions on costs and characterCONDOVOICE WINTER 2019
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ILLUSTRATION BY JASON SCHNEIDER
Toronto Standard Condominium Corporation No. 2130 v. Geraldine Berholz and David Berholz, 2019 ONSC 5121