Injunctions (Re: Owners)

Peel Standard Condominium Corporation v. Jakacki, 2020 ONSC 3697 (CanLII)

[2] The Application is brought to remove the Respondent from the unit under the provisions of the Condominium Act S.O. 1998 c. 19 on the basis that he has engaged in disruptive and violent behavior. That Application will have to be adjudicated by the Courts in due course. In the interim, the Applicant seeks an interlocutory injunction to prevent the Respondent from using the condominium’s common areas except to enter and exit the building.

Should An Injunction Be Granted?

[30] The question I have to determine on this motion is whether a temporary injunction preventing the Respondent from using the common areas of the condominium except for ingress and egress should be granted. The test for granting an injunction is well-known and is set out in R.J.R. MacDonald v. Canada (Attorney General) (1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at para 43). The moving party must show:

a) There is a serious question to be tried;

b) The moving party will suffer irreparable harm if the injunction is not granted;

c) The balance of convenience favours the granting of the injunction.

[31] I will deal with each element of the test in turn.

York Condominium Corporation No. 137 v. Hayes, 2012 ONSC 4590 (CanLII)

[1] This is an application by a residential condominium corporation under s. 134 of the Condominium Act 1998, S.O. 1998 c. 19 for various orders relating to the alleged violent, harassing and inappropriate conduct of the respondent, a unit owner in the condominium.

[2] Specifically, the condominium seeks:

(a) a permanent injunction, restraining the respondent from;

(i) entering upon the common elements of the condominium except for the purpose of ingress to and egress from her unit;

(ii) having any oral or physical contact or communication with any resident or employee of the applicant;

(iii) communicating with, harassing or having any contact (whether in person, by telephone, by e-mail, or in writing) with any member of the board of directors, any management or security personnel, or any other employee of the applicant, or any other person doing business with the condominium including but not limited to, any of the individuals who have sworn affidavits in these proceedings;

(iv) coming within 25 feet of any of the individuals who have sworn affidavits in these proceedings;

(v) entering or coming within 25 feet of the condominium’s management office located at 85 Emmet Ave., Toronto, Ontario; and

(vi) contacting, communicating with or harassing any member of the board of directors, any management or security personnel, any employee or contractor of the condominium, or any person doing business with the condominium;

(b) an order requiring the respondent to vacate her unit at YCC No. 137 (Unit 1, Level 6) immediately and permanently, and to list that unit for sale immediately, such sale to close nor more than 90 days from the date of the order of this court, failing which the condominium shall be entitled to list unit for sale and thereafter to sell unit, to recover all of its costs in returning the unit state of fitness for occupation from the proceeds of sale, and to move without notice before the court, if necessary, for a writ of possession that will enable the condominium to have vacant possession of the unit in order to give effect to the sale;

(c) a declaration that the respondent has breached sections 117 and 119(1) of the Condominium Act 1998, Articles III (1), IV(1)(b) and(c)and XII(2) of the declaration of YCC No. 137 and rules 4, 8, 10 and 15 of the Rules of YC No. 137;

(d) an order that the respondent cease and desist from her uncivil, improper and illegal conduct that violates the Act and the declaration and rules of YC No. 137;

(e) an order that the respondent be removed from the board of directors before the expiration of her term of office;

(f) an order that the respondent’s appointment as secretary to the board of directors be revoked;

(g) an order that the respondent return any of the condominium’s documents, minutes of meetings, and keys that are in her possession;

(h) an order that the respondent comply with YCC No. 137’s declaration, bylaws and rules as required by section 119 (1) of the Act;

(i) an order that, pursuant to section 134 of the Act, the respondent pay to the applicant its costs on a substantial indemnity basis and that such costs be deemed to be common expense contributions attributable to the respondent’s unit; and

(j) an order that if the respondent fails to comply with any order issued by the court, the applicant may re-attend on two days notice for further orders to enforce compliance.

[24] The condominium is entitled to apply under s. 134 of the Act for relief to prevent the continuance of uncivil, improper and illegal conduct towards condominium owners. In York Condominium Corporation No. 136 v. Roth 2006 CarswellOnt 5129, Perell J. wrote:

[T]here is uncontradicted evidence that Mr. Roth disrupted an owner’s meeting on June 13, 2006 and physically assaulted the Condominium Corporation’s president. There is also uncontradicted evidence of rude, aggressive, abusive, and dismissive behavior by Mr. Roth in his relations with his neighbors, contractors that provide services to the condominium, and with the staff that manages the Condominium Corporation.

Accepting this evidence, and there is no basis for me not to do so, the Condominium Corporation is justified in seeking an order that Mr. Roth cease and desist from his uncivil, improper and illegal conduct that violates the Condominium Act 1998 or the bylaws and rules of the Condominium Corporation.

The issue then is how should the court exercise its discretion under s. 134 of the Act to require Mr. Roth to conduct himself only in accordance with his rights and obligations in under the Condominium Act 1998 and the declarations, bylaws, and rules of the Condominium Corporation.

[47] As noted above, the condominium seeks a broad, permanent injunction restraining the respondent’s conduct in virtually all aspects of her interaction with the condominium and the members of its community. In my view, the scope of the restraining order sought against the respondent is both overreaching and unworkable.

[48] However, having regard to my conclusions set out above, I am satisfied that the respondent’s behavior, some of which occurred after the respondent had notice of these proceedings, warrants some form of restraining order.

[49] Accordingly, an order shall issue requiring the respondent:

(1) to be of good behavior and keep the peace while on any property associated with the condominium;

(2) to cease and desist from uncivil, improper or illegal conduct that violates the Act or declaration, bylaws or rules of the condominium;

(3) to refrain from assaulting, verbally abusing, swearing at, harassing, threatening or intimidating any member of the board, unit owner or occupier or staff member, contractor or other person doing business with the condominium including, without limitation, any person who has sworn an affidavit or provided evidence of any kind in this application; and

(4) to refrain from approaching, within 15 feet, except at a duly authorized board meeting or duly authorized meeting of unit owners: Maria Santos, Ana Agostinho, Sherry Dasilva, Ruth Abraham, Joao Tavares or Nedda Zaharelos.

Durham Condominium Corporation No 45 v Swan, 2012 ONSC 3441 (CanLII)

[1] The Applicant, Durham Condominium Corporation No. 45 (DCC 45) seeks the following Orders against the Defendant, Leslie Arthur Swan (Swan). Pursuant to the Courts of Justice Act R.S.O. 1990, Chapter C.43 (Justice Act), DCC 45 seeks that:

(a) Swan be found a vexatious litigant, that

(b) DCC 45’s Board of Directors has the authority to enter into contracts for third party management of the condominium, that

(c) The present property management contract with MCD Enterprises (MCD) is binding, and

(d) An Injunction prohibiting Swan from having any contact with DCC 45’s Board of Directors, MCD, and its principal, Catherine Debbert.

[48] Swan is no longer a member of the Board. However, he remains a resident of the condominium. Despite the Court finding that he breached his duties as Director, I decline to grant the permanent and interim injunctions sought by DCC 45 that Swan refrain from having any direct or indirect contact with members of DCC 45’s Board, it’s employees, Tammy Goan, Letitia Wise, Sam Metham, and further that he be prohibited from entering onto the units of the aforementioned parties and the property of MCD and its principal.

[49] This relief as sought by DCC 45 is too sweeping and would paint Swan with a “scarlet letter” while remaining a resident of the condominium. However, it should not be construed that this finding gives Swan license to disrupt the proper management of the condominium and its occupants. Should similar conduct continue, if necessary, such conduct can be appropriately addressed and deterred by this and other Courts.

Peel Standard Condominium Corporation No. 984 v. 8645361 Canada Limited, 2018 ONSC 4339 (CanLII)

[37] In Metropolitan Toronto Condominium Corporation No. 747 v. Koroleh, 2010 ONSC 4448, at paras. 87-88, Code J. ordered the respondent to sell her unit when the “misconduct is serious and persistent, where its impact on a small community has been exceptional and where the Respondent appears to be incorrigible or unmanageable”. Justice Code relied on the remedial powers available to the court under s. 134 of the Condominium Act, 1998, S.O. 1998, c. 19.

[38] In Waterloo North Condominium Corp. No. 186 v. Webb, 2011 ONSC 2365 (CanLII), [2011] O.J. No. 2195 (SCJ), at para. 10, the court made the “drastic” order to require the respondent to vacate and sell his unit, when the respondent had prevented the other occupants in the building from “basic security and the quiet enjoyment of their premises … for years, and it is unlikely that he is going to stop voluntarily”.

[39] Similarly, in Strata Plan LMS 2768 v. Jordison, 2013 BCCA 484, at para. 27, the Court of Appeal upheld the decision of the lower court to order the respondent to sell his condominium, concluding:

In an extreme case, which this is, where the subjects of the order have demonstrated an unwillingness to comply with an injunction, the court must have the ability to go to the terminal remedy of sale in order to fashion an effective remedy for the other strata owners. The appellants have repudiated the cooperative foundation of strata living and their intolerable behaviour has brought about the forced sale. There was ample evidence before the judge that only a sale would resolve the problem. In my opinion, he was correct in interpreting subsection (c) as authorizing such an order.

York Region Condominium Corporation No. 890 v. Market Village Markham Inc., 2020 ONSC 3993 (CanLII)

[335] Courts have jurisdiction to grant declaratory relief under their inherent jurisdiction and in accordance with section 97 of the Court of Justice Act, which provides that the Court “may make binding declarations of right whether or not any consequential relief is or could be claimed.”[180] Despite the wide authority for the Court to grant declaratory relief, the granting of a declaration is discretionary.[181] The Ontario Court of Appeal has cautioned that this discretion should be exercised sparingly and with extreme caution.[182]

[336] A declaratory judgment is “a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs”.[183] Courts can and do grant declarations to enable parties to know their rights and to avoid future disputes. In Yasin v. Ontario, the Ontario Court of Appeal stated that in civil litigation, “a declaration is normally sought to clarify parties’ rights under a contract, an agreement or a statute, or in accordance with a right to have a determination of status.”[184]

[337] The granting of a declaration does not require that an injury or wrong has been committed, or even threatened.[185] Rather, Chief Justice Dickson explained in Solosky v. R. that declaratory relief is in the nature of an advance ruling “neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a ‘real issue’ concerning the relative interests of each has been raised and falls to be determined.”[186]

[338] In Ewert v. Canada, the Supreme Court recently synthesized the four requirements that will inform the court’s exercise of discretion to grant declaratory relief: ::“A court may, in its discretion, grant a declaration where it has jurisdiction to hear the issue, where the dispute before the court is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought.”[187]

[339] I will apply these principles in consideration of whether it is appropriate to exercise my discretion to issue any of the declaratory relief sought by the Plaintiffs.

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[359] The Plaintiffs sought the issuance of permanent injunction to restrain the Market Village Defendants from proceeding with the MV Development Project in contravention of any declarations that I will issue. They submitted that a permanent injunction is a presumptive remedy in cases where substantial interference with property rights have been found. The Market Village Defendants contended that a permanent injunction is unnecessary and could unduly complicate any further development initiatives that the parties may seek to advance consistent with my declarations. They urged me to exercise my discretion to not grant the injunctive relief sought by the Plaintiffs.

[360] The test for a permanent injunction is inherently different from the test for an interlocutory injunction, as explained by the Ontario Court of Appeal in 1711811 Ontario Ltd. (Adline) v. Buckley Insurance Brokers Ltd.[195] Permanent injunctive relief can only be rendered after final adjudication. This means that considerations of irreparable harm and balance of convenience, so essential to the test set out for injunctive relief set out in RJR-MacDonald Inc. v. Canada (Attorney General),[196] are not relevant to the granting of a permanent injunction even though, as the Court of Appeal explained, “some of the evidence that a court would use to evaluate those issues on an interlocutory injunction might also be considered in evaluating whether the court ought to exercise its discretion to grant final injunctive relief.”[197]

[361] The granting of permanent injunctive relief is discretionary, issued when found by a court to be an appropriate remedy after determination of the legal rights between the parties.[198] There are instances where the issuance of a permanent injunction, after final determination of legal entitlements is necessary to prevent appropriation of private property rights, including easements. The Plaintiffs relied heavily on Devaney,[199] where the Court ordered the removal of an obstruction on an easement, and Canadian Pacific Ltd. v. Paul, where the Supreme Court stated that “[g]enerally speaking, an injunction will issue to restrain an interference or anticipated interference with a person’s rightful enjoyment of the use of his land”.[200]