Court Of Appeal Summaries (January 31-February 4, 2022)

• Published date: 08 February 2022
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Real Estate and Construction, Patent, Trials & Appeals & Compensation, Real Estate
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are summaries of the civil decisions of the Ontario Court of Appeal for the week of January 31-February 4, 2022.

Congratulations to Blaney lawyer Jason Mangano for successfully defending an appeal in a condominium law case involving the ability of a condo board to charge fees to unit owners who rented out their units on a short-term basis. In Cottage Advisors of Canada Inc. v. Prince Edward Vacant Land Condominium Corporation No. 10, the Court upheld the application judge's refusal to strike down the provisions in the condominium's by-law that provided for the charging of such fees.

Congratulations also to Blaney lawyers Varoujan Arman and Philip Yang for successfully defending an appeal from a damages award for breach of an agreement of purchase and sale of land. In Calleja v. Ahmadi, the Court upheld the motion judge's summary judgment dismissing the appeal.

Other topics covered this week included unjust enrichment in the family law/joint family venture context, claims to repayment of debts and stays for lack of jurisdiction in favour of foreign proceedings.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Cottage Advisors of Canada Inc. v. Prince Edward Vacant Land Condominium Corporation No. 10, 2022 ONCA 107

Keywords: Real Property, Condominiums, By-laws, Oppression, Condominium Act, 1998, S.O. 1998, c. 19, s. 84(1) and 135, London Condominium Corp. No. 13 v. Awaraji, 2007 ONCA 154, Walia Properties Ltd. v. York Condominium Corp. No. 478, 2007 CanLII 31573

Tsai v. Dugal, 2022 ONCA 81

Keywords: Family Law, Wills and Estates, Real Property, Unjust Enrichment, Joint Family Venture, Kerr v. Baranow, 2011 SCC 10

AOD Corporation v. Mirama Investment Incorporated, 2022 ONCA 95

Keywords: Intellectual Property, Patents, Contracts, Options to Purchase, Corporations, Indoor Management Rule, Borrowing Powers, Canada Business Corporations Act, R.S.C., 1985, c. C-44, ss. 18(1), 189(3), Kaiman v. Graham, 2009 ONCA 77, The Midas Investment Corporation v. Bank of Montreal, 2016 ONSC 3003

UD Trading Group Holding Pte. Limited v. TransAsia Private Capital Limited,2022 ONCA 100

Keywords: Civil Procedure, Stay of Proceedings, Jurisdiction, Forum Non Conveniens, Forum Selection Clauses

Heidari v. Naghshbandi ,2022 ONCA 102

Keywords: Contracts, Debtor-Creditor, Corporations, Oppression

Devi Financial Inc. v. Everwood Place Ltd. ,2022 ONCA 104

Keywords: Contracts, Debtor-Creditors, Mortgages, Guarantees, Civil Procedure, Summary Judgment, Personal Property Security Act, R.S.O. 1990, c. P. 10, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, Rules of Civil Procedure, Rule 20, Hryniak v. Mauldin, 2014 SCC 7, Arora v. Whirlpool Canada LP, 2013 ONCA 657

Short Civil Decisions

Calleja v. Ahmadi, 2022 ONCA 106

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Summary Judgement, Procedural and Natural Justice, Adequacy of Reasons

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

Keywords: Real Property, Condominiums, Directors, Oppression, Civil Procedure, Procedural and Natural Justice, Reasonable Apprehension of Bias, Condominium Act, 1998, S.O. 1998, c. 19, O. Reg. 48/01

Susin Estate v. TD Waterhouse Discount Brokerage (TD Waterhouse Canada Inc.), 2022 ONCA 101

Keywords: Contracts, Debtor-Creditor, Margin Trading Accounts, Civil Procedure, Summary Judgment, Questrade Inc. v. Gu, 2011 ONSC 4106, Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907

Asghar v. Toronto (City), 2022 ONCA 98

Keywords: Civil Procedure, Striking Pleadings, Abuse of Process, Frivolous, Vexatious, 2.1.01 Rules of Civil Procedure, Rule 2.1.01

CIVIL DECISIONS

Cottage Advisors of Canada Inc. v. Prince Edward Vacant Land Condominium Corporation No. 10, 2022 ONCA 107

[Doherty, Tulloch and Sossin JJ.A.]

Counsel:

M. Mackey, for the appellant

Jason Mangano, for the respondent

Keywords: Real Property, Condominiums, By-laws, Oppression, Condominium Act, 1998, S.O. 1998, c. 19, s. 84(1) and 135, London Condominium Corp. No. 13 v. Awaraji, 2007 ONCA 154, Walia Properties Ltd. v. York Condominium Corp. No. 478, 2007 CanLII 31573

facts:

The respondent, Prince Edward Vacant Land Condominium Corporation No. 10 ("the Condominium"), is a 237-unit cottage resort built near the Sandbanks in Prince Edward County, Ontario. The units are individually owned. The property is a summer resort, complete with pools, sports courts, and a fitness centre. The resort is not open in the winter. The units cannot be used as primary residences.

From the outset, it was understood the owners of individual units could rent out their units on a short-term basis when they were not using them. As of this application, over half of the unit owners rented out their units on a short-term basis. Renters had access to the common amenities on the property.

The appellant, Cottage Advisors of Canada Inc. ("CAC"), has been involved in the Condominium from the beginning. CAC was the developer and declarant of the Condominium. It has owned multiple units in the Condominium from the outset.

The resort opened by 2011. CAC, through a sister company ("SSVRM"), provided management services for the Condominium and onsite rental services for those unit owners who wished to rent their units. SSVRM charged fees for those services. A by-law passed in July 2011 directed that renters would be subject to a "rental amenity fee charged by the Corporation from time to time". SSVRM collected the amenity fee. None of the unit owners, including CAC, ever challenged the fee.

The Condominium has been operating under the authority of a Board of Directors since 2016. The relationship between the Board and SSVRM has deteriorated over the years. The Condominium and SSVRM have litigated over SSVRM's voting rights. The Condominium Board also terminated SSVRM's management agreement. CAC takes the position that the Board is controlled by owners who do not rent and favours the interests of that group over the owners who do rent. CAC is an owner/renter.

The Board decided it would take over the oversight, control and management of the rental activities at the Condominium. In furtherance of that goal, the Board introduced By-Law No. 7 in November 2020. The By-Law passed overwhelmingly by a vote of 155 for and 16 against. CAC did not vote its 25 votes.

By-Law No. 7 addressed various aspects of the rental activities. CAC challenged the vires and reasonableness of several components of the By-Law. The application judge struck down parts of the By-Law and upheld other parts. CAC appealed the application judge's refusal to strike down two specific components of By-Law No. 7.

issues:

(1) Did the application judge err in holding the Condominium had the authority to charge owners who rented their units an administrative fee of about $120 each time the unit was rented?

(2) Was the application judge wrong in upholding the Condominium's power to impose an amenity...