1420041 Ontario Inc. v. 1 King West Inc.,

• Jurisdiction: Ontario
• Judge: Blair,Cronk,Strathy
• Neutral Citation: 2012 ONCA 249
• Subject Matter: STATUTES,REAL PROPERTY
• Citation: (2012), 291 O.A.C. 23 (CA),2012 ONCA 249,291 OAC 23,(2012), 291 OAC 23 (CA),291 O.A.C. 23
• Date: 26 January 2012
• Court: Court of Appeal (Ontario)

1420041 Ont. v. 1 King West (2012), 291 O.A.C. 23 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. AP.034

1420041 Ontario Inc. (plaintiff/appellant) v. 1 King West Inc. (defendant/respondent)

(C53690; 2012 ONCA 249)

Indexed As: 1420041 Ontario Inc. v. 1 King West Inc.

Ontario Court of Appeal

Cronk and Blair, JJ.A. and Strathy, J.(ad hoc)

April 20, 2012.

Summary:

The plaintiff agreed to purchase eight condominium units. Four of them involved a custom design and finishes unique to the plaintiff's units. The plaintiff sued the defendant seeking specific performance of its agreement respecting the custom design and finishes it claimed it was promised or, alternatively, an abatement of the purchase price or damages. The defendant sought to stay the action. It argued that the action duplicated another proceeding. Alternatively, it argued that the plaintiff lacked the necessary legal capacity to pursue the action on its own given s. 23(1) of the Condominium Act.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 876, dismissed the motion for a stay. The defendant sought leave to appeal.

The Ontario Divisional Court, per Greer, J., in a decision reported at [2010] O.A.C. Uned. 330, granted leave to appeal.

The Ontario Divisional Court, in a decision not reported in this series of reports, allowed the appeal and dismissed the action as it related to the common elements of the condos. The plaintiff appealed.

The Ontario Court of Appeal allowed the appeal, set aside the order below and reinstated the plaintiff's action as it related to the common elements.

Real Property - Topic 8962

Condominiums - Duties and rights of unit holders - Status to sue - The Ontario Court of Appeal reviewed the history and purpose of s. 23(1) of the Condominium Act, 1998 - The court stated that s. 23(1) granted a condominium corporation standing (but not exclusive standing) to commence, maintain or settle the types of action referred to therein - Properly interpreted, it did not preclude an individual condominium unit owner from pursuing a claim relating to common elements where what was at issue was a contractually unique problem or other unit-specific wrong raising a discrete issue relating to common elements immediately pertaining to the owner's unit - The word "may," as employed in s. 23(1), was permissive, not mandatory - The section was ambiguous - The court applied a strict construction approach - The Act should not be interpreted as taking away a right of action unless it was explicit in doing so - See paragraphs 14 to 56.

Real Property - Topic 8962

Condominiums - Duties and rights of unit holders - Status to sue - The plaintiff agreed to purchase eight condominium units - Four of them involved a custom design and finishes unique to the plaintiff's units - The plaintiff sued the defendant seeking specific performance of its agreement respecting the custom design and finishes it claimed it was promised or, alternatively, an abatement of the purchase price or damages - The defendant sought to stay the action - It argued that the plaintiff lacked the necessary legal capacity to pursue the action on its own as s. 23(1) of the Condominium Act required that such an action be brought by the condominium corporation - The Ontario Court of Appeal held that the plaintiff had the legal capacity to sue - Section 23(1) did not preclude the plaintiff from advancing its claim under the agreement of purchase and sale in relation to the common elements.

Real Property - Topic 9010

Condominiums - Common property - Actions respecting - [See both Real Property - Topic 8962 ].

Statutes - Topic 510

Interpretation - General principles - Strict interpretation - [See first Real Property - Topic 8962 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See first Real Property - Topic 8962 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 11].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 11].

Loader v. Rose Park Wellesley Investments Ltd. (1980), 29 O.R.(2d) 381 (H.C.), refd to. [para. 16].

York Condominium Corp. No. 420 v. Deerhaven Properties Ltd. et al. (1983), 40 O.R.(2d) 106 (H.C.), refd to. [para. 18].

Wellington Condominium Corp. No. 61 v. Marilyn Drive Holdings Ltd. (1998), 106 O.A.C. 358; 37 O.R.(3d) 1 (C.A.), refd to. [para. 19].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298, refd to. [para. 30].

Ukrainian (Fort William) Credit Union Ltd. (Liquidation) v. Nesbitt, Burns Ltd. et al. (1997), 104 O.A.C. 273; 36 O.R.(3d) 311 (C.A.), leave to appeal granted (1998), 228 N.R. 97; 111 O.A.C. 198 (S.C.C.), refd to. [para. 30].

Telecommunication Employees Association of Manitoba Inc. et al. v. Manitoba Telecom Services Inc. et al. (2007), 214 Man.R.(2d) 284; 395 W.A.C. 284; 2007 MBCA 85, refd to. [para. 30].

Campbell Estate v. Fang (1994), 155 A.R. 270; 73 W.A.C. 270 (C.A.), refd to. [para. 30].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 32].

Hamilton et al. v. Ball et al. (2006), 226 B.C.A.C. 239; 373 W.A.C. 239; 2006 BCCA 243, dist. [para. 48].

Kelly v. Reardon Construction and Development Ltd. (2004), 234 Nfld. & P.E.I.R. 358; 696 A.P.R. 358 (N.L. Prov. Ct. Sm. Cl. Div.), dist. [para. 48].

Statutes Noticed:

Condominium Act, 1998, S.O. 1998, c. 19, sect. 23(1) [para. 12].

Authors and Works Noticed:

Loeb, Audrey M., Condominium Law and Administration (2nd Ed. 1998) (Looseleaf), vol. 2, para. 22-1(c)(i) [para. 16].

Counsel:

Paul D. Guy and Scott W. McGrath, for the appellant;

Megan Mackey, for the respondent.

This appeal was heard on January 26, 2012, before Cronk and Blair, JJ.A., and Strathy, J.(ad hoc) of the Ontario Court of Appeal. The following decision was delivered by Blair, J.A., on April 20, 2012.