Metropolitan Toronto Condominium Corp. No. 1272 et al. v. Beach Development (Phase II) Corp. et al., 2011 ONCA 667

• Judge: MacPherson, LaForme and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 21, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 667;(2011), 285 O.A.C. 372 (CA)

Toronto Condo. v. Beach Dev. (2011), 285 O.A.C. 372 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. NO.002

Metropolitan Toronto Condominium Corporation No. 1272, Metropolitan Toronto Condominium Corporation No. 1342 and Metropolitan Toronto Condominium Corporation No. 1500 (applicants/appellants) v. Beach Development (Phase II) Corporation, Beach Development (Phase III) Corporation, Beach Development (Phase IV) Corporation, and EMM Financial Corporation (respondents/respondents in appeal)

(C53082; 2011 ONCA 667)

Indexed As: Metropolitan Toronto Condominium Corp. No. 1272 et al. v. Beach Development (Phase II) Corp. et al.

Ontario Court of Appeal

MacPherson, LaForme and Epstein, JJ.A.

October 21, 2011.

Summary:

The appellants were three condominium corporations. The ground floor of each building that housed the condominium units was freehold space occupied by commercial and retail establishments. There was no agreement requiring the occupants of the ground floor to share the costs of the facilities and services they shared with the appellants. The three Beach Development respondents were the declarants of the three condominium developments. The respondent EMM Financial Corp. was the initial developer and the owner of the freehold space. The appellants applied under s. 135 of the Condominium Act, seeking (1) a declaration that the respondents acted oppressively in not providing for a cost-sharing agreement, and (2) an order that EMM pay them its share of the operating costs of all shared facilities, from the date of registration of the appellants forward.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 6090, dismissed the application. The appellants appealed.

The Ontario Court of Appeal dismissed the appeal.

Real Property - Topic 8868

Condominiums - Corporation - General - Oppression of or unfair prejudice or significantly unfair decision to owners - The appellants were three condominium corporations - The ground floor of each building that housed the condominium units was freehold space occupied by commercial and retail establishments - There was no agreement requiring the occupants of the ground floor to share the costs of the facilities and services they shared with the appellants - The three Beach Development respondents were the declarants of the three condominium developments - The respondent EMM Financial Corp. was the initial developer and the owner of the freehold space - The appellants applied under s. 135 of the Condominium Act, seeking (1) a declaration that the respondents acted oppressively in not providing for a cost-sharing agreement, and (2) an order that EMM pay them its share of the operating costs of all shared facilities, from the date of registration of the appellants forward - The Ontario Court of Appeal affirmed the dismissal of the application - The court referred to the test for oppression established in BCE Inc. v. 1976 Debentureholders (SCC) - The application judge correctly held that the appellants had not established that it was reasonable in these circumstances to expect that there would be a cost-sharing agreement - The court also concurred with the application judge's finding that there was no oppressive conduct - The decision that cost-sharing agreements would not be included in the mixed-use development was a considered business decision of the respondents and was fully disclosed in circumstances where the unit purchasers of the appellants were represented by counsel - The court stated that "the appellants voluntarily purchased their condominium units in the full knowledge and disclosure of the rights and obligations associated with their transaction".

Cases Noticed:

BCE Inc. v. 1976 Debentureholders - see Aegon Capital Management Inc. et al. v. BCE Inc. et al.

Aegon Capital Management Inc. et al. v. BCE Inc. et al., [2008] 3 S.C.R. 560; 383 N.R. 119; 2008 SCC 69, refd to. [para. 6].

Statutes Noticed:

Condominium Act, S.O. 1998, c. 19, sect. 135 [para. 5].

Counsel:

Michael Spears, for the appellants;

Richard Macklin, for the respondents.

This appeal was heard on October 21, 2011, before MacPherson, LaForme and Epstein, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following oral endorsement on the same date.