Dispute Over Flower Box Leads to Expensive Litigation

The release of a costs decision by Justice Sheard of the Ontario Superior Court of Justice has finally put an end to a very costly dispute between a condominium corporation and a difficult unit owner.

In the case of Sennek v. Carleton Condominium Corporation No. 116, following several years of ongoing  litigation involving Ms. Sennek, the condominium corporation sought costs, as against Ms. Sennek, of over $127,000.00.

The costly litigation began when the condominium corporation registered a lien in the amount of $763.14 on title to the owner’s unit on October 30, 2015. The lien was to recover the costs incurred by the Corporation to remove a flower box installed by the unit owner, which did not comply with the governing documents of the condominium corporation.

In response, the unit owner brought an application to discharge the lien and commenced a small claims court action for damages against the condominium corporation, its directors, and property manager.

In this final cost decision, Justice Sheard noted that “the litigation spun wildly out of control almost from the outset.” The unit owner appealed, or sought to appeal, from almost every interlocutory and final decision made against her in the actions. These appeals were ultimately not successful. The owner filed extensive written materials throughout the litigation and failed to comply with orders made against her, including an order to undergo a capacity assessment based on concerns with the behavior exhibited by her during the litigation.

As a result, the condominium corporation brought an application to have the owner declared a vexatious litigant, which was ultimately granted by the Court.

The Court found that the condominium corporation was entitled to costs in the amount of $109,925.43 payable by the unit owner, of which $85,016.63 could be added to the owner’s common expenses and recoverable under the lien. In finding that the unit owner acted unreasonably throughout the litigation, the Court was satisfied that she contributed to the costs incurred by the condominium corporation.

In making this determination, the Court recognized that condominium litigation is different from other litigation, in that higher levels of costs have been awarded in condominium litigation. The Court noted that “the Act creates a framework to protect innocent unit holders from the financial burden that they would otherwise shoulder when a condominium corporation takes steps to enforce compliance with the Act or its own bylaws.

This case is a reminder of how quickly the costs of litigation can grow when dealing with a litigious or unreasonable party, even when the initial amount in dispute is minimal. Where a party’s mental health may be a concern, condominium corporations may want to consider the appointment of a litigation guardian who can assist in the proceedings. In some cases, mediation and arbitration will be a more cost-effective way to resolve disputes and should be considered when practical.

While it is unfortunate that this condominium had to go through these trials and tribulations, this decision will hopefully be helpful to other condominiums finding themselves in a situation where they are seeking costs resulting from one owner’s litigious and unreasonable conduct.

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