Carleton Condominium Corporation No. 396 v. Burdet
The Court upheld the motion judge’s dismissal because the r.59.06(2) motion was frivolous, vexatious and an abuse of process with no new facts; the set-off argument had been previously litigated; s.84(3) of the Condominium Act bars exemption from contribution; any procedural fairness concern was unfounded because...
Source-derived case information.
- Citation
- 2018 ONCA 342
- Parties
- Plaintiff/respondent in Appeal: Carleton Condominium Corporation No. 396; Defendant/appellant: Claude Alain Burdet in Trust; Defendant/appellant: Claude-Alain Burdet; Defendant/appellant: 1457563 Ontario Corporation; Defendant/appellant: 1457563 Ontario Corporation in Trust; Defendant/appellant: Janet Sue Burdet; Defendant/appellant: Nelson Street Law Offices; Defendant: L’Academie Christiane Sauve Inc.; Defendant: International Beauty Depot
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 5 April 2018
- Procedural Posture
- Civil Condominium Arrears / Appeal From Superior Court Order Dismissing R.59.06(2) Motion to Set Aside Judgment (post Trial)
- Outcome
- Appeal dismissed; order of the motion judge upheld
- Legal Topics
- Condominium Arrears, Set Aside Judgment, Abuse of Process, Rule 59.06(2), Rule 2.1.02(1), Section 84(3) Condominium Act, Procedural Fairness, Costs of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Carleton Condominium Corporation No. 396
Plaintiff/respondent in Appeal
Claude Alain Burdet in Trust
Defendant/appellant
Claude-Alain Burdet
Defendant/appellant
1457563 Ontario Corporation
Defendant/appellant
1457563 Ontario Corporation in Trust
Defendant/appellant
Janet Sue Burdet
Defendant/appellant
Nelson Street Law Offices
Defendant/appellant
L’Academie Christiane Sauve Inc.
Defendant
International Beauty Depot
Defendant
Procedural Posture
Civil Condominium Arrears / Appeal From Superior Court Order Dismissing R.59.06(2) Motion to Set Aside Judgment (post Trial)
Legal Issues
- 1 Whether the r.59.06(2) motion to set aside the judgment should have been granted
- 2 Whether the motion was frivolous, vexatious or an abuse of process
- 3 Whether the motion judge committed a procedural fairness breach by not inviting submissions
Ratio Decidendi
The Court upheld the motion judge’s dismissal because the r.59.06(2) motion was frivolous, vexatious and an abuse of process with no new facts; the set-off argument had been previously litigated; s.84(3) of the Condominium Act bars exemption from contribution; any procedural fairness concern was unfounded because the judge implicitly ordered no written submissions; accordingly there was no reversible error and the appeal was dismissed with costs.
Court Disposition
Appeal dismissed; order of the motion judge upheld
Orders
- Motion dismissed by motion judge pursuant to r.2.1.02(1) with costs fixed at $500 payable to the respondent
- Appeal dismissed with costs of the appeal payable by the appellants to the respondent in the all-inclusive sum of $16,000
Full Case Text
Judgment text and source record
1 paragraphs
Carleton Condominium Corporation No. 396 v. Burdet Collection Decisions of the Court of Appeal Date 2018-04-05 Neutral citation 2018 ONCA 342 Docket numbers C64330 Judges Hourigan, C. William; Pardu, Gladys I.; Huscroft, Grant Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Carleton Condominium Corporation No. 396 v. Burdet, 2018 ONCA 342 DATE: 20180409 DOCKET: C64330 Hourigan, Pardu and Huscroft JJ.A. BETWEEN Carleton Condominium Corporation No. 396 Plaintiff/Respondent in Appeal and Claude Alain Burdet in Trust, Claude-Alain Burdet, 1457563 Ontario Corporation, 1457563 Ontario Corporation in Trust, Janet Sue Burdet and Nelson Street Law Offices Defendants/Appellants and L’Academie Christiane Sauve Inc. International Beauty Depot Defendants Claude-Alain Burdet, for the appellants Gary Boyd, for the respondent Heard: April 5, 2018 On appeal from the order of Justice S. Gomery of the Superior Court of Justice, dated August 18, 2017. APPEAL BOOK ENDORSEMENT [1] The appellants were found liable following a trial for condominium arrears owing to the respondent. Their appeal of that judgment to this court was unsuccessful, as was their motion for leave to appeal with the Supreme Court of Canada. [2] The appellants brought a motion in the Superior Court pursuant to r. 59.06(2) to set aside the judgment and for an order for judgment in their favour. The motion judge dismissed that motion pursuant to r. 2.1.02(1), with costs fixed at $500 payable to the respondent. [3] We see no basis to interfere with the order of the motion judge. [4] We do not accept the submission that this court should interfere on the basis of a denial of procedural fairness. We agree that the motion judge should have either invited submissions or ordered explicitly that written submissions were not required. However, as we read her reasons she implicitly ordered that written submissions were not required. That decision was free from error. [5] It is clear on the face of the r. 59.06(2) motion record that it is frivolous, vexatious and an abuse of process. The relief sought went well beyond what would have been permissible on such a motion. There were no new facts, as the very set-off issue argument made by the appellant now was made below before the trial judge. In any event, s. 84(3) of the Condominium Act provides that an owner is not exempt from the obligation to contribute to common expenses even if the owner is making a claim against the corporation. We also note that the appellants were well aware of the request by the respondent to have the case dismissed pursuant to r. 2.1. [6] The appeal is dismissed with costs of the appeal payable by the appellants to the respondent in the all-inclusive sum of $16,000.