In a recent case, Carleton Condominium Corporation 116 v. Sennek, the Court of Appeal for Ontario agreed with a lower court’s decision that declared a condo unit owner to be a vexatious litigant.
The lower court had concluded that the owner had six of the seven characteristics of a vexatious litigant:
- bringing one or more actions to determine an issue that has already been determined by a court of law;
- bringing an action that could not possibly succeed or would lead to no possible good;
- bringing an action for an improper purpose, including harassment and oppression of other parties, rather than for the purpose of an assertion of legitimate rights;
- rolling forward grounds and issues into subsequent actions, and often suing lawyers who acted for or against the litigant in previous actions;
- looking at the whole history of the matter and not just the original cause of action, the proceedings are vexatious;
- persistently pursuing unsuccessful appeals;
- failing to pay the costs of unsuccessful proceedings.
The court ordered that the owner was prohibited from initiating or continuing any action, application, motion or proceeding against the corporation, its employees, board members, property manager and solicitors without obtaining leave from a judge.
The dispute between the owner and the corporation started in Small Claims Court over three relatively minor issues: the pruning or non-pruning of a tree whose branches hung over the owner’s unit; the size of the owner’s parking space; and a flowerbox installed by the owner that was removed by the corporation as it did not comply with the corporation’s rules, which ultimately led to the corporation registering a lien in the amount of $763 against the owner’s unit to recover the costs of removing the flowerbox.
As stated by the lower court, “the Litigation spun wildly out of control almost from the outset”. Ultimately the corporation expended in excess of $100,000 in legal fees and disbursements to deal with the litigation involving the owner.
The Courts have held that the power to declare someone a vexatious litigant must be “exercised sparingly and with the greatest care.” Seeking such an order is usually a last resort for a condominium corporation after other efforts to curtail the ongoing litigation have failed. When a condo corporation finds itself dealing with a difficult owner that persists in engaging in numerous unmeritorious and repetitive legal proceedings, not only is this very costly from a financial perspective, but these actions are extremely time-consuming for both the board of directors and the property manager who could make better use of their time and energy attending to the corporation’s business.
In this case the owner was ordered to pay the corporation costs in the amount of $109,925, of which $85,016 was to be added to the owner’s common expenses and recoverable under the lien against her unit. The owner was also required to pay an additional $2000 in costs for the unsuccessful appeal. By requiring the unit owner to pay costs to the condominium corporation this provides protection to the other unit owners in the condominium from “the financial burden they would otherwise shoulder when a condominium corporation takes steps to enforce compliance” with the condominium documents.
