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Compliance Order overrides TRESPASS ACT PROHIBITION : access to CANDY FACTORY unit M.T.C.C 1328 2019/12/09 12:03  
again NOT legal advice.

An Ontario Court of Appeal panel has just upheld ( without mediation /arbitration, as exempted by Act ) a section 134 Compliance Order granting ACCESSES ( to a penthouse unit ) by management to inspect it due to alleged noise & vibration complained by a lowerfloor owner.

That lowerfloor owner's complaints targetted an INTERNAL staircase component of the defendants' two-floor penthouse at Toronto's Candy Factory condo conversion.

Management's access requests had been defied by the defendants' countervailing Trespass Act prohibition notice. ( There's a background. . . . . )

The arguably terse Court of Appeal decision expressly sidelines some other interesting issues raised. Such include some degree of potentially muddied motives involving ongoing parallel litigation over chargebacks for water damage to the unit of the complaining lowerfloor owner.

ONCA's wording seems sharply focussed on supporting unit access as a matter of statutory duty & right merely when triggered by another owner's complaint presumably with some veneer of credibility & seriousness. Lack of threat to a common element for example, gets treated as not critical in the wording of ONCA's analysis here. Does this risk opening floodgates even if it would validate lawful & responsive management ?

Toronto's Candy Factory two decades ago had been a highprofile Harry Stinson conversion of a vintage production building on Queen St West near good ole' 999. One internal unit component had been staircases between two-floor units. Is such unit component genuinely inspection-triggering ? 'We don't care if it's a purely unit component' apparently says ONCA

What will a management inspection discover about the integrity of the defendants' internal staircase ? Will this ONCA decision itself be attempted appealed further ? Or have the parties managed to prolong the dispute's bottom line impact long enough ? One more good reason to rely on counsel.

M.T.C.C 1328 v 2145401 Ont. Inc and Paul Starkman 2019 ONCA 944 issued Nov 29/19 ONCA panel upholds Compliance Order to override defendants` Trespass Act notice. Awards $ 4 K additional appeal costs

M.T.C.C 1328 v 2145401 Ont. Inc and Paul Starkman 2019 ONSC 733 issued Feb 20/19
issues Compliance Order overriding Trespass Act attempted prohibition after lower unit owner warns upper unit staircase integrity issue.

M.T.C.C 1328 v 2145401 Ont. Inc and Paul Starkman 2019 ONSC 2057 issued April 1 /19

xcrpted April 1 / 19 : `` . . . . [29] In my reasons for decision I expressed concern that so much time and effort had been devoted to what should have been a relatively straightforward request.

Although I granted the relief sought in the application, I observed, and reiterate, that neither party is blameless here.

MTCC 1328 has been less than diligent and transparent in its consideration and assessment of the concerns raised by the owner of unit 402 (even though I found the decision to inspect the Unit to have been in furtherance of the performance of its duties and obligations and the exercise of its rights and powers under the Act).

This lack of diligence and transparency and the timing of the decision to investigate, raised the suspicions of Starkman on behalf of the respondents.

However, Starkman was unduly aggressive and technical in his response to these concerns and he was quick to infer ulterior motivations on the part of MTCC 1328 that have not been substantiated.


[30] . . . . I award partial indemnity costs of this application to the applicant at the top end of the partial indemnity range that I have estimated, in the amount of $10,000.00 in fees and $827.06 in disbursements `` - unquote April 1/19
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