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PAGE 12 FOCUS November 1, 2010 • Law Times Case highlights need to document dealings with tough tenants I BY DARYL-LYNN CARLSON For Law Times n a rare decision, the On- tario Superior Court of Jus- tice has agreed to compel a condominium owner to sell her suite and leave the building due to allegedly unruly behaviour. Th e case, Metropolitan Toron- to Condominium Corp. No. 747 v. Korolekh, isn't the fi rst time a court has leveraged s. 117 of the Condominium Act, which prohibits residents from en- gaging in dangerous activities, although few arguments under the section are successful. Yet in light of several other important condominium-re- lated decisions by the courts, real estate lawyers, especially those who practise in the fi eld part time, are facing some sig- nifi cant case law developments that could make their practice more challenging. In Korolekh, Natalia Korolekh, a 41-year-old stockbroker, was accused of repeat- edly intimidating her neighbours with her 70-kilo- gram Rottweiler and by playing loud music, poi- soning her neigh- bours' plants, and generally being an unruly resident in a high-end town- house complex in downtown Toronto that was gov- erned by a condominium board of directors. In making the decision in her condo up for sale. Accordingly, Andrea Krywonis the lawyers in- volved in the case, David Strashin for Korolekh and Ryan Treleaven of Heenan Blaikie LLP for the con- dominium corpo- ration, declined to comment for this story, although several lawyers who practise real estate law have been following the case closely. Andrea Krywonis at Gardin- favour of the condominium board, the judge has sched- uled a subsequent court date of Dec. 1 to ensure the ruling has been complied with. But as much as a month after the Aug. 17 court ruling, Korolekh had not removed her dog from the premises nor had she put er Miller Arnold LLP in Toron- to has written about the case on the fi rm's Ontario Condo Law Blog. "In this case, the reason I think the eviction was granted is that [Korolekh] did not rec- ognize or acknowledge the fact that she had breached any rule at the condo," she says. She notes the court surpassed the mandated mediation and ar- bitration requirement as, based on the defendant's alleged at- titude, it deemed the process would not serve any purpose. Th at is ideal to be able to expe- dite the process at a lower cost to the condominium corporation, she adds. "Not that we don't like me- diation or arbitration, but it adds to the cost and if you have someone on the property who is denying that they're doing anything wrong, it can prolong the process," says Krywonis. "It is much quicker and cost-eff ec- tive if the courts deal [directly] with a case like this." She says her fi rm dealt with a similar case as far back as 1991 when a condo owner was compelled by a court to sell his unit due to his inclination to hoard junk. Th e most important thing a condominium corporation can do to ensure its success in chal- lenging its residents is to keep all documentation from any complaint against them, says Krywonis. Douglas Shanks, a partner at Cheadles LLP in Th under Bay, Ont., has also been fol- lowing the case. "Th ere certainly are cases that are similar to this, but this case was unusual in that it did set a precedent," he says. "Th ere have been some other cases wherein the court ruled the section [117] was extraordinary in terms of relief but notwith- standing that, the judge ruled this was a situation where this was appropriate because there was everything from physical violence to threats and verbal abuse." Untitled-3 1 10/22/10 12:11:07 PM Shanks also notes that Ko- rolekh has been ordered to pay costs for the condominium corpo- ration, which he says is notewor- thy for any law fi rm representing condominium corporations in the context of furnishing all doc- umentation of record, no matter how insignifi cant. In another blog posting, Christopher Jaglowitz, also of Gardiner Miller Arnold in Toronto, declares the case of Jia v. Toronto Standard Condo- minium Corp. No. 1479 to be equally noteworthy for real es- tate practitioners in the condo- minium fi eld. In Jia, a condominium su- perintendent allegedly assaulted a visitor, who in turn sued the condominium corporation. As Jaglowitz notes, "It was one of the rare types of cases where you have an employee by the corporation being ac- cused and sued for assaulting a person. In this case, it hap- pened to be a visitor who was [allegedly] assaulted." As a result, he says condo own- ers and their respective boards of directors have to be cognizant of their insurance policies. "Clearly, the insurance always has a part to play and the condominium corporation has to ensure it has adequate coverage." Th erefore, any condomini- um's legal counsel should ensure their client's insurance coverage fi rst and foremost. "Th is case is a good reminder [of] just how broad the insurance coverage needs to be," says Jaglowitz. He says insurance compa- The Law of Subdivision Control in Ontario Third Edition A Practical Guide to Section 50 of the Ontario Planning Act A new third edition of "THE" real estate lawyers' guide to section 50 of the Every real estate lawyer knows that section 50 affects all real estate transactions in Ontario. This is the only resource to help guide you through the intricacies of this complicated section. 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