Dennis Tofin - v. -, 2015 SKPC 168

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: November 27, 2015 2015 SKPC 168 File: SC# 336 of 2013 Location: Saskatoon _____________________________________________________________________________ Between: Dennis Tofin - and - Spadina Condominium Corporation _____________________________________________________________________________ FIAT R.D. JACKSON , J _____________________________________________________________________________ [ 1 ] The proposed plaintiff, Dennis Tofin (Tofin), as owner of two condominium units, has submitted a claim for issue against Spadina Condominium Corporation (Spadina), detailed as follows: Unit 402 1. Hallway maintenance and new carpet $1,380.00

2. Kitchen water shut off valve $239.66 3. Security system monitor $200.00 4. Flashing on perimeter of balcony $3,000.00 5. Loss of parking revenue (20 months @ $200.00) $4,000.00 6. Humidifier (no value shown - requesting replacement) Total $8,819.66 plus credit for all interest charges and lien fees paid. Unit 603 1. Hallway maintenance and new carpet $1,380.00 2. Security system monitor $200.00 3. Balcony painting $200.00 4.

Humidifier (no value shown - requesting replacement) Total $1,780.00 plus credit for all interest and charges and lien fees paid. [ 2 ] For the reasons that follow, this Court declines to issue the said claim as it is not within its jurisdiction to do so. Rather, the proper forum for such grievances by a unit holder against the condominium corporation is the Court of Queen’s Bench.

The Court also notes that this is the second attempt by this litigant against this proposed defendant to have a claim issue for essentially, if not identical, allegations which this Court declined to issue as noted in the written Fiat (unreported of November 4, 2013). [ 3 ] The governing legislation regarding condominium ownership in Saskatchewan is the Condominium Property Act (the Act ) [1] .

Paragraph 35(1) and (2) set out the duties of the corporation concerning the operation and upkeep of the condominium property: 35(1) A corporation is responsible for the enforcement of its bylaws and the control, management and administration of the units, and of the common property and common facilities.

(2) Without restricting subsection (1), the duties of a corporation include the following: (

a) to keep the common property, common facilities and service units in a state of good and serviceable repair and to maintain them properly; (

b) to comply with notices or orders by the local authority or any other public authority requiring repairs to the buildings or work to be done with respect to the parcel; (

c) to comply with any reasonable request for the names and addresses of the persons who are members of the board; and (

d) to file any prescribed returns with the Director.

[ 4 ] The dispute resolution process to adjudicate perceived owner grievances can be found in paragraphs 99.1(1), (2), and 99.2 (1), (2): Order to fulfil duties 99.1(1) One or more owner, tenant, mortgagee or other interested person may apply to the court for an order directing a condominium corporation or a board to fulfil its duties set out in sections 35 and 39.

(2) On an application pursuant to subsection (1), the judge may make any order the judge considers appropriate, including: (

a) an order prohibiting the conduct mentioned in the application; (

b) an order directing the corporation or board to fulfil its duty; and (

c) an order requiring the payment of compensation. Oppression remedy 99.2(1) An owner, a corporation, a developer, a tenant, a mortgagee of a unit or other interested person may apply to the court for an order if the applicant alleges that the conduct of an owner, a tenant, a corporation, a developer or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant.

(2) On an application pursuant to subsection (1), if the judge determines that the conduct of an owner, a tenant, a corporation, a developer or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant, the judge may make any order the judge considers appropriate, including: (

a) an order prohibiting the conduct alleged in the application; and (

b) an order requiring the payment of compensation. [Emphasis added] [ 5 ] Section 2(1)(

l) of the Act states: (l) “ court ” means Her Majesty’s Court of Queen’s Bench for Saskatchewan. [2]

(2) Accordingly, as set out, the proposed action for the relief sought herein must be commenced and tried in the Court of Queen’s Bench, not the Provincial Court.

__________________ R.D. Jackson, J [1] S.S.

Chapter C-26 .1 (as amended) [2] See Park Place Condominium Corp. v Komarnicki [2010] SJ No 399 (D.C. Scott, PCJ)