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Appeal-Judicial Review - Fairness - Fresh Remedies. Philosophe v. TSCC No. 2804
In Philosophe v. TSCC No. 2804 (Div Court, 2023) the Divisional Court considers an appeal [under s.1.46(2) of the Condominium Act] of "an order that held Mr. Philosophe and Mr. Micoli jointly and severally liable to pay $18,239.60 in compensation to the Corporation".
In these quotes the court considers that the remedy granted was not pled under quite late in the proceeding:[2] There are a number of problems with the Tribunal’s order. The Corporation did not request this relief in its application to the Tribunal or in its opening submissions at the hearing. The Tribunal’s procedural order that listed the issues to be determined at the hearing made no reference to Mr. Philosophe’s potential liability. In short, Mr. Philosophe had no idea that he faced this possible financial liability until he read the last two paragraphs of the Corporation’s closing submissions. Mr. Philosophe submits that the Tribunal committed an error of law by making him jointly and severally liable to pay compensation to the Corporation. ....
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[9] The hearing proceeded on the basis of the Tribunal’s order and the Corporation’s opening statement.
[10] At the conclusion of the hearing, the Corporation delivered a 50-paragraph written closing argument. In paragraph 49, for the first time, the Corporation requested that, “in the alternative, [Mr. Philosophe] ought to be responsible for Corporation’s costs of these proceedings.”
[11] Mr. Philosophe filed reply submissions and objected to this late-breaking request from the Corporation.
[12] On February 13, 2023, the Tribunal released its decision and order. It ordered Mr. Philosophe to stop creating noise and nuisances and to ensure that all residents or guests in his unit do the same. The Tribunal also ordered Mr. Micoli to comply with his obligations as an owner and to ensure that Mr. Philosophe and his guests behaved in accordance with the rules. The Tribunal then made two compensatory orders in favour of the Corporation:4. Mr. Micoli shall pay to the Applicant within 30 days of the date of this order costs in the amount of $8,551.50, under s. 1.44 (1) 4 of the Act and in accordance with the Tribunal's rules and practice direction on costs; and
5. Mr. Micoli and Mr. Philosophe are jointly and severally required pay the Applicant the following amounts within 30 days of the date of this order:
a. Compensation in the amount of $18,239.60 under s. 1.44(1)3 of the Act; and
b. Costs in the amount of $200 under s. 1.44 (1) 4 of the Act. ....
[15] In my view, the appeal must be allowed. It is a matter of basic fairness for a party to know the potential jeopardy they face in an administrative hearing.[4] This includes the possible financial liability or other possible adverse consequences. Here, the Tribunal did not provide notice to Mr. Philosophe that it might find him jointly and severally liable to compensate the Corporation. Indeed, the Stage 2 Summary and Order explicitly told him that the Tribunal would not be considering that question. Despite this assurance, the Tribunal then made Mr. Philosophe jointly and severally liable to pay over $18,000 in compensation to the Corporation. This was a significant breach of the duty of procedural fairness.
[16] In conclusion, the Tribunal erred in law by ordering Mr. Philosophe to pay compensation to the Corporation when the Tribunal’s Stage 2 Summary and Order indicated that this issue would not be considered or determined in the Stage 3 hearing.
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