master schulz

3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff Condominium Corporation commenced several Actions against the Defendant owners of condominium units, seeking to compel the Defendants to remove the laundry machines from their condominium units, and to have the Defendants pay fines levied by the Condominium Corporation for failure to remove the machines. The Plaintiff applied for Summary Judgment in each Action. The Defendants in two Actions Cross-Applied to strike the Plaintiff’s Amended Statement of Claim pursuant to Rule 3.68 on the basis that it did not disclose a reasonable claim, and alternatively, for Summary Dismissal of the Claims against them on the basis that the Actions were without merit.

Master Schulz considered the test under Rule 3.68, as elucidated by prior leading authorities which provided that a Motion to Strike for failure to disclose a reasonable cause of action will proceed on the basis that the facts pleaded are true unless they are manifestly incapable of being proven, and will be successful if the claim has no reasonable prospect of success. Master Schulz held that the allegation raised in the Amended Statements of Claim did have a reasonable prospect of success, and therefore the Applications to Strike were dismissed.

With respect to Summary Judgment, Master Schulz noted the principles in Hryniak v Mauldin, 2014 SCC 7 (CanLII), and the cases which interpreted it, and considered whether it was fair and just, on the evidence before the Court, that the Summary Judgment Applications be granted. Master Schulz observed that there was no evidence before the Court that the positions or arguments of the Defendants in this Action were ignored by the Condominium Board. The Condominium Corporation, having acted within its authority and having practiced due diligence in making its decisions, was entitled to require the Defendants to remove the laundry machines from their units, and to impose fines for failure to do so. The Summary Judgment Application was granted.

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