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CITATION: MacKay v. MTCC No.

985, 2015 ONSC 958


COURT FILE NO.: CV-14-509996
DATE: 20150212

RE:

Sharon MacKay and Thomas Cheney, Applicants (Responding Parties)


AND:
Metropolitan Toronto Condominium Corporation No. 985, Respondent (Moving
Party)

BEFORE:

Mr. Justice Graeme Mew

COUNSEL: Natalie Schernitzki, for the Applicants


Jonathan H. Fine, for the Respondent
HEARD:

3 November 2014 and 6 February 2015 at Toronto


ENDORSEMENT

[1]
The respondent seeks to strike out parts of an affidavit of Thomas Cheney sworn on 14
August 2014 in connection with two concurrent motions that are pending in two concurrent
applications involving the same parties.
[2]
The parties are engaged in a dispute over responsibility for the incursion of cigar smoke
into the applicants unit in the respondents condominium building and various related issues that
have arisen in connection with the applicants unit (see e.g. 2014 ONSC 2863 (CanLII)).
[3]
The condominium corporation's application (CV-14-507161) involves a request to enter
Ms. MacKay and Mr. Cheney's unit to complete certain repairs, and to remove allegedly illegally
installed humidifiers.
[4]

Ms. MacKay and Mr. Cheney have brought an application (CV-14-509996) for:
a. an order that they have not breached the condominium corporation's declaration
with respect to the humidifiers;
b. an order requiring that the condominium corporation not mention various matters
in any status certificate;

2015 ONSC 958 (CanLII)

SUPERIOR COURT OF JUSTICE - ONTARIO

- Page 2 -

d. a mandatory order that the condominium corporation deliver an engineer's report


stating that all work has been done and that smoke will not migrate into their unit.
[5]
I have been assigned to case manage the proceedings relating to the dispute over Ms.
MacKay and Mr. Cheneys condominium unit, including the two applications in which Mr.
Cheneys affidavit has been tendered as evidence.
[6]
During the course of argument counsel for Ms. MacKay and Mr. Cheney advised the
court that certain deletions of text in various paragraphs of the Cheney affidavit had been agreed.
This endorsement addresses the balance of the objections raised by the condominium
corporation.
[7]
Each objection, a summary of the position taken by the parties, and my disposition, is set
out in tabular form in the following paragraphs.
[8]

Paragraph 3:
"persistent and large scale" and "very strong"
MTCC: Opinion evidence, legal MacKay/Cheney: It is a lay person's
argument
and
scandalous. perspective. At worst embellishment
"Persistent" means "all the time'.
which court can ignore if it wants to.
Expressions of opinion by a lay
witness
are
not
necessarily
inadmissible.
The court should
consider the "experiential capacity"
to form the relevant opinion:
Lockridge v Ontario (Director,
Ministry of the Environment), 2012
ONSC 2316 at para 106
Disposition: Disposition: Read in the context of the affidavit as a whole, the
court is able to assess the extent to which, if at all, weight should be given to
these words. Words not struck out.

[9]

Paragraph 4:
[second and third hand smoke] which is known to be carcinogenic
MTCC: Opinion; hearsay
MacKay/Cheney:
Lay
opinion.
Reflects deponents belief and source
of his concern.
Disposition: Comment reflects deponents belief (which may or may not be

2015 ONSC 958 (CanLII)

c. an order that the condominium corporation has breached its duty to maintain and
repair Ms. MacKay and Mr. Cheney's unit since a previous hearing before me in
April 2014; and,

- Page 3 well-founded). Words not struck out.

Paragraph 5:
After a great deal of effort on our part ... [condominium corporation has
done some work]
MTCC: Opinion evidence.
MacKay/Cheney:
Statement
of
deponents belief; commentary.
Disposition: This is the deponents perspective. It is not opinion evidence.
Words not struck out.

[11]

Paragraph 7:
The emotional stress and inconvenience of not being able to live in our
home, having to reside in a hotel and putting up with a Board of Directors
whose attitude towards us is hostile, was such that after 10 months, with no
end in sight [was such that we bought another residence]
MTCC:
Opinion
evidence, MacKay/Cheney: It is a statement
scandalous and legal argument.
of belief. Alternatively, if regarded as
an opinion, it is conclusion is a
conclusion that people with ordinary
experience are able to reach.
Disposition: This is the deponents perspective. It is not opinion evidence.
Words not struck out.

[12]

Paragraph 8:
... we were told then, and still believe, since the nature of the renovations
was such that they were entirely within the Unit and did not affect the
common elements, approval of MTCC's Board of Directors was not required
under the terms of the condominium documents
MTCC: Hearsay.
Source of MacKay/Cheney:
Source
is
information and belief not specified disclosed the designers and
as required by Rule 39.01(4)
contractors who completed the
renovations.
Disposition: Goes to the deponents state of mind. The statement is not
admissible as proof of the correctness or otherwise of the deponents belief.
Words not struck out.

2015 ONSC 958 (CanLII)

[10]

- Page 4 Paragraph 9:
MTCC seemed to adopt an evasive and hostile attitude toward us and "the
MTCC representatives peeked around the whole Unit in a way that seemed a
little odd to me, even at the time"
MTCC:
Opinion
evidence; MacKay/Cheney: The attitude and
speculation; scandalous.
behaviour of MTCC is an issue.
Statement is that of deponents belief
and is relevant.
Disposition: The deponent is attesting to his perspective. Words not struck
out.
[14]

Paragraph 12:
" ...which do not touch or affect the common elements. The humidifiers are
as benign as any other consumer appliance available for purchase at the local
appliance store, which any reasonable person could immediately ascertain at
a glance."
MTCC: Legal argument; opinion MacKay/Cheney: This repeats what
evidence.
is said in a letter which is attached as
an exhibit. It is an opinion which a
person with ordinary experience
could make (Lockridge, para. 106).
Disposition: The deponent states that the humidifiers do not touch or affect
the common elements. That is his belief. He may or may not be correct.
The words which do not touch or affect the common elements should not
be struck. The next sentence is argument and is not properly the subject of
evidence from this witness. It should be struck.
And
MTCC used that opportunity to go on a fishing expedition within the
Unit to search for supposed by-law and rules infractions which was not the
purpose for which the consent to access was given. Furthermore, MTCC was
using the ordinary appliance humidifiers to attempt to create a petty diversion
while it did nothing to repair the obvious problems with the common
elements and to prevent an obvious health hazard.
MTCC: Legal argument; opinion MacKay/Cheney: This repeats what
evidence; scandalous.
is said in a letter which is attached as
an exhibit. It is an opinion which a
person with ordinary experience
could make (Lockridge, para. 106).
Disposition: This is essentially argument. It is not properly the subject of

2015 ONSC 958 (CanLII)

[13]

- Page 5 evidence and is not helpful to the court. Words should be struck out.

Paragraph 15:
"After learning of the Second Application, Ms. Schernitzki retained Izaak de
Rijcke, a licensed Ontario Land Surveyor also licensed by the Law Society of
Upper Canada to practice law in the Province of Ontario and certified by the
Law Society of Upper Canada as a Specialist in Real Estate Law, to opine on
whether Sharon and I had breached Article 10(f) of MTCC 's Declaration by
installing, without the prior written consent of MTCC's Board of Directors,
the humidifier in the master bathroom and the humidifier in the laundry
room. Attached hereto and marked as Exhibit "B" is a true copy of Mr. de
Rijcke's report, including a copy of his Curriculum Vitae and
Acknowledgement of Expert's Duty Form, wherein he concludes that the
humidifiers are entirely within the boundaries of the Unit and that by
installing them without permission we have not breached Article 10(f) of
MTCC's Declaration"
MTCC: The report of Mr. de Rijcke MacKay/Cheney: Mr. de Rijckes
is essentially a legal opinion, albeit report satisfies the Mohan criteria for
with a small surveying component, expert evidence.
He opines on
which is being tendered on the very subjects that are outside the
issue the court has to decide.
knowledge of the typical trier of fact.
In Holding Tusculum B.V. c. S.A.
Louis Dreyfus & Cie, 2006 QCCS
2827 (CanLII), at para. 27, the
Quebec Superior Court held that It
is now generally accepted that both
ordinary witnesses as well as expert
witnesses may express opinions on
the ultimate issue without thereby
becoming disqualified. The fact that
the expert report is attached to Mr.
Cheneys affidavit does not make it
inadmissible.
Disposition: An expert report being tendered on an application should be put
in by the expert swearing an affidavit which sets out his/her opinion in full,
or a short covering affidavit which attests to the truth of an attached,
unsworn, report. In either case a completed Form 53.03(1) Acknowledgment
of Experts Duty should also be attached. Those parts of the report
addressing surveying issues are of assistance to the court, but Mr. de Rijckes
opinion on whether Ms. MacKay and Mr. Cheney have breached MTCCs
declaration would appear to usurp the judicial function. As a practical matter
it is difficult to separate the surveying and ultimate issue elements of the

2015 ONSC 958 (CanLII)

[15]

- Page 6 -

[16]

Paragraph 16:
"I am advised by other residents, including a former President of MTCC, and
do verily believe that MTCC issued and/or threatened to issue Status
Certificates with negative comments to prospective purchasers after
comments to prospective purchasers after taking photographs of units without
resident consent, with the effect of making it very difficult for affected unit
owners to sell their units at fair value. Although I do not have personal
knowledge of such instances, I know that there is a climate within the
building and an unspoken awareness that an owner who makes issues for
MTCC does so at his economic risk".
MTCC: Total hearsay.
Although MacKay/Cheney: Evidence is more
identity of former President has of a feeling or a statement of a
now been provided, he is deceased. laypersons opinion than a statement
Evidence is prejudicial.
To the of fact. Such speculation is likely to
extent
that
the
evidence
is be harmless and its relevance, if
speculation, it should still not be any, can best be considered by the
admissible because its prejudicial judge
hearing
the
application:
effect (especially as a source of the Lockridge, at para 122.
information is deceased) outweighs
its probative value.
Disposition: As stated by Harvison Young J. in Lockridge, at para 122,
[t]his is the sort of objection that can be best assessed by the [application
judge], in light of the determinations made on relevance to particular issues at
that point. Words not struck out.

2015 ONSC 958 (CanLII)

report. It should not, accordingly be excluded (if presented in proper


evidentiary form), although such a determination is without prejudice to any
decision on admissibility which the judge hearing the application might
make. Paragraph 15 is therefore struck out (together with Exhibit B) without
prejudice to Mr. de Rijckes report being re-filed in an acceptable way.

- Page 7 Paragraph 17:


"On or about June 10, 2014 I am advised by Ms. Schernitzki and do verily
believe that, while waiting for Mew J. to join a case conference call, Mr.
Rutherford volunteered in a sarcastic tone that reference by MTCC to our
claims against MTCC in a Status Certificate was a "good way" to subvert the
sale of the Unit by the owners at market value. I am advised and do verily
believe that Ms. Schernitzki understood Mr. Rutherford's statement to be a
veiled but clear threat that MTCC was willing to subvert the sale of the Unit
by us by inserting particulars about the dispute with us in a Status Certificate
in a way which would cause purchasers to rescind and/or require a price
discount from us. In my view, said statement by Mr. Rutherford validates my
understanding that MTCC will inflict punishment on owners who are
perceived to be difficult or out-of-line".
MTCC: The paragraph should be MacKay/Cheney:
Clients
have
excluded as it contains the evidence instructed that this evidence is
of Ms. Schernitzki, counsel for Ms. presented. The conversation was not
MacKay and Mr. Cheney. The without prejudice.
conversation occurred during the
course of discussions that took place
immediately
prior to
a case
conference which should be regarded
as without prejudice.
Disposition: The deponent of an affidavit should not act as counsel and rely
upon the affidavit. That principle should be extended where counsel is not the
deponent but is the source of the information relied upon by the deponent in
relation to a key factual matter: Manraj v. Bour (1995), 44 C.P.C. (3d) 111
(ON Ct. Gen. Div). Further, the evidence relates to counsel to counsel
discussions amounting to advocacy and positioning and should not be
regarded as with prejudice. The paragraph is struck out.
[18]

Paragraph 22:
"In addition to expressing our opinion that it was shortsighted to continue to
resist consultation among the engineers, despite Mew, J 's conclusion at
paragraphs 65 and 71 of the Reasons ... "
MTCC: This narrative recites the MacKay/Cheney: The context of
position taken in a lawyers letter these words is that they are part of a
(Exhibit F).
It is presented as narrated chronology of events.
opinion evidence.
Disposition: The words recite the contents of a letter exhibited to the
affidavit, to which exhibit objection is not taken. The words complained of
are likely redundant (because they can be referred to by looking at the
exhibit) but are not sufficiently offensive to warrant striking.
The
applications judge can decide whether they are of any relevance or assistance

2015 ONSC 958 (CanLII)

[17]

- Page 8 to the court. Words not struck out.

Paragraph 23:
"It was decided by the representative of Nancam and Pinchin that they would
have to continue to investigate, with the result that restoration of the drywall
ceilings in the bathrooms by Toronto Decorating on May 29, 2014 was
cancelled".
MTCC: Hearsay. Furthermore, the MacKay/Cheney: The deponent was
statement it was decided is present during these discussions and
objectionable. That is the deponents that is his recollection of what was
opinion.
decided. A letter summarising what
was said is attached as an exhibit.
Disposition: The evidence is what the deponent says he saw, heard and
understood. There are similar references in a letter (Exhibit H) to which
objection is not taken. Words not struck out.

[20]

Paragraph 25:
"There was also general recognition among those present on June 2, 2014
that the disequilibrium in pressure between the two units was drawing air
from unit 313 into the Unit, and that this disequilibrium ultimately
had to be addressed as part of the problem."
MTCC: Hearsay.
The deponent MacKay/Cheney: The reference is
should not be reciting what the to a meeting which is documented in
experts thought.
reports that will be before the court.
The judge hearing the applications
can determine whether Mr. Cheneys
assessment of what the experts said
at the attendance on 2 June 2014 is
accurate.
Disposition: The evidence is what the deponent says took from the meeting.
Reports will be available to the court which will address what came out of the
2 June 2014 attendance. Words not struck out.

2015 ONSC 958 (CanLII)

[19]

- Page 9 Paragraph 29:


"To the best of my knowledge, information and [belief] from June 5, 2014 to
July 18, 2014 no further remedial work was undertaken or attempted,
including the work which I had been told by Mr. Brearton would be
undertaken to perform "pencil tests" or, if it was done, it was done in secret"
MTCC: This is opinion evidence and MacKay/Cheney: This is Mr.
speculation.
Cheneys understanding.
If hes
wrong, evidence to that effect can be
presented.
Disposition: The deponent is saying that as far as he knows nothing further
was done in the time period specified. It is unobjectionable. Words not
struck out.

2015 ONSC 958 (CanLII)

[21]

- Page 10 Paragraph 34:


"On or about June 17, 2014I am advised by Ms. Schernitzki and do verily
believe that Mr. Rutherford told her for the first time, during a telephone case
conference with Mew J and Jason Mangano, that MTCC would be amenable
to the engineers meeting to consult with respect to these matters and, on June
18, 2014, Mr. Rutherford called her to confirm his instructions. Ms.
Schernitzki advised Mr. Rutherford that she was inclined to leave the matter
of making arrangements to meet with the engineers but would discuss the
same with Mr. Farkas to determine what information, if any, he would
require in advance of the meeting and his availability and would follow
up with a letter. I am advised that Ms. Schernitzki and Mr. Rutherford spoke
again on June 20, 2014 and during that telephone call Ms. Schernitzki
advised Mr. Rutherford that she had discussed the matter with Mr. Farkas
and that he required some information in advance of the meeting but was
available to discuss the matter on June 25-27, July 2 and 3, 2014. I am also
advised that during that telephone call Mr. Rutherford agreed with Ms.
Schernitzki that Mr. Farkas would need all reports and test results and
observations made by Pinchin since they were hired in early April 2014 and
said that he would discuss the same with Pinchin. Attached hereto and
marked as Exhibit "P" is a true copy of a letter dated July 31, 2014
summarizing these telephone calls between Ms. Schernitzki and Mr.
Rutherford."
MTCC: This is Ms. Schernitzkis MacKay/Cheney:
Clients
have
evidence. It relates to ongoing instructed that this evidence is
discussions
aimed
at
dispute presented. The conversation was not
resolution and should also be without prejudice.
excluded on that basis.
Disposition: It would seriously inhibit the ability of lawyers to look for
solutions in this case relating to the possible collaboration of experts
retained by the parties if every conversation and other communication was
to be regarded as with prejudice and liable to end up in evidence through one
of the lawyers present recounting what was said to her client, the deponent.
The communications should be regarded as without prejudice. Furthermore
the principle articulated in Manraj v. Bour applies: counsel should not be a
witness.

2015 ONSC 958 (CanLII)

[22]

- Page 11 [23]

Paragraph 38:

2015 ONSC 958 (CanLII)

"I am advised by Ms. Schernitzki that, on or about July 18, 2014, she
provided Mr. Farkas with a copy of the letter dated July 18, 2014 and
Pinchin's report dated July 14, 2014 and instructed Mr. Farkas to contact Mr.
Brearton. I am advised by Mr. Farkas that he spoke on the telephone with Mr.
Brearton on July 24, 2014 and he asked Mr. Brearton to send him all test data
and reports prepared since April 28, 2014 and Mr. Brearton agreed to do so.
In addition, with respect to the pressurization in the units, Mr. Brearton did
not want to comment on the pressurization issue since he is not an air
circulation expert and I am advised by Mr. Farkas that the engineers agreed
to have another conference call on either July 25 or 28 with Mr. Brearton's
colleague, Bryn Jones, whose engineering speciality is air movement."
MTCC: This is contentious. It MacKay/Cheney: The evidence of
should only be in evidence if Mr. Mr. Farkas will be part of the record.
Farkas
provides
an
affidavit
incorporating or attaching his report.
Disposition: Upon the undertaking by counsel to put a report from Mr.
Farkas into evidence (through an affidavit incorporating or attaching his
report), the words need not be struck.
[24] A revised affidavit which takes account of these rulings as well as the other agreed upon
amendments should be delivered by 6 March 2015, together with any other affidavits relied upon
by the moving parties in the pending applications. Any responding affidavits in the applications
should be delivered by 2 April 2015. Cross-examinations (if any) should be completed by 1 May
2015. My judicial assistant will liaise with counsel regarding dates for a case conference in early
May and a hearing date for the applications.
[25] The costs of this motion should be reserved to the judge hearing those applications in
which the Cheney affidavit is tendered in evidence.

Mew J

Date: 12 February 2015