Executive Summary: Key Legal and Evidentiary Issues

• Ms Thai’s claims of “improper conduct” by the Condominium Board were dismissed due to insufficient and contradictory evidence.

• No procedural unfairness was found; both parties were held to the same affidavit and cross-examination rules set in a procedural order.

• Application to admit new evidence, including a reserve fund study and full bylaws, was rejected under the Palmer test.

• Appeal was dismissed as it attempted to re-litigate previously decided matters and present post-hearing issues.

• Enhanced costs of $8,000 were awarded due to unfounded allegations and inaccurate statements made by Ms Thai during the appeal.

• The court reaffirmed that appeals are not an opportunity to present new grievances or evidence that could have been earlier introduced.

Background of the dispute

This appeal arises from a longstanding conflict between Ms Annie Yen Thai, a condominium unit owner, and Condominium Corporation No 9610243, which governs a 10-unit residential complex in Calgary. Ms Thai and her husband own two units in the complex. She filed an originating application asserting a wide array of complaints, including her removal from the board, governance issues, lack of repairs to her units, and service access problems.

Relief sought

Ms Thai requested a broad range of remedies:

• Access to corporate records from 2018–2022, including board minutes and resolutions

• Intercom access for her tenants

• Receipts for condominium fees for 2020 and 2021

• The right to sit on the board

• Unbiased and prompt maintenance services

• Dissolution of the Condominium Corporation or removal of certain board members

• Permission to file a claim with the corporation’s insurer for flood and roof leak damages

• Reimbursement for damages and time

• Professional inspection and repair of the leaking roof and mould issues

• An order for punitive costs

Trial-level decision

Following a procedural order dated March 17, 2022, the matter proceeded to a hearing on February 9, 2023, based on affidavit evidence and time-limited cross-examinations. Mr. Chu, the Board president, was allowed to speak on the Corporation’s behalf. The hearing judge largely dismissed the claims but ordered that Ms Thai receive receipts and any documents described in section 20.52 of the Condominium Property Regulation, upon payment of applicable fees.

Appeal and legal reasoning

Ms Thai appealed, asserting legal error and procedural unfairness. She claimed the judge failed to recognize “improper conduct” under section 67 of the Condominium Property Act and that she was denied a fair hearing. However, the Court found no reviewable error. It confirmed that oppression or unfair prejudice under section 67 is a fact-based finding, and the hearing judge had determined that the affidavit evidence was contradictory and unsatisfying. The discrepancies were not resolved through oral testimony.

Procedural fairness and new evidence

The Court rejected claims of procedural unfairness. It found that cross-examination time limits were equally applied, Ms Thai submitted more affidavits than the respondent, and she was given opportunities to present evidence. No substantive restriction or prejudice was shown. Her application to admit new evidence, including a complete set of bylaws, a June 21, 2023 AGM report, a February 22, 2024 reserve fund study, photos of mould, and post-hearing emails, was denied. The court found none of the documents met the Palmer admissibility standard and did not affect the original issues.

Cost ruling

Although the Condominium Corporation sought solicitor-client costs, the court declined, citing a lack of outrageous or scandalous conduct. However, enhanced costs of $8,000 were awarded due to Ms Thai’s misrepresentation regarding enforcement of the chambers judge’s document disclosure order. Contrary to her claims, she had been sent a document request form on August 14, 2023, along with a list of fees totaling $210. The court found her representation factually false.

Final outcome

The appeal was dismissed. The Court emphasized that appeals are not “a do-over” and do not permit the introduction of new grievances or evidence that could have been brought earlier. An enhanced cost award of $8,000 was granted to the Condominium Corporation.