Ontario Condo Law Blog : Toronto Condominium Lawyer & Attorney : Gardiner Miller Arnold Law Firm : Ontario, Ottawa, Hamilton, Kitchener

Canadian courts and tribunals decided plenty of condo law cases during the first quarter of 2013.   Here’s a roundup of the most notable.

ONCA: Condo board deemed to know about a claim after unit purchaser with specific knowledge of that claim joins the bd. http://canlii.ca/t/fv10w

ONSC stays lawsuit over shared facilities dispute between 2 condos until mediation and arbitration exhausted. http://canlii.ca/t/fvhtp

ONSC: Mortgagee awarded costs of application for condo lien discharge when condo's lawyers run up big bill needlessly. http://canlii.ca/t/fvm3f

OMB sets terms of minor variance to reduce parking space requirement at Brampton temple in a condo unit. http://ow.ly/h6MhL

ONSC: Condo corps are landlords that may require personal use of an owned unit and can evict tenants, per RTA s.46. http://canlii.ca/t/fw3mj

ONSC sets procedure for YCC 42 unit owners to review and object to accounts of that condo's outgoing administrator. http://canlii.ca/t/fvwwm

ONCA orders rectification of title register in land boundary dispute. http://bit.ly/ZpjMqL

HRTO: No discrimination by condo and property manager requiring unit owner to remove unauthorized balcony enclosure. http://canlii.ca/t/fvsl4

ONSC: Condo to pay oppression damages of $40K + costs for not enforcing noise rules and for harassing complainant. http://ow.ly/hTFHP

ONSC: Remedial work on condo garage was maintenance and repair, not “substantial change” as alleged by unit owner. http://canlii.ca/t/fwd1p

NSSCC: Condo recoups damages re water heater leak on basis of owner failing to stop flood, not failure to maintain. http://canlii.ca/t/fw64z

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Condos would be wise to consider immediate filing of a 2013 Request for Reconsideration with MPAC for their superintendent's unit and any other common amenity service unit before the imminent April 1st filing deadline, in order to take advantage of the new $9 nominal assessment ruling.

The Assessment Review Board ruled last Friday that 40 participating supers' units should be assessed for taxation at nine dollars each. That means no municipal tax.

That precedent is important because it applies not only to supers' units, but extends also to other common amenities service units, such as parking, guest, mechanical, gatehouse, recreational and other units owned by the corporation providing amenities or services to its unit owners. The ARB based its primary decision upon analysis of the nature of service easement aspects which merge s. 12 of the Condominium Act with s. 9 of the Assessment Act to enable an exemption from the full current value concept which otherwise governs assessment of realty parcels.

The ARB concluded alternatively that the market value of the supers' units was minimal and already resided in the owners' residential, parking and locker units.

The ARB also concluded that it was inequitable to assess supers' units differently than guest units. Last year, Bob Gardiner had convinced MPAC to reduce the assessment of over 200 of GMA's condo clients' guest and visitor parking units to a nominal assessment of $9 each, based upon his unique Request for Reconsideration rationales.

Bob has persistently spear-headed this initiative since 2005. Much of the language of the 35 page decision is based on his written and oral argument explaining over 100 legal concepts to rationalize 6 grounds for appeal, supported by 14 legal precedent cases contained in his Legal Authorities binder, as well as 200 pages of documents in his Statement of Facts binder.

David Fleet, an assessment law expert, and Carol Dirks, a condo lawyer, also forcefully submitted key arguments in a teamwork approach. The team convinced the ARB to accept a "condo world" view of common amenity service unit assessment, instead of the assessment arguments so capably submitted by MPAC's lawyer, Don Mitchell.

It is possible MPAC may appeal the ARB's decision, but the deadline to file the 2013 Request for Reconsideration for your Corporation’s common amenity service units expires April 1, 2013. You should receive legal advice well before that deadline. You can file even if you have already paid the tax. A copy of GMA’s 2013 RfR enrollment form and further information can be obtained from Gardiner Miller Arnold LLP by emailing bob.gardiner@gmalaw.ca.

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Noteworthy costs awards were recently released in Middlesex Condominium Corporation No. 232 v. Owners, which we cited as number 6 in our top 10 condo law cases of 2012 as follows:

Faced with an increasingly unhappy ownership, the board commenced an application for appointment of an administrator. The owners then requisitioned a meeting to remove directors, prompting the board to make an unsuccessful bid for the requisition meeting to be delayed until after the application for appointing an administrator was heard. The court ultimately dismissed the board’s application to appoint an administrator, finding that s. 131 of the Condo Act was designed as a last resort for condominiums in perilous circumstances and not as a way to allow a board that has lost the confidence of the owners to get their way regardless of the democratic will of the owners. The court has not yet released its decision on costs, but given this board’s brazen disregard for owners’ democratic rights, this seems like a suitable case for the directors to be held personally responsible for the legal costs as in Boily v. CCC 145 above. The tactics used by the corporation in this instance were despicable.

While it may not be clear from this description, the MCC 232 case is made up of two components decided by different judges: The board’s application for appointment of an administrator that was heard by Justice Carey and, second, the board’s motion heard by Justice Bryant for an injunction to restrain an owners’ meeting to remove the board until after the application for appointment of an administrator was decided. Both components were dismissed and the old board was removed and replaced. The rulings on costs were subsequently reserved until February 11, 2013.  We understand that leave to appeal these costs rulings is presently being sought.

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Compared to our American neighbours, Canadian courts play host to relatively few class action lawsuits. Class actions involving condominiums are quite rare.  Even rarer are class action suits that actually generate significant cash returns to condominiums but, as they say, there is a first time for everything.

In 2008, Toronto Community Housing Corporation (TCHC) commenced a class action lawsuit against ThyssenKrupp Elevator over the cost of replacing faulty sheave jammers installed during or before 2006. A sheave jammer is a secondary braking device designed to stop the movement of an elevator in the event the primary control and braking systems do not operate effectively. 

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Because we’ve been tardy in posting our microblog pieces lately, here is a super-duper bundle of condo-related decisions by Canadian courts and tribunals released since our last microblog compilation post on April 30, 2012.  

Enjoy these items while preparing chestnuts on an open file, but please be sure to exercise proper fire safety techniques.

COURT AND TRIBUNAL DECISIONS

ONCA: Tarion warranty rulings don't preclude civil suits for condo construction defects (unless LAT decides appeal). http://canlii.ca/t/fv135 

ONSC avoids deciding whether proxies from condo meetings should be redacted before inspection by unit owners. http://canlii.ca/t/fv9fn 

ONSC awards partial costs on condo corp's compliance application, setting up the owner for a big surprise later. http://canlii.ca/t/ftrpd 

ONCA: Consumer Protection Act applies to hot water heater rentals, affirms supplier's liability for damages after leak. http://bit.ly/11jC0rp 

ONSC approves class action settlement re ThyssenKrupp elevator sheave jammers. Deadline for claims is March 29, 2013. canlii.ca/t/ftvp5 

ABQB appoints investigator at unit owner’s request when ineptitude of condo bd and mgmt amounts to “improper conduct.” http://bit.ly/JbbjeI 

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It’s time for our annual tradition of looking back at the past year of cases decided by Ontario courts and tribunals and highlighting a few noteworthy items.

Selecting this year’s batch is slightly trickier because we have not posted a microblog entry since late April 2012, but those readers following me on Twitter will have been kept up to date all along.  For those of you not following the live feed, I’ll post those items separately and will make it my new year’s resolution is to keep up those posts more frequently. 

Here we go.  Drum roll, please!

10.       Pearson v. Carleton Condominium Corporation No. 178, 2012 ONSC 3300

Indemnification clauses contained in condo declarations, by-laws and rules do not permit condo corporations to recover (as common expenses) legal costs incurred in defending against small claims court actions brought by unit owners.  The court vacated a lien registered by the condo to secure collection of its legal costs incurred where the small claims court dismissed the unit owner’s action against the condo but did not award the condo any costs.

9.         York Condominium Corp. No. 42 v. Hashmi, 2012 ONSC 4533

After six years of court-appointed administration, the unit owners of YCC 42 voted overwhelmingly in favour of returning to self-governance but needed the court to give detailed directions on conducting the first election of directors.  Given that director elections are amply governed by the Condo Act and the corporation’s own by-laws, the fact that a court ruling was required does not bode well for this condo’s successful rehabilitation from administration.  Let us hope that these unit owners have learned the lesson to pay attention to the goings-on at their condo and, further, to ignore the siren song of “vote for me and I’ll reduce your condo fees” which brought this condo and others like it to the brink of disaster.

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A recent decision of the Ontario Small Claims Court tackles the interesting issue of whether and how condominium boards can reverse earlier decisions in maintenance and repair scenarios.

In 2005, the board of a 40-unit lot-line townhouse complex authorized payment for work to address a recurring plumbing backup problem that was unique to one particular unit. The board of the day had insufficient money in its reserve fund to pay the cost of fixing the problem on a permanent basis but apparently resolved to do the work once the corporation was in a better financial position.

A new board and property manager subsequently took the position that the problem in this unit’s sanitary sewer was not related to the common elements and that the owners of the unit were therefore responsible for solving the problem. The board did not seek to recover its expenditure for the earlier repairs but refused to conduct or pay for any further repairs.

In 2011, the unit owners hired a contractor to repair their sanitary repairs at a cost of $4,500. They asked the condo corporation to reimburse them and, when the request was refused, the unit owners sued the condo in small claims court on the basis that the condo corporation had committed itself with the board's 2005 resolution to solve the problem one day.

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The sheer volume of new condos currently under construction in the Greater Toronto Area means that we at the Ontario Condo Law Blog will be keeping busy for a long time to come.  It also means that a new generation of condominiums, boards and unit owners will soon begin the inevitable dance with developers over construction deficiencies.  

One of the easiest and most costly mistakes the board of a new condominium can make is to lose the right to sue the developer for construction deficiencies by waiting too long.   Although the limitations law in Ontario was changed 10 years ago, too many people still don’t know that claims arising after January 1, 2004 must be pursued with a lawsuit within 2 years of discovering the claim.  Condominium boards fall into that trap routinely, as illustrated by a recent Ontario Superior Court case against a condo developer over construction deficiencies in the common elements.

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Since the landmark case of Jones v. Tsige was released on January 18, 2012, the legal press and blogosphere have been buzzing about the newly developed tort of “intrusion upon seclusion.” The case represents a major development in privacy law and provides people whose privacy has been breached with a new way to seek redress.

Since this case will have practical implications for condominium corporations, it was a pleasure for me to report on this case to a whole roomful of condominium managers just two days after it was released.

These are my speaking notes for the talk I gave at a legal grab bag luncheon for the Association of Condominium Managers of Ontario on January 20, 2012. ACMO members can soon watch the video of the entire luncheon presentation online (login required).

Enjoy.

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As the world learns more of the gut-wrenching details of the Costa Concordia disaster and the utter recklessness and stupidity shown by the ship's captain, a similar story has emerged here at home which should concern any person living in an apartment or condominium building.

The Costa Concordia's captain will live in infamy not only for the daredevil stunt which caused the ship to hit a reef, but also for his decision to delay the evacuation order and advise passengers that the catastrophic damage to the ship’s engine and power plant was a trifling electrical problem that was under control. Evacuation did not begin until over an hour later, when the ship was already sinking and in much more serious trouble. This made evacuation far more dangerous and some people could not escape safely or at all. At least 17 people died, 17 are still missing and many more were injured.

On January 19, six days after the Costa Concordia ran aground, a fire broke out in an Edmonton condo building. It took 70 firefighters 15 hours to contain the blaze, which completely destroyed 50 of 82 suites. Damages are estimated to exceed $13 million. Luckily, there were no injuries but almost 100 people were left homeless.

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As one of our annual traditions, it is time to unveil our picks for the top 10 cases of the year gone by.  2011 brought us a bumper crop of condo-related cases by Ontario courts and tribunals, with almost 50 reported decisions cited in the @ChrisJaglowitz Twitter feed and frequently summarized in our microblog entries.

Here are our selections:

#10 -- York Region Condominium Corporation No. 890 v. RPS Resource Property Services, 2010 ONSC 3371

News of several condo frauds broke in 2011 but there was only one reported court decision on the topic, for a fraud between 2003 and 2005.  The management firm here “borrowed” money from one condo to finance its own operations and those of its other condo clients and then repaid the money before year-end so as to avoid detection by the condo’s auditors.   The plot unravelled when the condo changed managers and the fraudster was short $370,000 at year-end.  The management firm and its principal were liable for breach of contract, breach of trust and conversion and were ordered to repay the $370,000.  The condo’s claim against its bank was dismissed.  We commented on this case and listed a number of takeaway points.

#9 -- York Condominium Corporation No. 26 v. Ramadani, 2011 ONSC 6726

The court granted a compliance order requiring the removal of a dog accused of peeing on a balcony.  Despite the owner’s arguments, the condo was found to have acted reasonably in demanding the dog's removal.    Condominium boards and managers must act reasonably in enforcing condo rules and what is “reasonable” will be decided on a case by case basis, but courts will not substitute their own opinion for that of the board or manager.   Justice Strathy gives a good overview of the current law related to condo rule enforcement and his decision stands for the proposition that unit owners who think that a condominium must prove an owner’s wrongdoing beyond a reasonable doubt before taking steps against them are just fooling themselves and needlessly risking their financial security.  The case also confirms that the court has a broad discretion in fashioning an appropriate remedy which minimally affects the unit owner but which effectively solves the problem.

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A serious injury or fatality occurring on a condominium’s common elements gives rise to a host of issues and things that must be done promptly. One notification that many condominium boards and managers might not consider making is to the Ministry of Labour, particularly if the injured person is not a employee or contractor performing work for the condominium corporation.

A recent decision of Ontario’s Divisional Court clarifies the obligation of employers to report to the Ministry of Labour (“MOL”) critical injuries or fatalities suffered by people at their workplace and confirms that the obligation extends to non-workers.

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While it is routine for money to flow from condominium corporations to their managers for payment of regular management fees, there are few valid reasons for other such transfers. It is, for instance, completely improper for a management firm to “borrow” its clients’ funds to finance its own operations or to “lend” funds to its other condo clients.

A recent Ontario Superior Court decision highlights precisely such a scenario and brings several important lessons for condominium directors.

In 2005, York Region Condominium Corporation No. 890 (better known as Pacific Mall in Markham) brought a lawsuit for damages against its property manager, RPS Resource Property Services Ltd. (“RPS”) and William Garland (“Garland”) who was RPS’s principal, for breach of fiduciary duty, breach of trust, conspiracy, fraud and breach of their obligations under the Condominium Act, 1998.

The condo also named Royal Bank of Canada (“RBC”) and sought damages for breach of contract, negligence and conversion.

The trial took place over several days in June 2010 and the ruling was released this month. The full decision is now reported here. We will reproduce some of the highlights here, but time-starved readers can skip to the bottom to see the important lessons.

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Ontario’s courts and tribunals were busy this past year with condominium matters. We reported on over 35 decisions on our microblog over the course of 2010.   Here are our picks for the top 10 cases of the year.

#10 -- Lexington on the Green Inc. v. Toronto Standard Condominium Corporation No. 1930, 2010 ONCA 751

The Ontario Court of Appeal held that a condo corporation cannot use Condo Act s.112 to terminate an agreement for the corporation to purchase the superintendents’ unit from a developer where the obligation to enter into such an agreement is set out in the declaration.  This is a game-changing decision that can drastically affect a condo corporation’s finances.   According to Bob Aaron, new condo buyers must be extraordinarily careful in reviewing the disclosure materials and draft declaration before signing on the dotted line. Caveat emptor -- Buyer beware.  

#9 -- Essex Condominium Corporation No. 89 v. Glengarda Residences Ltd, 2010 ONCA 167

In another case dealing with disclosure, the Ontario Court of Appeal overturned a trial judge’s ruling that the condos’ developer failed to adequately disclose that the HVAC system serving the shared facilities was leased. The court then set aside the trial judge’s award of damages made under Condo Act 1990, s.52 (replaced by Condo Act 1998, s.133). While the disclosure statement did not reveal the terms of the lease, interest rate or cost of the equipment, it clearly revealed that the equipment was leased and gave what turned out to be a fairly accurate estimate of the cost. This was held to be sufficient disclosure that the HVAC equipment was not owned by the condo corporation. While it was challenged by the developer/appellant, the court upheld the earlier case of Wellington Condominium Corp. No. 61 v. Marilyn Drive Holdings Ltd., 1998 CanLII 2289, which is the leading case on false and misleading statements under the Condo Act.

#8 -- McFlow v. Simcoe Condominium Corporation No. 27, 2010 ONSC 6260

A mortgagee’s bid to remove and replace the court-appointed administrator of a deeply troubled condo corporation was denied. The administrator was appointed a year earlier at the behest of that same mortgagee and while things were moving slowly, there was demonstrable improvement and no evidence of mismanagement as before. The test for removing a court-appointed administrator of a condominium is the same as the test for appointing one under Condo Act, s.131. 

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The forced sale of a condo unit is among the most drastic remedies a court can order on an application to compel an owner's compliance with the Condo Act or with the declaration, by-laws or rules of a condominium corporation. This kind of remedy is granted only in extremely rare circumstances. This is the story of one of those cases.

In MTCC 747 v. Korolekh, a condo corporation sought a court order directing an owner to sell and vacate her unit or, in the alternative, to change her behaviour, so as to comply with to section 117 of the Condominium Act. That section provides:

“No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.”

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As the deterioration of society supposedly continues and with municipal election season rapidly approaching (with its related canvassing), the temptation to physically remove unwanted visitors at your condo building is probably reaching its peak.

While condominiums are increasingly viewed as a secure sanctuary from the outside world, protected by heavy doors, security and staff, a recent decision of the Ontario Superior Court of Justice sends a warning about manhandling unwelcome guests.

At issue in the case of Jia v. TSCC 1479 is an ugly assault and battery perpetrated by a condominium superintendent against a visitor.  The case offers a number of important lessons for condo boards and managers.

Some of the highlights of the judge’s decision-making process and her findings are set out below. The paragraph numbers are as they appear in the court’s written decision. At the end, we offer some suggestions to help keep your condo out of danger.

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A recent Ontario Superior Court decision clarifies how to quantify the “additional actual costs” incurred by condo corporations in obtaining compliance orders under section 134 of the Condominium Act, 1998.  

In MTCC 985 v. VanDuzer, the corporation was successful in obtaining a compliance order requiring the unit owner to remove a gazebo erected by an owner on exclusive use common elements.

Having decided the case in favour of the condominium corporation, the Court said the following about costs:

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The Ontario Superior Court recently restrained a meeting called by unit owners after the condo failed to respond to a duly-filed requisition for calling a meeting to remove directors.

Finding itself in the midst of serious financial trouble and facing stiff resistance by owners after making several tough choices, the board decided in December to apply to the court for the appointment of an administrator. The application was not commenced until three months later, in late March, a few weeks after receiving a requisition by owners to hold a meeting to remove the board.

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Another interesting lesson emerges from Jeffers v. YCC 98, the slander of title case we reported about earlier this year.

After dismissing the plaintiffs’ lawsuit at trial, the court ordered the plaintiffs (the unit owners) to pay about 50% of the legal costs incurred by the defendant condo corporation and the co-defendant bank.

Unsatisfied with that costs award, the condo made further submissions about why it should recover 100% of its legal costs from the unsuccessful unit owners. In support of that request, the condo relied on an offer to settle it had made during the litigation and also section 134(5) of the Condo Act, which provides as follows:

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This month’s news featured a horrifying story of a serious fire at the Millrise, a 159-unit condominium building in Calgary.   Luckily, no one was seriously hurt, but 300 people are homeless and the 3-story wooden building was subsequently condemned by the city as uninhabitable. 

We carried the following related news articles on our microblog, some of which feature video footage of the fire and resulting damage:

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The Ontario Human Rights Tribunal has become an increasingly popular venue for frustrated condo unit owners to bring their grievances against condo boards and property managers. This is thanks to the low cost to file a case, simple procedure, ability to self-represent and obtain free legal advice and help. Most such cases, however, are not made in response to discrimination where a unit owner’s human rights are violated. Instead, most cases brought by unit owners are complaints relating to bad service, poor treatment, insults or rudeness by the board or manager.

While rudeness and insults to unit owners are never be acceptable, the Human Rights Tribunal is quite properly throwing out cases where the bad behaviour does not amount to legal discrimination or actual  violation of human rights. The February 2010 decision of the Human Rights Tribunal in the case of Iourtchak v. York Condominium Corporation No. 201 serves as a good example.

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In a decision dated January 27, 2010, the Ontario Energy Board ruled that Toronto Hydro breached the Electricity Act by refusing to connect hydro service to the bulk meters of new condominium projects unless all units in the condominium are individually smart-metered by Toronto Hydro and become a customer of Toronto Hydro.

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The Ontario Superior Court of Justice recently confirmed the simple notion that a condominium lien is not slander of title where the unit owner is in arrears of common expenses at the time the certificate of lien is registered on title.

The following portion of Madam Justice Low’s decision in Jeffers v. YCC 98, 2010 ONSC 474 (CanLII) is instructive:

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A February 2009 decision of the Alberta Court of Queen’s Bench should be added to the list of notable condo cases for 2009. Check out Dykun v. Cravenbrook Condominium Corporation No. 032 1893.

After changing managers on December 1, 2007, the condominium’s board discovered that the previous manager had improperly withdrawn money from the reserve fund to pay operating expenses, leaving the corporation on the brink of insolvency.

Two months later, the board announced that it was levying a special assessment to raise the money necessary for the corporation to continue operating and to replenish the reserve fund.

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As 2009 drifts into the history books, we look back at some of the notable condo law decisions made by Ontario courts and tribunals in the year gone by.

Here are ten of them, in no particular order.  Click the bolded case names to view full text decisions at Canadian Legal Information Institute ("CanLII").

#1 - Nipissing Condominium Corporation No. 4 v. Kilfoyl, 2009 CanLII 46654 (ON S.C.)
Corporation obtains a compliance order against owners operating a boarding house in violation of the “single family residence” provision in the declaration. The owners unsuccessfully claim that the case must first be mediated/arbitrated (as per Condo Act s. 134(2)), and that the single family use provision violates the Human Rights Code. The case is now under appeal.

#2 - Metropolitan Toronto Condominium Corporation No. 1250 v. Mastercraft Group Inc, 2009 ONCA 584 (CanLII)
The Court of Appeal makes important rulings on the following interesting issues in this nightmare case over a conversion building:

1. When does a subsequent landowner become a “declarant”
2. Whether fixtures can be separated from common elements by the declarant and then leased to the condo corporation
3. What factors must be considered in determining whether a construction warranty is breached.
4. Whether the right to rent a parking spot is an easement appurtenant to each residential unit

Application for leave to appeal this case has been made to the Supreme Court of Canada [and dismissed].

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Anyone still trying to circumvent Ontario’s anti-smoking laws by operating as a “private club” should consider this recent advice from our Court of Appeal: Don’t bother.

In Kennedy v. Leeds, Grenville and Lanark District Health Unit, 2009 ONCA 685 (CanLII), the court upheld convictions against the operator of a Smith Falls sports bar who tried to operate the place as a private club. “Members” paid monthly dues of $4.00 and submitted application forms saying that they didn’t mind second-hand smoke. The “club” was reported as having more than 500 members.

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Here are the papers from the ACMO Legal Grab Bag luncheon held November 27, 2009.   

Click the bolded names of the authors to view the papers in PDF.   To save the files, right-click on the bolded names and "save as" onto your computer.

David Di Lella of Horlick Levitt on what constitutes an “addition, alteration or improvement.”

Marko Djurdjevac of Deacon, Spears, Fedson & Montizambert on altering common elements to accommodate persons with disabilities.

Karen Kisiel on the latest oppression remedy case.

Kevin Inwood of Heenan Blaikie on preventing workplace harassment and violence.

Michael Pascu of Fine & Deo on how to enforce the declaration and rules in tenancy situations.

You can download all of these papers in a single ZIP file here.

Thanks again to all of the speakers for taking the time to make such excellent presentations and to prepare these helpful papers.  

From all of us on the panel, thanks to everyone who came out today!   Contact any of us if we can be of help to you.

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A June 2009 decision of the Ontario Human Rights Tribunal offers useful guidance about who is responsible for the cost of making exclusive use common elements accessible for persons with physical disabilities.

In McMillan v. Bruce Condominium Corp. No. 6, the condo complex consisted of 32 one-story detached townhouses. The balconies, yards and entrances to the units were designated in the declaration as exclusive use common elements, which is typical of such communities.

The entrances to the units were built with two exterior wooden steps extending from the landings at the front and rear of each townhouse. The landings were built with railings but the steps were not.

Over time, a unit owner developed mobility problems and became unable to enter the unit safely without assistance. The owner consequently asked the Board to install hand railings on the steps at both entrances to the unit.

The Board responded by giving the owner permission to install the railings at her cost. The owner took the position that the corporation was responsible for the cost and was obliged to accommodate her physical disability by installing the railing itself. The owner then complained to the Ontario Human Rights Tribunal that the corporation had contravened the Human Rights Code by failing to install the requested railings.

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In December 2008, the Supreme Court of Canada released written reasons for its ruling in the landmark case of BCE Inc. v. 1976 Debentureholders, 2008 SCC 69 (CanLII).  This important case discusses directors' duties and the application of the oppression remedy in business corporation law. Because these business law concepts are applicable to condominium law, the Court’s decision in the BCE case contains important lessons for condominium directors.

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Condo managers and directors can find good news in the April 2008 Ontario Superior Court decision in MTCC 932 v. Lahrkamp, [2008] O.J. No. 3885.    This was a case brought by a condominium corporation against a “self-styled watchdog” unit owner who, while opposing lobby renovations, made repeated requests for records and then relentlessly pestered office staff when his requests were not filled as fully as he expected.

After finding that the owner’s conduct amounted to harassment, Justice Backhouse said:

The Condominium Act gives the respondent the right to examine the records of the corporation. He is not entitled to abuse that right by conducting a campaign by siege against the management office and directors. Banging on the management door on several occasions, blocking the door where the staff person was working and positioning his car to impede a director from proceeding are examples of conduct which are harassing. There are a number of remedies available to the respondent under the Condominium Act including calling a meeting of owners, removing directors and suing for oppression. Harassment is not one of them. When the respondent has been asked to desist by counsel, he has not done so. He has made it clear that short of a court order he will not stop his harassment. A staff person or director should not have to feel intimidated and harassed by the respondent.

Her Honour then granted an order: 

1. Restraining the unit owner from communicating with any employee of the management office or member of the board of directors, other than in writing;
2. Restraining the unit owner from entering or coming within 25 feet of the management office; and
3. Establishing a special procedure for future requests for records by this owner, and namely that such requests be made in writing, that only one request be made per record, and that payment for copies be made in advance.

Update (May 5, 2009):   Items 1 and 2 of the above order were set aside on appeal in this case.   See 2009 ONCA 362.

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The 12th Annual Condominium Conference, held this past Friday and Saturday in Markham, was a great success and very-well attended.   Congratulations to CCI-Toronto and ACMO!

Among the most anticipated regular features of this conference is the legal expert panel, with their bizarre stories from the trenches and headscratcher court cases.   This year's panel, including our own Mark Arnold, did not disappoint us. 

Here are some of the cases highlighted by the panel this year:

Mancuso v. York Condominium Corp. No. 216, 2008 CanLII 20343 (ON S.C.)

Bulk cable TV costs can be treated as common expenses and recovered by way of a lien only where a by-law authorizes the board to supply such services and authorizes the cost  to be treated as common expenses.

Niagara North Condominium Corp. No. 125 v. Kinslow, 2007 CanLII 49188 (ON S.C.)

This case to enforce a "no pets" clause in a condo declaration was rendered by the same judge that decided 215 Glenridge Ave. Ltd. v. Waddington, 2005 CanLII 4197 (ON S.C.), where the court mixed up the hierarchy of declaration/by-laws/rules and consequently gave a perverse result that blurred the established caselaw for enforcement applications.   Having received better legal arguments in the Kinslow case, the court identified and applied the correct legal test and enforced the no-pets provision.   The highly-problematic Waddington case is now effectively expunged. 

Metropolitan Toronto Condominium Corp. No. 1143 v. Peng, 2008 CanLII 1951 (ON S.C.)

A unit owner's failure to respond to demand letters or to mediation or arbitration proceedings in a rule enforcement case does not permit a corporation to proceed directly to court for a compliance order.   Mediation and arbitration must first be exhausted if available.  A similar case is York Region Condominium Corp. No. 890 v. 1185010 Ontario Inc., 2007 CanLII 44831 (ON S.C.).

Assal v. Halifax Condominium Corp. No. 4, [2007] N.S.H.R.B.I.D. No. 2 (NS H.R.B.)

Condo corporation seeks removal of satellite dish installed by unit owner on non-exclusive use common elements without authorization and contrary to by-laws.   Owner responds by making a human rights complaint, alleging that the satellite is necessary to provide religious and cultural education for the owner's family, and that the restrictive by-law is discriminatory as to religion and and ethnic/national origin. The complaint was dismissed for lack of evidence of discrimination.

Italiano v. Toronto Standard Condominium Corp. No. 1507, 2008 CanLII 32322 (ON S.C.)

Confirms the power of arbitrators to award successful corporations their full indemnity costs for arbitration proceedings in rule enforcement cases and for corporations to recover such costs as common expenses. That power might be more limited, however, if the declaration and by-laws do not contain strong indemnity provisions.   Arbitrators may not award costs in respect of pre-arbitration proceedings such as mediation or the initial demands for compliance.

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