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

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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