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

#8 -- McFlow Capital v. Simcoe Condominium Corporation No. 27, 2011 ONSC 7389

The number of condominiums under court administration has grown over the past year, as has the number of reported decisions dealing with appointment of administrators and related issues.   In this case, a motion for directions in an ongoing case that was named #8 in our top 10 list last year, the court gives useful guidance as to the materials that must be prepared and filed when condo administrators seek approval of the reports of their activities and the accounts for their fees and their lawyers’ fees.   This is a good read for anyone trying to understand how a court-appointed administrator should report their activities and fees and the principles behind a court’s approval of those reports and accounts.

#7 – Three-way tie:  Walji v. York Condominium Corporation No. 455, 2011 HRTO 1365, Parkinson v. Carleton Condominium Corporation #43, 2011 HRTO 1209 and Dai v. Metropolitan Toronto Condominium Corporation No. 971, 2011 HRTO 876

Here’s proof that the Ontario Human Rights Tribunal has become an increasingly popular venue for frustrated condo unit owners to bring grievances against condo boards and property managers.   These are just three cases among a whole bunch of complaints that were summarily dismissed as not disclosing an actionable human rights violation or as having no prospect of success.  The first case relates to statements by a board member that the owner’s unit smelled of urine. The second case alleged harassment when the condo required unit owners to remove protective weather stripping from their unit doors.  The third case was brought by a married woman offended by the condo president addressing her as “Miss.”  While these three cases were dismissed, the unit owners who brought them felt sufficiently aggrieved by shoddy treatment by the board or management.  Condos can and should avoid these kinds of proceedings by treating their owners respectfully and managing disputes more proactively.

#6 -- Jakobek v. Toronto Standard Condominium Corporation No. 1626, 2011 HRTO 1901

Just because complaints to the Human Rights Tribunal are often unmeritorious doesn’t mean they can be ignored.  In this case, the condo corporation and its management firm failed to provide a meaningful response and did not participate at the hearing of a unit owner’s complaint related to the condo’s refusal to accommodate a disabled person.   After hearing the unit owner’s evidence (no one from the condo attended), the Tribunal smacked the condominium and its management firm with a $5,000 fine, ordered the condo to amend its bylaws to permit parking mobility-assisting scooters in the garage and ordered the condo and its manager to read up on the duty to accommodate.   Condo corporations that don’t actively respond to and manage HRTO proceedings are playing with fire.

#5 --  Pantoliano v. Metropolitan Condominium Corporation No. 570, 2011 HRTO 738

This was a human rights complaint by a unit owner over condo pool rules that set separate swim hours for kids, prohibited children under age 2 from using the pool and completely banned diapered individuals (baby or adult).  The Tribunal confirmed that age restrictions in recreational facilities at condominium complexes are discriminatory on the basis of family status and consequently struck down the offending rules and awarded the complaining unit owner $10,000 as damages injury to her dignity, feelings and self-respect in response to a hostile environment created by the board during the proceedings.  This case reminds us that the concept of adult-only buildings is utterly dead in Ontario.

#4 -- Waterloo North Condominium Corporation No. 168 v. Webb, 2011 ONSC 2365

In what is probably only the fifth case of its kind, the Ontario Superior Court granted the extraordinary remedy of forcing a unit owner to sell and vacate a condo unit.  In this case, featuring a very brief decision, the court cited years of aggression, violence, threats, vandalism by the unit owner as justification for the remedy.   What’s noteworthy is that this case, like the Korolekh decision of 2010, appears to have been decided on its first appearance, but for an even more modest cost.  This case is a good example of how an efficient, economical and effective compliance application can deal with anti-social behaviour by problem unit owners.    More like these will follow.

#3 -- Pate v. Sinclair, 2011 ONSC 3997

Condo resale agreements often include a condition allowing the purchasers to back out of the deal if their lawyer is not happy with the status certificate issued by the condo corporation.  At issue in this simple discovery motion in a lawsuit over an aborted condo purchase was whether purchasers must answer questions about their lawyer finding the status certificate to be unsatisfactory.  In a nutshell, while a lawyer’s opinion and advice to purchasers would normally be protected by lawyer-client privilege, the privilege related to the opinion itself was waived by the purchasers when they pleaded in their defence that they relied on the lawyer’s opinion in terminating the transaction.  Any advice given by the lawyer as to whether the agreement could legally be terminated would be protected by privilege, but issues surrounding the purchasers’ instructions to their lawyer to terminate the transaction and the issue of “whether” the lawyer gave any advice are not protected and questions about those aspects must be answered.  While it’s not very sexy, this case is a gem for real estate litigators who will get busier when the local real estate market corrects and purchasers seek to nix their deals.  The case also reminds purchasers relying on this clause that they cannot use it in a capricious manner or in bad faith. 

#2 – Schneeberg v. Talon International Development Inc., 2011 ONCA 687

In a case related to the new Trump Tower in Toronto, the Ontario Court of Appeal agreed that a purchaser was entitled to terminate his new condo purchase agreement because the developer failed to provide occupancy and close the transaction on the specific closing date set out in the agreement.   After a good overview of the law of contract interpretation, the court said that “[t]he proper functioning of the complex and rapidly growing condominium industry depends on agreements that set out all rights and obligations of the parties in a clear fashion.”   Purchasers at other projects shouldn’t get too excited, however, because the wording of the contract in this case had a gaping hole through which the lucky purchaser beat a hasty retreat when the project got delayed and the economy turned south.    “The Donald” likely isn’t very happy with the lawyers who drafted the agreement for this project.

#1 -- Orr v. Metropolitan Toronto Condominium Corporation No. 1056, 2011 CanLII 66010 (ONSC)

Weighing in at 422 paragraphs on 75 pages, it’s only fitting that this behemoth decision, the product of 12 years of litigation ending in 40 gruelling days of trial, makes the top of our list.    At issue in the case was an unauthorized third floor built into the common elements by a previous owner who sold the unit to a purchaser who believed that the third floor was part of her unit.  See Bob Aaron’s column for a short summary of the facts.  To briefly summarize the result, the court dismissed the purchaser’s claim for an order legitimizing the third floor, granted the condo’s request for an order requiring the purchaser to close up the third floor, and awarded damages against the purchaser’s lawyers for negligence in failing to check the floor plans and tell the purchaser that the third floor was not part of the unit.   This single case is worth an entire series of smaller posts on a large number of issues, chief among them being the higher standard by which lawyers will be held in handling condo purchase transactions.  The effects of the case are only beginning to manifest themselves in the real estate bar and will likely give rise to an increase in costs for consumers.  Rumour has it that this case has been appealed, making it possible that our Court of Appeal might comment on some of the more salient legal issues, so there will likely be more that we can write about in the future.

And that concludes our list for this year!  Which of these cases are your favourites?   Would you have chosen any different cases?   Do you have any observations about the trends in the cases we’ve chosen?  Submit a comment below to give us your two cents. 

For you impatient types who would rather not wait until next December to see the top cases of the coming year, follow @ChrisJaglowitz on Twitter and watch our microblog posts to receive frequent updates during the year.  

Thanks for following our blog this year and for all your comments, kudos and support.   Visit us again in January when we dust off our crystal ball and make some predictions about which issues will define condo law in 2012.

#7 -- Jia v. Toronto Standard Condominium Corporation No 1479, 2010 ONSC 3433

A Toronto condo was found liable and ordered to pay $50K for assault and battery when its superintendent physically ejected a “trespasser.”  There is nothing new about the concept of employers being vicariously liable for the acts and omissions of their employees, but the brutal assault in this case is noteworthy. See our case comment and our quotes in the Law Times.

#6 -- East of Bay (2003) Development Corp. v. MPAC, 2010 ONSC 3337

Assessing property for tax purposes is a lot like making sausages – you probably don’t want to see how it’s done.   In this case brought by the condo developer to set aside MPACs assessment for the first two years of the condo’s existence and for a refund of all taxes paid, the court slapped MPAC for its "questionable" two-stage property tax assessment process for new condo units. The fact that MPAC was understaffed and unable to cope with a deluge of new condos on the market was no justification for using a two-stage assessment not expressly permitted by the Assessment Act, s.33(1).

#5 -- Metropolitan Toronto Condominium Corporation No. 675 v. Unit Owners, (unreported)

A condo corporation successfully obtained a court order to amend its declaration to unitize and sell an unused superintendent’s suite despite opposition by at least one unit owner. While it’s good to see a court stepping up to fill the void where needed, it’s troubling that a court might override the requirement in the Condo Act for a large majority of unit owners to democratically approve amendments to the declaration, which could include drastic plans to unitize and sell off common elements, a difficult and controversial decision. It is not clear what percentage of owners supported the amendment in this case as there are few facts set out in the court’s endorsement or the case comment by the condo’s counsel. This type of scenario is arguably addressed more appropriately by a change to the Condo Act rather than judicial intervention.

#4 -- Nipissing Condominium Corporation No. 4 v. Kilfoyl, 2010 ONCA 217

The Ontario Court of Appeal affirmed that single family occupancy restrictions in a condominium declaration do not violate the Ontario Human Rights Code.  While the court’s reasons were sparse, this troubling issue is now definitively answered. We can tell that the Ontario Human Rights Tribunal is listening because they relied on the court’s decision in throwing out a human rights complaint made by that same unit owner on the same issue (see 2010 HRTO 1036).

#3 – TIE: Metropolitan Toronto Condominium Corporation No. 985 v. Vanduzer, 2010 ONSC 900 and Kilfoyl v. Nipissing Condominium Corporation No. 4 (re costs), 2010 ONSC 6023

In cases where unit owners are responsible to fully indemnify their condo corporation for the legal costs of enforcing the declaration, by-laws and rules under Condo Act, s. 134(5), the court can order that the lawyers’ accounts be assessed.  By so doing, the court can ensure that cases are not “overlawyered.” See our case comment on Vanduzer and, for a case applying this principle, see Peel Condominium Corp. No. 452 v. Jaworowski, 2010 ONSC 4567, where the court reduced the recoverable legal costs by a whopping 66% after finding that the corporation’s lawyers had “over-resourced” a condo lien enforcement case.

#2 -- Weinberg v. Metropolitan Toronto Condominium Corporation No. 1019, 2010 HRTO 1527

The Ontario Human Rights Tribunal dismissed a unit owner's complaint about the condo’s enforcement of a “no pets clause” where an arbitrator appointed under the Condo Act had already considered the complainant’s disability and ordered the dog's removal. The case reminds us that every litigant has only one “kick at the can.” An arbitrator’s ruling on an issue cannot be revisited by another tribunal.   Similarly, in Atkinson v. Essex Condominium Corp. No. 5, 2010 HRTO 123, the Human Rights Tribunal ordered a unit owner’s complaint over a “no pets” clause to be deferred pending the outcome of the condominium corporation’s concurrent enforcement application to the Superior Court. Multiplicity of proceedings should be avoided.

#1 -- Metropolitan Toronto Condominium Corporation No. 747 v. Korolekh, 2010 ONSC 4448

This was unquestionably the top newsmaker of the year. After hearing evidence of a condo unit owner's bizarre behaviour including verbal assaults, besetting and menacing others with a dog, the Court found the unit owner to be "incorrigible, unmanageable" and ordered her to sell her unit.   See our case comment, our article in Condo Business and our quotes in the Toronto Star and the Law Times.  This appears to be only the fifth Ontario case where a sale order was given. The rarity of such orders was underlined in another 2010 case called Condominium Corporation No. 8110264 v. Farkas, where the Alberta Court of Appeal ruled that evicting condo unit owners is an extraordinary remedy, to be granted only when other incremental remedies fail. 

BONUS:   Lahrkamp v. Metropolitan Toronto Condominium Corporation No. 932, (unreported)

As another instalment of a long-running dispute between a unit owner and his condo corporation, an October 2010 decision of the Ontario Small Claims Court explores the issue of owners’ right to inspect records under Condo Act, s.55. The court rejected the argument that every request for records must be accompanied by a reason for the requested records, but held that the right of a corporation to refuse records may be appropriate where the actual motivation behind the request is being challenged, or the burden and expense to the corporation is a serious issue. Each request must be considered on its own merits. A number of requests for different sorts of records are then raised and decided. 

Thanks for reading our blog this year. Have a happy and healthy 2011.

Session: 3C - Friday at 2:15 p.m: Building Responsible Digital Communities

Moderator: Dean McCabe, Brookfield Residential Services Ltd.
Speakers:
Darryl Deen, D-Tech Consulting
Chris Jaglowitz, Gardiner Miller Arnold LLP
Denise Lash, Heenan Blaikie LLP

Join us as we explore the benefits and the pitfalls of using technology to increase communications in the condominium community. New technologies including Twitter, Facebook, discussion forums, condominium websites and blogs can make your management more effective, your board aware of owner's concerns and your owners and residents better informed about the environment in which they live. In this session we will discuss how to reap all of these benefits while still protecting the privacy of residents and understanding the legal implications and liabilities of using this technology.

Session: 4A - Saturday at 10:45 a.m.: Mediation and Arbitration - Condomunium / Human Rights

Moderator:  Mark Arnold, Gardiner Miller Arnold LLP
Speakers: 
Gary M. Caplan, LLB., Mediator / Arbitrator, McCague Peacock LLP
Steven D. Hill, RCM, Vice-President - Condominium Division, Canlight Hall Management Inc.
Christian Vernon, Lawyer, Pinto Wray James LLP

Many disagreements between unit owners and condominium corporations have a human rights
component often involving handicap or family status issues. Condominium disagreements must be mediated and arbitrated under the Condominium Act, 1998. Human Rights Complaints are subject to procedures provided for in the Human Rights Code which also include mediation and arbitration. These procedures often overlap and there is uncertainty as to the best way to proceed when a corporation is confronted with a disagreement or complaint under both legal regimes.

This session will review mediation and arbitration process and procedure under the Condominium Act 1998 and the Ontario Human Rights Code.

A panel of legal and property management experts will also review, as a case study, the recent settled case, “Tinkerbell The Dog” who moved into a Toronto condominium building designated by its Declaration as “No Animals Permitted”.

In R. v. McHale, ONCA gives an excellent review of the law on laying a private information: http://bit.ly/bXjOme (via @mortonsmusings)

ONHRT dismisses condo unit owner complaint after ONCA rules that single family use restriction does not violate Code: http://bit.ly/9wuyTn

Cigarette butts from balcony above - familiar? Condo resident tired of butts and excuses: http://bit.ly/aJDK4M (via @OttawaCitizen)

Good Canadian legal context here: RT @VPFranco: Human Rights and smoking bans in stratas and other multi-unit dwellings: http://ow.ly/1ZBWD

Nice job by @deanmccabe in setting up Facebook Group for Building Digital Communities in your Condominium - http://bit.ly/cBwtKh

Run your condo via Facebook?? The Use of Social Media in Association Governance: http://bit.ly/9TBPFa (via Colorado HOA Law Blog)

RT @canetwork: PA: Man Admits Beating HOA Landscaper With Shovel (and he didn't call the mgr/board to complain) http://bit.ly/bdwc0w

RT @OntMinLabour: Video on our new Violence in the Workplace legislation in effect June 15/10: http://www.youtube.com/watch?v=CMe_foAmTEY

RT @LawTimes: News: Even law firms unprepared for new workplace violence law http://bit.ly/aV9nng

RT @OntMinLabour: Workplace violence and harassment law comes in to effect today - http://tinyurl.com/29drz4b

Human rights claim by condo super fired in 2007 still lumbering thru the system: http://bit.ly/bsB0kY. Get legal advice when firing supers.

3rd kick at the can by Ont. MPP @rosariomarchese: Condominium Owners Protection Act, 2010 (Bill 79): http://bit.ly/dxlbWs

RT @rosariomarchese: I've just posted an audio file of my June 1 #Condo Forum, for those who missed out. Link here: http://bit.ly/dqVyEl

Sudbury condo corp alarmed at Vale Inco's plan to dig new aggregate quarry nearby - (via North Bay Nugget): http://bit.ly/9TnC1w

RT @FOXBaltimore: Doggie DNA Testing Shot Down: Baltimore condo board decides not to go forth with doggie DNA testing. http://bit.ly/9DiUiO

Hear, hear! Condominium property managers – the unsung heroes: http://bit.ly/c2zpMe (via Yourhome.ca)

In that case, the unit owner complained to the Human Rights Tribunal that the president of the condo board had treated her poorly by insulting her and instructing the superintendent to provide inferior service to this owner. A number of similar complaints were made by other unit owners on the same grounds.

In finding that the complaint did not disclose any facts or particulars of prohibited discrimination, the Tribunal said the following, which is probably true of a large number of condo-related cases being filed at the Tribunal these days:

While conflict in the context of accommodation can deeply impact those affected, the Tribunal does not have a general jurisdiction to evaluate relationships between condominium corporations and unit owners or to resolve all situations of rudeness, bad treatment or unfairness that may exist in a condominium environment. The jurisdiction of the Tribunal is limited to hearing applications that allege violations of the [Human Rights] Code. With respect to accommodation, s. 2(1) prohibits discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status, disability or receipt of public assistance.

While it is clear that the applicant is having difficulties with her condominium environment, there is no allegation of discrimination on the basis of one or more of the grounds protected by the Code.

The Tribunal finds that the Application does not raise matters which the Tribunal has the power to decide. Accordingly, the Application is dismissed.

Even though a human rights complaint may be thrown out, as it was in this case, the story might not end there. A condo and its board or managers may yet face other proceedings in other forums. If unit owners feel sufficiently aggrieved by shoddy treatment and insults, they will likely continue their efforts to seek redress and they may, after a long fight, ultimately be successful.

Condo directors or managers who act disrespectfully or permit disrespectful conduct to take place can and should be held to account.  Similarly, condo corporations whose unit owners permit this type of toxic behaviour to pervade their environment will quite rightly bear the financial cost in some form or another and will suffer from a poor community spirit and atmosphere.

That said, unit owners who feel aggrieved by conduct of board or managers should pause, get legal advice and think carefully before launching any sort of legal proceeding. They should also keep in mind that the mediation procedure mandated by section 132(4) of the Condo Act might be especially well-suited to help resolve disputes where the issues are more social or interpersonal in nature than strictly legal or technical. Condo boards and managers would be wise to actively participate in the mediation process to find a solution in such cases at an early stage, before the issues fester and give rise to disruptive and costly diversions.

Unit owners, directors and managers should also consider whether an alternative approach to the traditional adversarial dispute resolution process might help them find a better resolution of a dispute with difficult people, be they owners, neighbours, board members, managers or others. One suggestion is to check out the famous and award-winning book (shown at right) by Professor Bob Sutton of Stanford University. The book describes a particularly sensible-sounding rule with a name that is unmentionable on this blog but is briefly described on Wikipedia here. This book might be good mandatory reading for anyone who lives or works in close quarters to other human beings.  

Do you think that your condominium corporation might benefit from passing the kind of rule suggested by Professor Sutton?   

Does anybody already have a rule like this?  How's it working out?   

#3 - Carleton Condominium Corporation No. 26 v. Unit Owners, 2009 CanLII 22548 (ON S.C.) Condo successfully applies to amend its declaration in order to fix inconsistencies over the maintenance/repair obligations and boundaries of the units. Good discussion about Condo Act sections 107 and 109 and about how to properly set the stage for bringing such an application.

#4 - Ottawa-Carleton Standard Condominium Corporation No. 650 v. Claridge Homes Corporation, 2009 CanLII 25983 (ON S.C.)
Court rules that a condo corporation can sue Tarion for payment out of the guarantee fund for construction deficiencies, and that the claim against Tarion can be made with or without the declarant. Filing the performance audit under Condo Act section 44 is the only prerequisite.

#5 - 1240233 Ontario Inc. v. York Region Condominium Corporation No. 852, 2009 CanLII 1 (ON S.C.)
In this case about a shopping mall converted to a commercial condominium corporation, a unit owner applied unsuccessfully for an oppression remedy when asked to contribute to the mall’s promotional fund. The court found that the corporation can spend money from the common expenses fund on promotions and marketing. Such expenditures are consistent with the duty to manage and administer the corporation.

#6 - Wentworth Condominium Corporation No. 198 v. McMahon, 2009 ONCA 870 (CanLII)
The central issue was the meaning of the words “addition,” “alteration” and “improvement” as in Condo Act section 98. The Court of Appeal upheld the trial judge’s ruling that installing a hot tub is not an addition, alteration or improvement to the common elements. The court pointed out that some cases may require a different approach and that each case must be considered individually.

#7 - McMillan v. Bruce Condominium Corporation No. 6, 2009 HRTO 878 (CanLII)
The Human Rights Tribunal dismissed an owner’s complaint that the corporation violated the Human Rights Code by requiring the owner to pay the cost of modifying the common element stairway to his townhouse in order to accommodate his disability. See our case comment here.

#8 - DiSalvo v. Halton Condominium Corporation No. 186, 2009 HRTO 2120 (CanLII)
The Human Rights Tribunal ordered a condo corporation to install and pay for a modification to an owner’s exclusive use common elements in order to accommodate that owner’s disability, quite contrary to the ruling in McMillan v. BCC 6, above. The tribunal also fined the corporation $12,000 on the basis that the corporation violated the owner’s human rights in poorly handling the owner’s request for accommodation. This December 2009 case will get close review and further comment in the weeks ahead.

#9 - Metropolitan Toronto Condominium Corporation 626 v. Bloor/Avenue Road Investment Inc., 2009 CanLII 44718 (ON S.C.)
Interesting municipal law case about a mixed-use complex with shared parking and a screwy site plan agreement and zoning by-law. When the parking lot owner jacks up the parking rates, the residential condo owners sue for a declaration that a certain number of the spots are allocated to them. The court disagreed.

#10 - Metropolitan Toronto Condominium Corporation No. 932 v. Lahrkamp, 2009 ONCA 362 (CanLII)
A unit owner who made incessant requests for records and harassed board and management staff was ordered by the Superior Court to stay away from the management office and to follow a special procedure for requesting records. On appeal, the Court of Appeal set aside the restraining order as being too extreme for these circumstances but affirmed the rest of the order.   We commented on the original decision here. 
 

One decision from late December 2008 also deserves mention.

Metropolitan Toronto Condominium Corporation No. 946 v. J.V.M., 2008 CanLII 69581 (ON S.C.)
Condo corporation obtains a court order to sell a unit owned and occupied by a person with mental health issues who had breached previous court orders requiring the owner to rectify unsafe and unsanitary conditions. Court found that the corporation had done its best to accommodate the owner’s disability.

Did we miss any cases that you would include in this list?   Let us know!

Thanks for following our blog this year. All the best for 2010.

The Tribunal heard evidence that similar requests to install railings had been made and granted to owners in the past on the basis that the cost of the work be paid by those owners. The evidence also showed that the owner in question had previously asked for and received permission to install a shed and a hot tub on her exclusive use common elements and that she had paid the cost of those items.

The Tribunal noted that the condominium declaration contained the following typical clause:

No alteration, work, repairs, decoration, painting, maintenance, structure, fence, screen, hedge or erection of any kind whatsoever (the work) shall be performed, done, erected or planted within or in relation to the common elements (including any part thereof over which any owner has the exclusive use) except by the corporation or with its prior written consent or as permitted by the by-laws or rules.

The Tribunal also considered section 98(2) of the Condominium Act, 1998, pertaining to changes made by owners where the change or alteration relates to a common element over which the owner has exclusive use. That section permits such changes if the Board is satisfied that the proposed addition, alteration or improvement:

a)  will not have an adverse effect on units owned by other owners;
b)  will not give rise to any expense of the corporation;
c)  will not detract from the appearance of buildings on the property;
d)  will not affect the structural integrity of buildings on the property; and
e)  will not contravene the declaration or any prescribed requirements.

After considering the evidence and the interplay between the declaration and section 98 of the Condo Act, the Tribunal dismissed the complaint on the basis that:

...the [unit owner] has not experienced discrimination on the basis of disability and that [the Corporation] did not contravene the Code when the Board refused to pay for the installation of hand railings on the front and back steps of the Unit. The circumstances of this case are distinct from a condominium corporation's obligation to make common areas accessible. [The Corporation] approved the request to install hand railings within its authority but it is not responsible for areas defined as common elements that fall within a unit owner's exclusive use.

The Tribunal also correctly observed that a change made to the common elements to accommodate a disability is no different than, for example, the installation of a shed or a hot tub. The fact that a change is necessary to accommodate a disability does not change the obligations set out in the declaration or the Condo Act.