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

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.