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

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?   

[52] I turn now to the plaintiffs' claim against the Condo Corporation. The plaintiffs claim damages for slander of title and for property damage.

[53] The plaintiffs allege that the registration by the Condo Corporation of a notice of lien for $967 on November 22, 2005 was a slander of title.

[54] The elements of the tort of slander of title are:

(a) that the party registering the offending instrument published words in disparagement of the complaining party's property;

(b) that such words were false;

(c) that the words were published with actual malice in that the words were published with the direct objective of causing damage;

(d) that the complaining party has sustained special damages as a result.

[55] The onus of showing that the statement was false rests on the plaintiffs.

[56] The plaintiffs have not met the onus of showing that the Condo Corporation made a false statement.

After reciting the relevant evidence as to the debits and credits, Her Honour found that the unit owners were clearly in arrears of common expenses at the time the lien was registered. She then went on to say:

[72] I find that the plaintiffs have not met the onus of proof of showing that the notice of lien was false. There is no need to deal with the other elements of the cause of action. I find that the claim for damages for slander of title fails.

Justice Low then dismissed the claim for slander of title, as well as an unrelated claim over property damage.  She further dismissed the unit owners’ claims against their bank over the amount owing on their mortgage.

Because they were completely successful at trial, the condo corporation and the bank were each awarded part of their legal costs. The plaintiffs (who represented themselves in the lawsuit) were ordered to pay costs of $20,000 to each defendant, representing about half of the total costs paid. In reaching her decision about the precise amount of the costs to be paid, Her Honour considered that:

The plaintiffs appear genuinely, although mistakenly, to believe that they have been treated oppressively. On the evidence before the court however, it is apparent that the plaintiffs have been the authors of their own misfortunes through their failure to appreciate the consequences of and to take responsibility for their actions and inactions, their failure to appreciate that their litigation conduct was increasing the costs which might be awarded against them, and their apparent unwillingness to take legal advice.

This observation is strikingly familiar to us condo lawyers because it accurately describes the situation in most lawsuits brought by unrepresented unit owners against their condo corporations. The outcome of those sorts of lawsuits is invariably bad, with serious financial consequences both for the unit owner plaintiffs and the defendant condominium corporations.

Unit owners with a problem with their condominium corporation should get legal advice as to whether they have a case before they start a lawsuit. They should then follow their lawyer's advice.

#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 first lesson is simple but critically important:   Directors owe a fiduciary duty to the corporation and only the corporation.   The Court found that, in cases where the interests of the corporation and those of stakeholders do not coincide,

[I]t is important to be clear that directors owe their duty to the corporation, not to stakeholders, and that the reasonable expectation of stakeholders is simply that the directors act in the best interests of the corporation.

The second lesson is that directors must make decisions in a manner that considers the interests of all affected stakeholders. Failing to do so may give rise to a claim that the directors are acting in a manner that is “oppressive or unfairly prejudicial or that unfairly disregards the interests” of a stakeholder, contrary to section 135 of the Condominium Act, 1998.  After considering the cases on oppression, the Court found that:

[T]he duty of the directors to act in the best interests of the corporation comprehends a duty to treat individual stakeholders affected by corporate actions equitably and fairly. There are no absolute rules. In each case, the question is whether, in all the circumstances, the directors acted in the best interests of the corporation, having regard to all relevant considerations, including, but not confined to, the need to treat affected stakeholders in a fair manner, commensurate with the corporation’s duties as a responsible corporate citizen.

While lawyers will continue analyzing its impact for a while, the Supreme Court’s decision in the BCE case offers guidance to condominium directors who routinely make tough decisions that may not please all of their unit owners:  The directors’ main duty is to the corporation, and their decision-making must be even-handed and treat parties fairly.   This ruling also helps explain to unit owners and other stakeholders the criteria that must ultimately guide the directors’ decisions and it sets a benchmark to help stakeholders determine if their rights have been infringed.