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,  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.