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:
- When does a subsequent landowner become a “declarant”
- Whether fixtures can be separated from common elements by the declarant and then leased to the condo corporation
- What factors must be considered in determining whether a construction warranty is breached.
- 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].
#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.