The Condo Act and a condominium’s governing documents generally give a condo broad enforcement powers to ensure residents are abiding by the rules. Condos often turn to their lawyers to commence expensive legal proceedings as a reliable response to non-compliant residents. In assessing costs against a condo, a recent Superior Court of Justice decision should serve as a reminder to all condos that they should take reasonable steps to resolve disputes.
Amlani v. YCC 473 is the marquee condo law decision of the year. For the uninitiated, the condo received complaints of smoking from the Amlanis’ unit and in a nutshell Mr. Amlani continually sought an open dialogue their condo to resolve the issues. The condo was not so receptive and in brief:
- Amlani offered to conduct additional engineering inspections at his cost;
- Amlani then rented his unit to a tenant with a no-smoking provision even though smoking was not prohibited at the condo;
- Despite moving out, the condo continued to send compliance letters from its lawyers; and
- Amlani then sought mediation to which the condo’s lawyer responded to by unilaterally scheduling without consulting Mr. Amlani. During the mediation, the condo’s lawyer left halfway through but still sought to impose the entire cost of the mediation on the Amlanis even though the costs of the mediation were to be split.
The condo refused to discuss the dispute with Mr. Amlani. Instead, it registered a lien and attempted to sell the Amlanis’ unit to recover $25,108.77. The sale came to a halt when the Superior Court of Justice concluded the condo acted oppressively by refusing to negotiate or consider Mr. Amlani’s solutions: the lien was discharged and costs were awarded against the condo.
The Amlanis were entirely successful in their application and were awarded $83,340 in costs (Amlani v. York Condominium Corp. No. 473,  O.J. No. 3014). This award is high but the court emphasized the condo’s conduct warranted particular sanction and an elevated cost award:
There were practical and economical solutions to the problems at hand…Instead of exploring those solutions and perhaps enhancing those that had been used in the past, the respondent embarked on costly aggressive litigation. In doing so not only did it act unreasonably; it also breached its own constating documents which require negotiation and mediation…In a nutshell, the entire proceeding could have been avoided had the respondent acted reasonably.
The court concluded its decision by stating:
…it is worthwhile to send a message to both condominium corporations and condominium residents that there are often easy, cost-effective solutions that are far preferable to litigation. Parties who ignore cost-effective solutions in favour of litigation must pay the price if they fail in the litigation.
The Condo Act is intended to be consumer-protection legislation and it can be easy to forget about this when faced with a troublesome resident. Threats of lien registration and impending litigation may scare residents straight, but it isn’t always the best approach – sometimes you don’t need to use a chainsaw to pluck a few weeds. Litigation is expensive and time-consuming. It may be warranted and often the only solution where a resident is continually unrepentant, unresponsive and refuses to comply. But where a resident demonstrates a genuine willingness to work with the condo to fix the problem, an honest and respectful consideration of the owner’s position may get you a cheaper and quicker resolution than battling it out in court. If there’s any lesson to be learned from the Amlani decision, its that acting reasonably will save you a lot of money and grief.