The opening paragraphs to Berman v. York Condominium Corp. No. 99 could not have set up the starting point for an oppression application any better:
The oppression remedy starts by someone having an expectation….But to be actionable at law, a person’s feeling of expectation must also be objectively reasonable. In addition, even if a reasonable expectation is not met, the applicant also needs to show that he has been oppressed, unfairly prejudiced, or unfairly disregarded.
In Berman, the owner complained the condo acted oppressively since it failed to replace his windows when he wanted them replaced. With no evidence that his windows failed or required replacement, the court found he had no reasonable expectation to have his windows replaced earlier than they were. The only reasonable expectation he had was that the board of directors would manage the condominium corporation honestly, in good faith, and with due diligence required by the statutory standard of care in s. 37 (1) of the Condo Act.
The element of “reasonable expectations” is not new to oppression claims but we continue to see owners bring oppression applications for delayed repairs, refusals to permit special use of the common elements and general disagreements with the board. In fairness to these owners, their perception of oppression is usually genuine since they are the ones personally affected. But this is not the threshold for oppression: oppression applications protect owners’ reasonable expectations. Determining what is “reasonable” depends on the context of each case. An oppression remedy protects legitimate expectations and not individual wish lists.
Owners commonly point the finger at the board in oppression applications and the board’s actions and conduct are called into question. However, oppression applications focus on the reasonableness of what transpired. In that regard, courts give a condo board an extreme amount of deference. After all, it is the elected board of directors that make the day-to-day and high-level decisions on behalf of the condo – owners cannot reasonably expect that that their condo boards will grant their every request. A board’s decisions are generally above scrutiny if the directors act honestly, in good faith and with due diligence. The duty of the board is to the best interests of the condominium as a whole.
Proving oppression is a tall order and an objective exercise. Not every perceived shortcoming gives rise to oppression, prejudice or unfair disregard.