Check out our latest issue of our newsletter Condo Alert! – V8.I4 Autumn 2020 – for case commentary on:
- upholding COVID policies
- CAT summaries
- oppression applications
Amlani and indemnity provisions – All Bark, no bite? Not quite
When Amlani v. YCC 473 was released at the start of the year, it was the immediate frontrunner for “2020 Condo Case of the Year”. YCC 473 appealed and even in a year of fascinating cases, the Amlani decision still holds its seat at the top of that mountain.
The initial Amlani decision dealt with a common situation. In a nutshell, the board received complaints about Mr. Amlani’s smoking so they instructed their lawyers to deal with the matter. YCC 473 relied upon the indemnity provision in its declaration to charge back its legal expenses to Mr. Amlani and subsequently register a lien against Mr. Amlani’s unit to collect its legal fees.
The initial judge held that YCC 473 could not rely upon it’s the indemnity provision to charge back its legal costs for two key reasons:
1. Mr. Amlani did not commit “an act or omission to or with respect to the common elements and/or all other units” as required by the indemnity provision; and
2. YCC 473’s interpretation of its indemnity provision contravened section 134 (5) of the Condo Act as the costs it claimed related to compliance and enforcement costs without being embodied in a court order.
Section 134 (5) of the Condo Act allows a corporation to add its enforcement costs to an owner’s common expenses if a court awards the corporation its damages or costs in bringing a compliance application. Section 134(5) does not itself authorize a lien for legal fees incurred prior to the compliance application: to register a valid lien for legal fees, the court must first award these fees. However, many condominiums rely on their indemnity provisions as a “catch-all” provision to permit a corporation to add certain costs to an owner’s ledger resulting from their acts or omissions, often without requiring a court order.
The Amlani decision sparked considerable debate amongst condominium lawyers. Some of our esteemed peers argue that you cannot rely on an indemnity provision to charge back legal compliance and enforcement costs without first obtaining a court order. Others took the position that Amlani was a fact-specific decision that turned on the specific wording of YCC 473’s indemnity provision; they argued the Amlani decision does not stand for the proposition that a court order must be obtained before any pre-litigation legal compliance and enforcement costs can be charged back.
The Divisional Court recently set the record straight: condos cannot rely on their indemnity provisions to enable a lien to be registered against a unit to charge back compliance and enforcement costs without a court order. This does not mean a condo can’t recover its pre-litigation compliance and enforcement costs – condos can seek these costs in an s. 134 (5) order but registering a lien for these costs before the order is obtained is improper.
Continue Reading Amlani and indemnity provisions – All Bark, no bite? Not quite
Section 92 charge-back checklist
In Beswick v. YRCC 1175, the court held that a condo should not have made exterior interlock and pavement repairs to townhouse exclusive-use common elements without first providing reasonable notice of the expected cost of such proposed repairs to the townhouse unit owners.
In that case, townhouse unit owners were obligated to maintain and
Always Act Reasonably – the Amlani Decision and a Lesson from the Court
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.
Continue Reading Always Act Reasonably – the Amlani Decision and a Lesson from the Court
CAT’s out of the bag: The Tribunal’s first year
The Condominium Authority Tribunal, Ontario’s first and only online adjudication body, celebrated its first anniversary on November 1, 2018.
Envisioned as a one-stop shop of expert mediators and adjudicators helping condo boards and unit owners resolve condo disputes across Ontario, all entirely online, the CAT began accepting cases in November 2017. CAT’s initial jurisdiction is presently limited to condo records, which isn’t sexy but is important to unit owners struggling to access important records from their condo corporation. It’s also important for managers and boards to have clarity as to when records should not be produced, to protect the corporation and its owners.
From May to August 2018, the CAT released its first 8 decisions, covering a variety of scenarios. We will summarize those first 8 cases then offer a few lessons and predictions.
Continue Reading CAT’s out of the bag: The Tribunal’s first year
Lien registration is lawyers’ work
A recent small claims court decision signals the end of condo management firms preparing, registering and discharging condominium liens in-house.
Page v. Maple Ridge Community Management Ltd., 2017 CanLII 21772 began when a unit owner at YCC 34 failed to pay a special assessment in time. YCC 34’s management firm, Maple Ridge, used its in-house paralegal employee to issue Ms. Page a Notice of Lien (Form 14) and, when no payment was made within the 10-day notice period, to register a certificate of lien against the unit.
Ms. Page discovered that the paralegal employee was administratively suspended by the Law Society at the time the lien was registered, presumably for failing to pay annual dues or file obligatory paperwork. Ms. Page paid “under protest” the special assessment arrears of $767 and the management firm’s demanded fees of $141 to issue the Form 14 notice and $678 to prepare, register and discharge the certificate of lien. The management firm’s total charges for the lien work were $819.
Continue Reading Lien registration is lawyers’ work
Top 10 condo law cases of 2016
Happy 2017! Here’s our recap of some of the most notable condo law cases from the year gone by.
#10 – Cheung v. York Region CC 759, 2016 ONSC 4236
Many condominiums have insufficient parking for occupants and guests, requiring the board to allocate available common element parking spaces in a way that balances various competing interests and respects local zoning bylaws. In this case, the condo corporation enacted a bylaw which leased 4 common element parking spots to each unit owner to distribute parking more equitably than “first come, first served.” The bylaw was challenged by a unit owner whose tenant operated a popular restaurant requiring much more parking than was allocated. The owner argued that the bylaw was unlawful and oppressive but the court disagreed, upheld the bylaw as valid and found that the unit owner’s expectation to monopolize most or all of the parking for the restaurant was arguably oppressive.
Oppression remedy cases – 2015 in review
Section 135 of the Condominium Act, 1998 (the “Act”) gives unit owners, condo corporations, declarants and mortgagees the right to bring applications against one another for relief against conduct that is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant.
Where a court finds the existence of oppressive conduct, it may make any order it deems proper, including an order prohibiting the conduct and an order requiring payment of compensation.
Continue Reading Oppression remedy cases – 2015 in review
Ignoring bullying and harassment not an option for condo boards
April 13, 2016 was International Day against Bullying, Discrimination, Homophobia, Transphobia, and Transmisogyny, better known as the “International Day of Pink.” A recent Ontario Human Rights Tribunal decision demonstrates that condo boards must apply the Day of Pink concepts every day of the year.
In Welykyi v. Rouge Valley Co-operative Homes Inc., the Tribunal chastised a co-operative housing corporation for not responding seriously, swiftly or effectively to a series of nasty, discriminatory and offensive messages against specific residents distributed by unknown perpetrators. The 10 affected residents each made a human rights complaint to the Tribunal that were heard together and addressed in a single decision.
Continue Reading Ignoring bullying and harassment not an option for condo boards
2015 round-up of court and tribunal decisions
Those who have followed our blog for a while have come to expect our “Top 10 cases of the year” to be posted in late December. This is a natural time to reflect on the year gone by, spot trends, make predictions and look forward to the next year’s challenges.
This year, we vary our year-end tradition by posting a single round-up of all the condo-related cases we tweeted about since January 1 and will publish our “Top 10” list following a special educational luncheon hosted by the Association of Condominium Managers of Ontario on January 22, 2016. There, GMA’s Bob Gardiner will moderate a panel of legal experts presenting their top 10 picks and the important lessons they hold.
The job of selecting the top 10 will not be easy. This year’s crop includes more than 40 cases, of which the following are among the most notable. Admittedly, this list is imperfect, as it excludes unreported cases and is Ontario-biased in that it includes very few cases decided by courts outside Ontario.
Ladies and gentlemen, here are your contenders for Top 10 Condo Law Cases of 2015:
Continue Reading 2015 round-up of court and tribunal decisions