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The Divisional Court of Ontario recently considered a condo corporation’s application for judicial review of a CAT decision.   However, the court dismissed the application because the corporation did not exhaust its right of appeal under the Condo Act

Judicial review is a process where courts make sure that the decisions of administrative bodies (such as…

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.

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Continue Reading Oppression in condominiums: “Feeling of expectation” must be objectively reasonable

A Toronto condominium community recently endured a tenant from hell. In MTCC 1025 v. Hui, residents, security staff and contractors were subject to a tenant’s threatening and disturbing behaviour, including:

  • Threatening a security guard with a knife;
  • Exposing himself and performing lewd acts in the common elements of the condominium building;
  • Attempting to force his way into a resident’s car and a contractor’s van;
  • Defacing unit doors and nearby walls;
  • Setting up a chair and blocking the entrance of the building, not allowing residents to enter (so they had to enter via the loading dock), and the list goes on.

The owner of the unit cooperated with the corporation from the outset. She delivered an eviction notice to the tenant and applied to the Landlord and Tenant Board for an urgent hearing, but the request for an expedited hearing was denied. The corporation brought an application for a compliance order against the tenant and owner.  At some point in the interim, the tenant was arrested and therefore no longer on site.

The court had no trouble granting a compliance order against the tenant for breaching section 117 of the Condo Act (which prohibits any dangerous activity that is likely to damage property or cause injury), the corporation’s declaration, rules and the Occupational Health and Safety Act when misconduct was levelled at staff.

But who was responsible for the corporation’s costs of the application?

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Continue Reading Cooperative unit owner pays the price for tenant’s outrageous conduct

In February 2021, the provincial Home Construction Regulation Authority (HCRA) became responsible for licensing and regulating home builders and sellers in Ontario. This was previously overseen by the Tarion Warranty Corporation (TARION).

The HCRA sets standards for competence and conduct while TARION continues to oversee warranty claims and complaints relating to new construction.  HRCA also…

We recently blogged about the current framework governing electronic signatures in Ontario (here). In a May 2021 case, the Divisional Court recognized text messages as a valid digital signature in a dispute between parties over a debt for leasehold improvements and the application of the Limitation Act, 2002.

Civil claims in Ontario must generally be started within two years of an “act or omission” giving right to the claim. The “limitations clock” starts to run on the date of the act or omission but can be extended in certain circumstances such as where a debtor acknowledges the debt to the creditor. The acknowledgment must be in writing and signed. The clock starts to run on the date of the acknowledgment.

In this case, there was a dispute over money owing to a contractor. Some invoices were paid but the last was partially outstanding. The parties exchanged text messages on June 2, 2016, where the debtor recognized the debt but refused to make payment until the project was completed to his satisfaction. The contractor brought a claim in the Small Claims Court for the balance owing and successfully argued that the text exchange was an acknowledgment of debt under s.13 the Limitation Act, 2002 and the claim was brought in time of the two-year limitation period (with the clock starting from the date of that text exchange).  The text exchange was within 2 years of the start of the claim.  The last payment made to the contractor was outside of 2 years of the start of the claim.

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Continue Reading E-signatures continued – Are text messages valid digital signatures?

The Superior Court of Justice recently raised an interesting question: can a condominium corporation foreclose on a unit to enforce its lien? While the Court didn’t answer the question, raising the question seemingly casts doubt on what a corporation can or can’t do to enforce a lien. Fortunately, we don’t have to wait for another case to get our answer: earlier decisions have made it clear that a condominium lien can be enforced through foreclosure.

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Continue Reading “Like a Mortgagee”: no uncertainty with condo liens and foreclosure/power of sale

When condo owners get hit with a lien, things typically go one of two ways: the owner pays the lien and everyone moves on with their life or the owner disputes the lien and a contentious battle ensues. A registered lien secures “reasonable legal costs and reasonable expenses incurred by the corporation to collect the lien” per section 85 of the Condo Act. Corporations often turn to their lawyers in lien battles and recoverable legal costs and expenses begin to mount.   One owner recently learned that lesson the hard way.

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Continue Reading Lien challenges: applying pressure doesn’t stop the bleeding

Condo boards and owners should be familiar with the concept of “common elements” and “units”. While there is no “one size fits all” approach to distinguishing the two, in simplified terms, anything that is not part of a “unit” is a “common element”. Diligent boards and owners should review the condo’s Declaration  for inclusions/ exclusions to and from the unit,  maintenance and repair obligations and Schedule “C” to determine unit boundaries; the condo’s registered plan drawings will lay that out in an illustrated form. Understanding these points is critically important.

In Landont Ltd. v. Frontenac Condominium Corp. No. 11, Landont Ltd. used their unit to operate a commercial parking lot. Landont and FCC 11 agreed that the concrete slab below the lot was a common element, but this case turned on whether a waterproofing membrane installed on the upper surface of the concrete slab was part of the common elements. The distinction fundamentally determined which party was responsible for maintaining and repairing the membrane.

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Continue Reading Unit and common element boundaries: Not always as “concrete” as they seem

The Condo Authority Tribunal’s decision in Rahman v. PSCC 779 is the first of its kind under the Tribunal’s expanded jurisdiction.  The case provides a strong warning against condos seeking to unilaterally impose costs against unit owners.

The Tribunal held that it had authority to hear this matter – a dispute concerning parking and indemnification…