We saw “condo meeting” cases before the court in 2021, seeking procedural directions or injunctions to stop them.

For each case that made it to a judge, more cases were negotiated between condo lawyers and owner lawyers, at a cost to both parties. The negotiations often aimed for meeting transparency from notice through vote tabulation.

The Condo Act is silent on many issues management, boards and owners face in navigating meeting minefields.  We turn to rules of order, past practice and common sense.  Here are some of the common questions and issues we have recently encountered.

Continue Reading Condo meeting minefields

A recent court decision confirmed that disputes between neighbours should not be adjudicated by the courts as the first step (unless there is injury or danger to others or property). Parties should instead pursue mediation and arbitration. We have written on the proper forum for condo disputes before (see here and here) but this case demonstrates that adjudicated proceedings won’t always resolve squabbles between neighbours.

Neighbouring owners (let’s call them, A and B) have a history of alleged name calling, banging on a common wall, harassment and racist taunts. The condo corporation took neighbour B’s side despite “she said/she said” allegations and started an application for order requiring neighbour A to sell their unit or to comply with the rules. Neighbour A moved to stay the application pending mediation and arbitration.

Continue Reading Condo neighbour disputes don’t belong in the courts

A Toronto condominium is making headlines after levying a $14 million special assessment. The condo’s 321 units were given 15 days to pay between $30,000 to $42,500. Many residents are seniors who see their units as their retirement home but the condo promised it wouldn’t enforce its liens before April…how generous.

The building needs major structural repairs and its finances are shocking to say the least. Last spring, the condo had a $5,000 operating fund and a whopping $1.75 in its reserve fund. The condo reportedly owes “as much as $9 million in debt” with $8 million owed to private lenders and another $1 million owed to the City of Toronto for unpaid utility charges – the condo pays $80,000 a month on interest alone.

This condo’s dysfunction predates the $14 million special assessment – it is one of the few condos that had a court-appointed administrator. Evidently this condo’s problems could not be solved even with an administrator. This is story should serve as a both a warning and a rude awakening for condos across the province: condominium operations are no joke.

Continue Reading $14M Special Assessments or: How I learned to stop worrying and take condo governance seriously

The latest issue of our newsletter, Condo Alert!, Winter 2021, features our Top 10 condo cases of 2021.  This past year saw a trend in condo decisions reinforcing the importance of mandatory mediation, more discretionary costs and in oppression applications.

This issue of Condo Alert! marks our 10th volume of GMA’s newsletter, with the first quarterly (ish) issue published Autumn 2008 (and, in case you are wondering what was of interest in August 2008, we covered:   trade-marking your condo’s name, the new Human Rights Tribunal processes, municipal fees on multi-unit building garbage collection and new clothesline regulations).

December 13 marked our 100th post since this blog began!!! Your continued interest and interaction means so much to us!  Welcome to all our new subscribers this year!  And thanks to our longtime readers.

We hope 2022 brings peace, stability and health.  Feel free to send your nuisances and annoyances in the CAT’s direction come Sunday.

All the best in the new year,

Andrea

The court recently  disallowed compliance costs claimed by a condo corporation because it did not first mediate compliance issues under section 132(4) of the Condominium Act, 1998 (the “Act”).

Mr. Friend is a unit owner who had a long-standing dispute with the board of directors and management dating back to 2011. The condo brought successful compliance applications against Mr. Friend in 2013 and 2019 because he didn’t follow the condo’s governing documents, interfered with contractors and management, and engaged in a campaign of harassment against the board and the condo’s employees. In 2020, the court granted a final injunction prohibiting Mr. Friend from communicating with the condo’s board and employees, except under limited exceptions. Full indemnity costs were awarded against Mr. Friend and he unsuccessfully appealed the 2020 decision, resulting in a further costs award. The condo registered liens to secure the cost awards and other common expense arrears.

The matter was before the court again in 2021 to determine the amounts due under the liens.

Continue Reading Mandatory condo mediation continued – Compliance legal costs not recoverable without exhausting mediation

The CAO is investigating if legal costs should be awarded in CAT cases.  The effect of CAT’s Costs Rule No. 45 has generally resulted in no costs awards in records cases except in exceptional circumstances.  Condos should take advantage of this opportunity to convince CAO to award legal costs to the successful party, for the following reasons.

CAT’s jurisdiction was expanded beyond records cases to include disputes regarding pets, vehicles, parking and storage cases as of October 2020, with some mixed results applicable to recovery of legal fees in some CAT cases.  CAT will also assume jurisdiction for noise, odours, smoke, vapour, light or vibration disputes as of January 2022.

Compared to owner-initiated records cases, nuisance cases enforced by Corporations would often involve many kinds of legal concepts.  Condos and their lawyers have already developed systems to process various types of scenarios, having careful regard to previous court precedents.

After a manager’s initial efforts have failed to persuade an offending occupant to cease creating a nuisance, a condo’s  lawyer issues a demand compliance letter to the offender and often educates boards and managers how to assemble conclusive evidence.  Over 90% of rules breaches are resolved (to the relief of neighbours), usually immediately upon receipt of the lawyer’s letter, or through a negotiating process.  If lawyers will no longer be encouraged to warn owners and occupants of their obligation to bear legal fees in cases of proven nuisances, then CAT can expect an avalanche of cases.

Continue Reading CAT should award legal fees

A recent CAT decision about smoking rules contained the following in its introduction:

“ … this Tribunal has identified concerns with the use of the term “grandfathering” generally, as its origins are problematic, notwithstanding its long-standing social usage. The Tribunal believes that the term “grandfathering” is better understood as creating “legacy” provisions. However, the term “grandfathering” will still be used herein, as the parties used it, and the Respondent’s Rules themselves refer to the term that way.”

Which led us to educate ourselves:  https://en.wikipedia.org/wiki/Grandfather_clause

Which requires us to do better –  let’s usher in “legacy” provisions!

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 CAT) are fair, reasonable, and lawful. This process is different from an appeal, where a higher court is asked to review the decision of a lower court due to a mistake. There are different requirements governing judicial review and appeals and the power of the court and the role of parties differ.

The underlying dispute in this case involved a unit owner’s use of a designated accessible parking space located in a lot marked “Visitor Parking Only” and whether the corporation was entitled to charge the owner for the costs of enforcing the parking issue. The CAT decided that it had jurisdiction to hear the parking matter, found in favour of the owner regarding the use of the accessible parking spot and ordered the corporation to pay costs and damages (after the CAT applied Amlani and disallowed the corporation’s enforcement costs).

The corporation’s application for judicial review to the Divisional Court argued that the CAT exceeded its jurisdiction, made several errors of law and breached procedural fairness and natural justice. But the Divisional Court dismissed the application because:

  1. The corporation failed to exhaust its right of appeal under Section 1.46(2) of the Condo Act, which provides that a party to a CAT proceeding has a right to appeal to the Divisional Court on a question of law (i.e., errors in the CAT member’s application of the law). The Divisional Court recognized that it was the Legislature’s intention that CAT decisions be appealed and not submitted for judicial review; and
  2. There were no exceptional circumstances in this case warranting the Divisional Court’s interference by judicial review. Judicial review is a discretionary remedy which is not available where there is adequate alternative remedy, such as the right of appeal built right into the Condo Act. The Divisional Court also noted that the core issues raised by the corporation could have been raised in an appeal.

The corporation in this case must now bring a motion to extend time to properly bring its appeal under the Condo Act (if the unit owner doesn’t consent) since the time to do so expired while the corporation pursued judicial review.

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.

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

Our Autumn 2021 issue of Condo Alert! reports on the continuing prevalence of the Ontario Superior Court to follow the mandate set by higher courts that matters which are subject to mediation and arbitration must proceed by that route (even when undefended) and summarizes January 2022 changes to the Act and CAT.

We hope you had a nice summer – thanks for reading!