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

Lozano v. TSCC 1765 was one of our Top 10 cases for 2020 because it reaffirmed that a higher negligence threshold is not applicable for s.105 chargebacks. You can read a summary of the case in our newsletter, Condo Alert!, Winter 2020

 Lozano’s insurer (who paid the insurance deductible) appealed the 2020 decision, asking the Divisional Court to re-write s.105 of the Condo Act and adopt a “robust” negligence test for liability under that section. The court rejected this proposal and dismissed the appeal a few days ago. 


Continue Reading Never mind the ballcocks, here’s the shut-off valve 

Unit owners occasionally request records about past and current litigation.  This can happen in the context of a condo’s AGM, a debate with management or a seemingly benign records request.  When is it okay to provide such records?

The CAT recently clarified that when litigation is settled or fully concluded and the record is not solicitor-client/settlement privileged, a record may be examined and produced:  the fact that the record relates to litigation is not a reason to refuse access.


Continue Reading Condo litigation records may be produced after litigation ends

Approximately two months have passed since the CAT’s jurisdiction expanded beyond condo record requests to include disputes regarding, pets, parking, vehicles and storage and chargebacks related to such issues.  However, the CAT has yet to release a decision dealing with these new topics. It may  take some time for cases involving expanded jurisdiction issues to wind through the CAT’s online dispute resolution system.  In the meanwhile, enjoy Part 2 of our deep dive into record disputes (Part 1, here).

Continue Reading Key take-aways from the CAT’s record request decisions – Part 2

There are limited circumstances where directors of condominium corporations can be personally liable for oppressive conduct under Condominium Act, 1998.

In a recent Ontario Superior Court of Justice decision, the declarant (also a unit owner at a vacant land condominium corporation) sued the condominium corporation and the individual directors.  The allegations of oppressive conduct by the condo and directors included exaggerating construction deficiencies and not repairing them at the same time, implementing rules that impeded the declarant’s ability to rent units and adding these issues to status certificates (among other allegations). The condo corporation brought a motion to throw out the claim against the individual directors under the rules of the court.

The court threw out the claim against the individual directors because:

  • the declarant did not provide sufficient particulars as to what each individual director is alleged to have done, as differentiated from the condo corporation’s alleged conduct; and
  • the alleged conduct of the individual directors did not result in any personal benefit or increase their control in any way; and
  • there was no reasonable basis in the claim for the court to decide whether the alleged oppression could be rectified by a monetary order against the directors personally.


Continue Reading No oppression claim against directors personally unless a director instigates the conduct

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