Owing to a very busy and ice-storm-filled holiday season and an even busier start to 2014 , we have been late in releasing our annual top 10 condo law cases of the year gone by. Mea culpa!
In response to popular demand, here are our picks, presented in no particular order. Almost all of them have at least one lesson that can and should be picked up by the ongoing Condo Act Review being undertaken by the Ontario Government. A new condo act that deals with some of the persistent problems we see in our daily practice and in some of the cases cited below would be welcomed.
10. Owners of Strata Plan LMS 2768 v. Jordison, 2013 BCCA 484
This is British Columbia’s first court-ordered sale of an owner’s unit for bad behaviour. While this concept is hardly new in Ontario, the reasons of the BC Court of Appeal are noteworthy for the eloquent and compelling argument shattering the old adage that “a man’s home is his castle” if he lives in a condominium. Let the word go forth that condos are no longer castles.
9. PCC 98 v. Pereira, 2013 ONSC 7340
Although our courts have repeatedly ruled that forced sale of units is a remedy of last resort, too many condos still make the attempt too early. In this compliance application, the court was satisfied that the unit owner’s bad behaviours breached the “dangerous activities” provision in s. 117 of the Condo Act. But after noting that the owner ultimately complied with many of the complaints and since the behaviour fell short of that in comparable cases, the court found that the extraordinary remedy of a forced sale was not yet warranted, and gave a simple order for compliance with the rules and a warning that more severe remedies might be given for future bad behaviour. Condo recovered the bulk of its legal costs of over $37K.
8. GSCC 50 v. GSCC 46, 2013 ONSC 122
In this shared facilities dispute over allocation of utilities costs, one of the two feuding condos skipped mediation and arbitration and started a lawsuit to recover its overpayment of the utilities costs, arguing that the non-paying condo was unjustly enriched. The court stayed that lawsuit pending completion of mediation and arbitration which is mandatory as per s.132 of the Condo Act and cannot be bypassed even if both sides agreed, per s. 176. Court also pointed out that an arbitrator has the necessary power under s. 31 of the Arbitration Act, 1991 to decide a case like this and to grant the remedies that the plaintiff condo was requesting in its lawsuit. Moral: Don’t skip mediation and arbitration to start your shared facilities litigation.
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