New to the Condominium Way of Life: Part 4

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Our fourth Q-and-A style blog post has arrived. This time we discuss how you can navigate having a noisy neighbour, a neighbour that has complained about you being too noisy, how you can build a case for a complaint, and what you can do if you disagree with a ruling of a condominium.

Noise is one of the most common types of nuisances in condominiums, especially in residential condominiums constructed with shared walls, like apartments or townhouses. While owners have a right to use and enjoy their units, there is no absolute right to silence. Living in close quarters means that owners must expect some level of noise from their neighbours. The residents are entitled to make ordinary household noises without fear of complaints against them or enforcement steps being taken by their condominiums. The courts have suggested that in most cases ordinarily household noises will include the sound of people walking in the unit above, children playing, doors and cabinets closing, chairs moving away from tables, and vacuuming.   

Q. What can I do if another unit owner is being noisy and disturbing me?

A. Ask yourself the following questions: Is the source considered an ordinary household noise? Is the sound at a reasonable level? Is the noise occuring during the day?

If the answer to these questions is yes, there is likely not much the condominium can do to assist you as the other residents have the right to use their units. You could purchase noise reducing earplugs or a white noise machine to cover the noises. You could also speak with your neighbour to see if you can work out a solution, such as the owner agreeing not to vacuum at a certain time of day when you might be sleeping.

If the noise is unreasonably loud or very frequent, or occurring late at night, and your neighbour is not willing to reduce the noise or work with you to find a solution, you can reach out to the condominium for assistance. The condominium will likely ask for details about the noise, such as the date and time of occurrences and a description of the type of noise (i.e. loud music, banging or hammering). The condominium may also ask you to provide a recording from your phone or other device if the noise is the type that is easily recorded. This information will help the condominium investigate your complaint and address it with the other resident. In some cases, the condominium may have an acoustical engineer or other professional investigate the noise and provide a report of the sources.

You might have success calling by-law officers to report the noise. Keep in mind that the by-law officers will only ticket the other resident if they can hear noise that violates the municipal by-law at the time of their attendance. Often by the time the officers arrive the noise has subsided. Also, in some parts of the province by-law officers will not attend condominiums in response to noise complaints.

Q. What can I do if another unit owner has complained about me?

A. Consider if you are making too much noise in your unit and take steps to reduce the noise. Often installing area rugs or flooring with high quality underpad can work for a variety of noise issues. You can purchase inexpensive felt pads to reduce noise from banging cabinets, furniture moving across the floor, and closing doors. Keep noise from electronics, like televisions and computers, to a reasonable level or use a headset. Ask your kids to stop screaming or not jump off furniture, especially early in the morning when some people might still be sleeping. If you have people over for dinner or a party, remind them of the rules about noise and their obligation to keep the noise down. Whatever you do, do not ignore a letter from the condominium alleging any sort of rule violation, including excessive noise, as it could have significant consequences.

If you believe the owner complaining about you is unreasonable or there are special circumstances causing the noise, such as a renovation project, you can try speaking with them to see if there are certain noises or times of day that they find most irritating and work with them to find a solution. You can keep your own record of times when you are home and your activities to refute the complaints if you feel the other owner is making them up or exaggerating about the noise.  If you feel the noise is caused by another unit or from the common elements, such as the elevator, garbage chute, or HVAC equipment, ask the condominium to investigate to rule out deficiencies with these items.   

Q. What can I do if the condo has ruled against me in a complaint but I think the decision is unreasonable?

A. If you feel the condominium is not addressing noise from another unit that disturbs you, you could gather your own evidence to make a case for the condominium. For example, have witnesses give you statements of what they hear and feel when they visit your unit. You could hire an expert to provide a report of their findings. You could record the noise with your phone or other device. If the condominium still refuses to address the noise, you should speak with a lawyer about your options for requiring the other owners and the condominium to comply with the rules regarding noise.

If the condominium takes steps to enforce against you and you feel you are not causing excessive noise, you should speak with a lawyer about your options for defending yourself. For example, you might want to request mediation to try to resolve the matter without court as mediation tends to be much quicker and less costly than court.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post!

New to the Condominium Way of Life: Part 3

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Here is our third Q-and-A style blog post! In this post we discuss the different documents that condominiums have to describe the rights and obligations of unit owners and occupiers, as well as the condominium board of directors – the declaration, by-laws, and rules.

Q. Can you explain the difference between a declaration, by-law, and rules?

A. The condominium’s declaration is often called its “constitution” because it (along with the description) creates the condominium. It is like a condominium’s articles of incorporation. It sets out basic information about the condominium, like the number and type of units, the type of condominium, conditions and restrictions on use of the units, the proportions of ownership and contributions toward common expenses, the unit boundaries, and maintenance and repair obligations. The description is often called the “survey” or “map”. It shows the boundaries of the units, common elements, and exclusive use common elements.  Condominiums must have a declaration and description and both can be amended.

The condominium’s by-laws typically address board governance and other matters related to how the condominium operates. For example, the by-laws will describe the qualifications for directors, how meetings of the owners are to be conducted, and procedures for conducting mediations. One of the most important by-laws is the standard unit by-law. The standard unit by-law describes the condominium’s obligations for insurance on the units. Any item that is not part of the standard unit as defined in the by-law will be considered an improvement that the owner must insure. Every owner should review their standard unit by-law and provide a copy to their own insurer to make sure they have adequate coverage in place. Other by-laws address special situations, like granting easements or rights-of-way to a neighbour, borrowing funds for a repair project, or paying remuneration to the directors. Most condominiums have at least one by-law and many have several, but there is no requirement to have one at all. By-laws can also be amended or repealed (deleted).

The condominium’s rules tend to cover more mundane issues, like the requirements for garbage disposal (i.e. type of bags or containers, garbage days, permitted times for using garbage chutes). The rules are much easier to change than the declaration or by-laws, so they tend to contain subject matter that changes regularly, like the process to obtain a parking permit from the manager or parking control company. There is no requirement to have rules, but most condominiums have them.   

It is important to note that there is a hierarchy among the documents. The declaration is at the top. The by-laws and rules must be consistent with the declaration to be enforceable. For example, a condominium could not pass a rule that permits short-term rentals if the declaration prohibits them. Next in the hierarchy is the by-law, or by-laws. Finally, the rules are at the bottom of the hierarchy. The rules must be consistent with the declaration and by-laws to be enforceable.  

Q. How strict can each of the documents be?

A. The Condominium Act, 1998, describes the permitted and mandatory subjects for each type of document. There are several different parts of the Act and its regulations that describe the subject matters, but the most commonly used sections are:

  1. Section 7 for declarations;
  2. Sections 56 & 57 for by-laws; and
  3. Section 58 for rules.  

It is important for the condominium to use the proper document for the new condition or restriction or it could be unenforceable. For example, a by-law that attempts to describe the unit boundaries will be unenforceable as the Act requires the unit boundaries to be described in the declaration and description.

The Act also requires by-laws and rules to be reasonable. The declaration has no such requirement. What is reasonable? The Act does not say. Fortunately, there are several reported cases that provide some guidance in determining if a proposed new by-law or rule would be reasonable.

Q. What can I do if I, as a unit owner, think that a rule, by-law, or provision in a declaration is too strict/unreasonable?

A. All amendments to the declaration and by-laws must start with the board of directors. As such, if an owner has concerns about a provision being unsuitable for the community the owner should reach out to the board to discuss possible amendments. If the board refuses to take steps to change the document, an owner may want to apply to challenge the validity of the document. There are a few different ways this can be done, including the Superior Court of Justice, mediation/arbitration, or the Condominium Authority Tribunal.

For rules, owners may requisition a meeting to amend or repeal rules according to subsection 58(5) of the Act, which states:

Amendment by Owners

(5) The Owners may amend or repeal a rule at a meeting of owners duly called for that purpose.

Note subsection 58(5) of the Act does not permit owners to create new rules.

Q. How do I, as a unit owner, go about reviewing a condo’s declaration, by-laws, and rules?

A. You should have obtained copies of the declaration, by-laws, and rules when you purchased your unit. If not, you can obtain copies from the condominium. We normally suggest owners review their documents in the following order:

  1. Rules;
  2. Declaration; and
  3. By-laws.

The reason for this recommendation is that the rules tend to be the easiest to read and will often highlight the key restrictions or conditions for using the property. Reading the rules first gives owners an idea of what to look for when reviewing the declaration. Also, the declaration tends to be more complex and lengthier, which can frustrate owners and make them less likely to continue reading the other documents. The by-laws are important for directors, or candidates for the board, to review as they describe how the board conducts business. For owners, most of the by-laws will be irrelevant to their daily living.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post!

New to the Condominium Way of Life: Part 2

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This is our second Q-and-A-style blog post for those who may be new to the condominium way of life or are contemplating moving into one.

In this post we focus on how and where issues that arise within condominiums get resolved with a focus on the Condominium Authority Tribunal and the mediation and arbitration processes required by the Condominium Act, 1998.

Q. What is the CAT?

A. The CAT is the Condominium Authority Tribunal. The CAT is a tribunal that has been created to hear certain types of condominium disputes involving owners and condominiums. A purchaser of a unit or a condominium manager may also apply to the CAT with respect to certain disputes in rare situations.  

Q. When does the CAT get involved?

A. The CAT can only become involved in disputes if it has jurisdiction in the area. The CAT’s jurisdiction is described in a regulation made under the Act and currently includes:

  1. Record disputes related to a request made by an owner or purchaser of a unit to examine records or obtain copies of them, including disputes over the applicable fees for examining the record or obtaining copies of them, the condominium’s reasons for refusing the record, and the penalty for the condominium’s improper refusal.
  1. Compliance disputes about the declaration, by-laws or rules related to any of the following:
    1. Pets or animals
    2. Vehicles
    3. Parking and storage
    4. Indemnification claims for costs related to (a) to (c).

The CAT does not have jurisdiction over a dispute, even if it fits within the list above, if it also relates to section 117 of the Act (an activity or condition that is likely to cause damage to the property or injury to persons), a section 98 agreement (where an owner makes changes to the common elements), or an agreement under s.24.6(3) of O.Reg. 48/01 (where an owner installs an electric vehicle charging station on the common elements).

Q. What are the other types of available dispute resolution processes for condo disputes?

A. If the CAT does not have jurisdiction over a dispute, it does not mean the parties should run off to court. The Condominium Act, 1998, requires mediation and arbitration of certain types of condominium disputes about agreements between:

  1. A declarant and a condominium, including a dispute about a first-year budget deficit under section 75 or a budget statement under subsect 72(6),
  2. Two or more condominiums, such as disputes about the use of shared facilities or the cost sharing obligations for the shared facilities,
  3. A condominium and a unit owner about a section 98 agreement (changes to common elements made by owners), and
  4. A condominium and its condominium manager.

In addition, every declaration is deemed to contain a provision that requires condominiums and owners to submit disagreements about the declaration, by-laws or rules to mediation and arbitration as well. This has been broadly interpreted to cover disagreements about the validity, interpretation, application, or non-application of the declaration, by-laws and rules, as well as damages claimed by an owner or the condominium related to the disagreement.

The mediation and arbitration provision does not apply to disputes involving tenants but a condominium and owner could agree to attempt to resolve the dispute without court by voluntarily using mediation and arbitration.

Some “pure” enforcement issues may proceed to court without mediation or arbitration as there is no disagreement in these cases. The owner simply refuses to comply with their obligations or ignores requests to comply.

There are many situations where court is the most appropriate option, such as a power of sale process to enforce a lien to collect arrears owed by a unit owner. It is important for condominiums and owners to seek legal advice before choosing the forum for their dispute as the improper forum could cause delays and additional costs, and in some cases, act as a bar against proceedings in the proper forum.

Have a question you think new owners need to know? Send it to us and you may see it in a future post.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post!

Condominium Boards: Reviewing Your By-Laws is Vital to Running Your Condominium Effectively

Condominiums have registered by-law(s) setting out important corporate governance matters, including:

  1. Directors and officers: elections and appointment, qualifications, length of terms of office, the number of directors and officers, etc.
  2. Board meetings: quorum, voting, etc.
  3. Borrowing money for the corporation
  4. Assessing and collecting common expenses
  5. Standard unit definitions and insurance deductible responsibilities
  6. Maintenance and management of the property and corporation’s assets

and the list goes on.

But does the Board of Directors truly need to read these by-laws? YES!

By-laws are not documents of legal jargon that can be filed away – by-laws contain important information with an ongoing impact on the condominium. The by-laws must be followed in order to run the condominium effectively.

For example, how many directors are you required to have on your Board at any given time? If your by-law requires at least 5 directors, but you only have2, then your Board has not met its quorum requirements and cannot properly carry out Board business.

Understanding your by-laws is also important when sending information to owners, such as a Notice of Meeting. If you are electing directors at your next Annual General Meeting, you should always review your by-laws before stating in the Notice of Meeting the number of director positions up for election and the length of the terms of each director position. The by-laws may also prohibit nominations from the floor, which the owners should be told of in advance of the meeting.

During the COVID-19 pandemic, many condominiums have started holding electronic meetings, which may include electronic voting. As condominiums have been forced to adopt electronic methods, they are realizing these new methods can be highly effective and would like to continue in this manner after the pandemic ends.

Before passing a new by-law to permit electronic meetings and voting, we recommend reviewing your current by-law(s) to see if electronic meetings and voting are already permitted, and to ensure compliance with the by-law’s terms. If your current by-law(s) do not meet your condominium’s needs, they can be amended.

If reviewing your by-laws seems like a daunting task, we would be happy to assist you to ensure your condominium is operating as effectively, efficiently, and happily as possible.

New to the Condominium Way of Life?

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A Post for those New to the Condominium Way of Life

If you have never lived in a condominium (“condo”) before or have recently moved into one, you may find that you have some questions about matters such as your condo fees and the authorities that the condo’s board of director has. This is the first in a series of interview-style posts that seek to answer some of those questions so that you can navigate through the condo world (hopefully) without any issues. 

We hope that you find these Q and A style posts helpful!

Q: Where do my condo fees go? To whom do I pay them?

A: All payments for condo fees, including monthly fees, special assessments, or other charges, should be payable to the condo. Payments should not be payable to the superintendent, a director, officer, manager or the management company for the condo. The condo’s by-laws may describe the permitted payment options, such as post-dated cheques or electronic funds transfer (EFT) (which is sometimes called pre-authorized payments (PAP)). Most condos do not accept cash payments. The payments are usually delivered to the manager to deposit to the condo’s bank accounts.

Q: What are the condo fees used for?

A: The fees collected from owners are used to pay for the common expenses of the condo, such as maintenance and repairs, utilities (if individual meters are not installed for the units), and professional fees (i.e. for the condo manager, lawyer, engineer, and auditor). The condo’s declaration and by-laws should describe the common expenses in detail.

Q: What happens if I do not pay my condo fees?

A: A condo’s primary source of revenue is from monthly fee payments from its owners. If owners do not pay their share of the costs the condo may not have sufficient funds to pay its bills as they become due.

Q: What are the repercussions of not paying my condo fees?

A: If an owner does not pay their share of the common expense the condo may register a lien against their unit under section 85 of the Condominium Act, 1998. A lien is similar to a mortgage as it permits the condo, like a mortgage lender, to sell the unit if the owner defaults in their obligations. The condo is also entitled to collect interest on the arrears, collection costs (i.e. manager’s fees to send notices of arrears), and legal costs. The lien is not discharged until the condo receives payment in full.

Q: What if I can’t pay right now simply because of COVID?

A: While it is unfortunate that some owners may struggle to pay their condo fees because of the pandemic, it does not change the fact that they are legally required to pay according to the Condominium Act, 1998 and the Declaration. The courts have confirmed that an inability to pay condo fees is not a defence to an action by a condo trying to sell an owner’s unit. A condo may agree to a payment plan with an owner to give them more time to pay their condo fees, but this should not be expected by an owner as it is rarely an option. In short, the owner must find sufficient funds to pay the condo on time or the condo could sell their home.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post.

Have a question you think new owners need to know? Send it to us and you may see it in a future post.

Can You Arbitrate Oppression Claims Between Condos?

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Today’s post is about a recent Court of Appeal decision regarding arbitration in condominiums. The facts are straightforward. Two condominiums were parties to a cost-sharing agreement. There was a dispute about the amounts owing under the cost-sharing agreement. The parties participated in a mediation, which was unsuccessful. One of the condominiums sought to arbitrate the dispute. The other disagreed that aribtration was appropriate and commenced an application to the Superior Court of Justice seeking various relief, including an order that the conduct of the first condominium was oppressive, unfairly prejudicial or unfairly disregards the interests of the condominium pursuant to section 135 of the Condominium Act, 1998.

In response to the application, the other condominium brought a motion to stay the application in favour of arbitration. The motion judge found that the entire matter should proceed before the court, despite finding that some matters were within the jurisdiction of an arbitrator under section 132 of the Act. The decision was appealed.

For context, section 135 of the Condominium Act, 1998, permits certain parties to bring an application to the Superior Court of Justice if the conduct of another owner, the condominium, a declarant, or a mortgagee of a unit “is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant”. Previous court decisions have found that disputes involving oppression claims do not require mediation and arbitration under section 132 of the Act and the claim could proceed in the Superior Court according to section 135 of the Act.

The Court of Appeal reviewed a recent decision where the Supreme Court of Canada made it clear that a court did not have discretion to refuse to stay claims that were dealt with in an arbitration agreement. The Court of Appeal found that the dispute between the condominiums was clearly covered by the arbitration clause and the motion judge should have stayed that portion of the application.

With respect to the oppression claim, the Court of Appeal did not agree with the motion judge that the “pith and substance” of the dispute was oppression. The core of the dispute was the interpretation and application of the cost-sharing agreement and these sorts of disputes required mediation and arbitration under section 132 of the Act. The Court of Appeal cautioned courts reviewing these sorts of claims at paragraph 25:

In our view, courts should generally be cautious in their approach to oppression claims of the type asserted here. In particular, courts should be wary of allowing such claims to overtake, and potentially distort, the dispute resolution process that lies at the heart of the Condominium Act, 1998, a central aspect of which is a preference for arbitration over court proceedings. In other words, courts should be alert to the possibility that persons, who are party to an arbitration agreement, are attempting to avoid that process by “piggybacking” onto claims made against others: see e.g. MTCC No. 965 v. MTCC No. 1031 and No. 1056, 2014 ONSC 5362, at para. 18; see also TELUS, at paras. 76, 98.

The Court of Appeal stated that oppression claims may be determined by arbitrators if the claim relates to a dispute that falls within the terms of the arbitration clause (in the cost-sharing agreement) or section 132 of the Act. At paragraph 29:

The language of s.135(1) is permissive, not mandatory. It contemplates that, in certain circumstances, it may be necssary to have resort to the Superior Court of Justice to obtain relief. However, s.135(1) does not oust the jurisdiction of an arbitrator to consider the same relief, if that relief is part of the dispute in question that properly falls within the terms of the arbitration provision or within the terms of s.132. In this case, we have already noted the broad language of the arbitration clause. There is nothing, in our view, that would preclude an arbitrator, acting under the authority of that arbitration clause, from considering the alleged oppressive conduct advanced by the respondent in appeal, at least as it relates to the actions of TSCC1636.

The Court of Appeal allowed the appeal and granted a stay of the application. The two condominiums will need to participate in arbitration.

This is an interesting decision. I have had debates with other lawyers about mediation/arbitration for oppression claims. Many take the position that only the Superior Court of Justice has jurisdiction to hear these sorts of claims. It is nice to have a decision that brings some clarity to the issue.

The CAT Rules on Parking Dispute

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The Condominium Authority Tribunal (CAT) has released a few decisions related to parking issues in condominiums in the last six months. We summarized one of the previous decisions in post last month. The CAT has released another one this month that is interesting in what is says about rule enforcement, delays in enforcing by condominiums, and the available remedies to condominiums.

In a recent case the tenant was parking a motorcycle beside the parking space where he parked his car. The space where he parked the motorcycle was not a parking space. The condominium informed him that he was prohibited from parking in the area as it was contrary to the rules, but the tenant refused to move the motorcycle. The condominium started a case with the CAT. The tenant did not participate, but the landlord did participate.

Rule Enforcement

The CAT first reviewed the rules to determine if there was a violation, and if so, if there were any reasons it should not be enforced in the case.

The condominium had a rule that prohibited owners from placing, locating, keeping, installing, or maintaining any item on the common elemens. The rule authorized the condominium to remove any item left on the common elements by an owner and store the items at the owner’s expense. The CAT determined that the tenant violated the rules by parking the motorcycle on the common elements. The landlord did not dispute the tenant was violating the rules by parking his motorcycle in the area next to his car.

The tenant argued that parking his motorcycle in the spot did not violate a fire safety rule, contravene the by-laws, or impede access to the property, so he should be able to continue parking the motorcycle in the space. The landlord supported the tenant’s position. The condominium conceded that it was not a fire safety issue and did not impede access. The condominium argued the tenant parking his motorcycle in the space was a violation of the rules.

The tenant and landlord also argued that the tenant should be able to park in the space as he had been doing so for many years. They argued that the rule was unreasonable and should not be enforced. They also argued that the condominium’s failure to enforce the rule for many years prevented it from doing so now. The CAT disagreed. The rule was not, on its face, unreasonable:

The fact that [the tenant’s] use of the space is not interfering with any critical infrastructure is not persuasive evidence that a prohibition of his use of that space is unreasonable. The Rule is not aimed at that corner of the parking garage or at him personally. The Rule appears to fall within a range of what is reasonable. I conclude that the Rule is not unreasonable.

The CAT found that there was some unexplained delay in enforcing the rule by the previous manager, but there was no evidence the condominium acquiesced in the tenant’s parking arrangements or led him to believe that he was parking in a permitted space. The CAT said “The lapse in enforcing the Rules might require some additional notice of the change in policy but this was provided by the numerous notices during the fall of 2020.”

Remedies

The condominium had several parking spaces for rent for motorcycles, but all spaces were being used at the time of the hearing so the only option was for the tenant to remove the motorcycle from the parking garage. The CAT gave the tenant 21 days to remove the motorcycle from its location. If the tenant fails to do so, the condominium is entitled to take any lawful action available to it to enforce its rules against the landlord and tenant and it will be entitled to charge those expenses to the owner or tenant, or both.

Owner’s Meritless Challenge to Lien Results in Big Win for Condo

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A recent case demonstrates the possible consequences when owners choose not to pay their monthly common expenses on time and the condominium is forced to take steps to lien the unit and sell it. The unit owner had not paid her common expenses since June of 2018. The Condominium registered a lien against her unit on January 31, 2019. The owner did not pay to discharge the lien, so on May 14, 2019 the Condominium issued a statement of claim seeking to obtain possession of the unit so it could sell it. The owner filed a statement of defence and counterclaim in which she claimed to have paid her common expenses to the manager. She also sought $11,350 in damages for a flood in her unit.

The condominium brought a motion for summary judgment so it could continue its efforts to sell the unit. At the hearing the owner offered to pay the outstanding common expenses. The parties could not agree on the amount of legal costs the owner should pay to the condominium. The condominium sought all of its legal costs ($56,000) from the owner. The owner argued no more than $15,000 would be reasonable.

The judge reviewed the relevant provisions of the Condominium Act, 1998, including section 85(3) which states the lien includes interest and “all reasonable legal costs and reasonable expenses” incurred to collect the outstanding amount. The judge stated that the phrase “all reasonable legal costs” signals that condominiums ought to be entitled to more than partial indemnity costs. Subject to the court’s overriding discretion to determine costs, the condominium is entitled to recover all of its legal costs when enforcing a debt owed by an owner so long as those costs are reasonable.

The judge acknowledged the fees sought by the condominium were high, but found them reasonable in the circumstances of the case. The owner had repeatedly defaulted in her fees in the past, which resulted in liens and power of sale proceedings. The owner was well aware of the consequences of not paying common expenses and the legal steps the condominium would take to recover any unpaid amount. The legal work done by the condominium was necessary to collect from the owner as the owner refused to pay the amount owing to the condominium. The judge also felt the owner’s litigation strategy was to delay the matter to avoid her obligation to pay her share of the common expenses. The judge found that she was not entitled to complain about costs incurred as a result of her own litigation strategy. Lastly, the owner made no efforts to settle the matter and refused reasonable settlement offers from the condominium until just before the hearing.

The case is an interesting one. While I agree that the owner’s own litigation strategy appears to have greatly increased the condominium’s costs, some of the time claimed by the condominium seems unreasonable. For example, spending almost 5 hours to register a lien, seems excessive. A lien usually takes less than an hour to prepare and register. Even including a notice of lien would not bring the time to close to 5 hours. Similarly, 38 hours to review and reply to a responding motion record that, according to the judge, did not contain any evidence to substantiate the claim seems extreme.

Spring Break Reading: Courts Edition

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As described in our post on Wednesday, the Condominium Authority Tribunal (CAT) has been busy so far in 2021 releasing at least 30 decisions. Well, the Superior Court of Justice is no slouch either. There have been dozens of decisions in 2021 that are relevant to condominiums in Ontario. The Court of Appeal has also released some interesting decisions. Today, we briefly review a few of the key decisions.

2021 ONSC 2616: a condominium brought an application against a unit owner claiming that he “terrorized the community”. Other allegations included harassment of contractors, not permitting his unit to be inspected for fire safety purposes, threatening to send asbestos to others’ homes, and playing audio recordings loud enough for the whole condominium to hear on a repeating loop for hours at a time. The condominium sought various orders, including an order prohibiting the owner from communicating with the directors, agents, and contractors. The owner claimed that the condominium had to accommodate him. The court found the condominium had done all that it could to accommodate him and his communications constituted harassment. At paragraph 43 the court summarized the situation as follows:

[43]         A demand for accommodation is only one side of the community living equation. People are required to recognize [the owner’s] disabilities and aid him accessing their goods and services to the point of undue hardship. But the duty to accommodate does not eliminate altogether the other parties’ rights and the need for [the owner] to obey the law and the rules of the condominium. A right to accommodation to participate in the community is not license to harass, oppress, or unilaterally dictate rules for how the condominium community behaves.

2021 ONSC 2575: an owner brought an application against its condominium to set aside part of an arbitration award. The owner only owned parking units and wanted to access the corridors and other common elements. The arbitrator found this was an “absurd result” and found the board’s interpretation of its documents to be reasonable. As a result, the arbitrator determined the owner was not entitled to access the corridors and other common elements. The court set aside the arbitrator’s award. The judge felt the arbitrator had no authority to make the decision it did with respect to the access issue as the arbitrator “cross the line” and purported to amend the declaration to correct perceived inconsistencies or errors. I do not agree with this decision, but it appears the matter is not over given the judge has referred it back to arbitration on the issue of access. We will see what happens with it.

2021 ONCA 191: an owner brought an application against her condominium claiming it had failed to maintain and repair the property and acted oppressively. The owner complained of noise from fans above her unit, which the condominium removed. She claimed the condominium did not resolve the problem in a timely manner. The application was dismissed. The owner appealed. The court of appeal dismissed the appeal. The judge properly considered the test for oppression under section 135 of the Act: was there a breach of the owner’s reasonable expectations and, if yes, the conduct complained of amounts to oppression, unfair prejudice, or unfair disregard of the owner’s interests. The judge was satisfied that the condominium addressed her complaint in a reasonable manner by meeting with her, communicating with her, visiting her unit multiple times, retaining experts to investigate, and in following the recommendations of the experts. The judge’s decision was entitled to deference on appeal.

2021 ONSC 2071: a condominium brought an application against two owners who refused to wear masks while on the common elements. The owners claimed they were exempt due to medical conditions and they were not required to provide proof of their exemption. The condominium argued the owners refusal was deliberate and in defiance of the legislation, municipal mask by-law and the condominium’s mask by-law. The condominium submitted photographs of the owners wearing anti-mask signs and posting anti-mask posters in the building. The condominium was concerned that the refusal to wear masks put the other residents at greater risk. The court had to balance the competing rights of the owners and the rest of the community. The court summarized the balancing at paragraphs 37 and 38:

[37]                 Condominium corporations indeed constitute a form of micro-community, in which the residents partake in a form of social contract. As with living in any community, condominium owners and their guests must enter a social contract which relinquishes their absolute interests to do as they please with their real property, and instead balance their interests with those of the other owners and tenants.  Condominium corporations are mandated to be self-regulated.  Condominium boards have a duty to control, manage and administer their community.  In doing so, they may make rules and policies that are more restrictive than the general law applicable to all persons and premises in the province or in a particular municipality by operation of provincial statutes or regulations, or municipal by-laws: for example, restricting the sorts of pets that residents may keep, or restricting the access of contractors to do non-essential work during the pandemic, as in TSCC 1704 v. Fraser, supra

[38]                 The efforts of the HCC77 board to develop and promulgate a mask policy were not only reasonable, but necessary in the circumstances.  But, in respect of the interplay between provincial and municipal legislation and condominium policy, a condominium board may not promulgate policies that are contrary to law of general application in the province or municipality.  They may make policies that are more restrictive in areas where the law of general application has not already occupied the field, but they cannot be inconsistent.

The court was not prepared to require the owners to wear a mask given their claim of being exempted and the clear language in the legislation and municipal by-law not requiring proof of the exemption. The court did make an order limiting their use of the common elements to essential purposes only (i.e. ingress and egress to their unit, collecting their mail) to protect the other residents. As a result, the owners can no longer walk around on other floors for exercise or visit other residents without wearing masks.

2021 ONSC 1306: an owner refused to replace Kitec pipes in his unit. The condominium notified him that it would replace the pipes at the owner’s cost. The owner refused to permit access to his unit. The condominium commenced mediation proceedings in an attempt to secure his cooperation. He did not participate in mediation. The condominium commenced arbitration proceedings, but the owner did not participate in any meaningful way (other than to object to the arbitrator’s appointment). The arbitrator made an award ordering the owner to permit the condominium to access his unit to replace the Kitec pipes in his unit and ordered $60,000 in costs. The owner continued to refuse, so the condominium sought a court order enforcing the award. The owner brought an application to set aside the arbitration award. The owner’s application was out of time and dismissed. The condominium’s application was granted, so judgment would be issued enforcing the arbitration award.