I feel like all I write about these days is Bill 106 (the amendments to the Act). Today, I’m getting back to my roots and writing about some important decisions released by the courts and tribunals in Ontario in the past few months. The first is about the enforcement of a lien. The second is about an owner who won’t quit. And the third is about a director who felt she was discriminated against because of her age. All of the decisions are available on CanLII if you want to read them in their entirety. Continue reading
There has been a lot of talk this week about defamation in condos. Most of the interest comes from a decision released in Ottawa last week. A judge has ordered Yahoo! and Yahoo! Canada to disclose information that a condominium needs to determine the identity of a person responsible for sending defamatory emails to its owners and residents. The emails apparently accused the directors of receiving kickbacks.
I love this time of year. AGM season is almost over. It is hot and sunny; perfect weather for golfing, relaxing by the pool, or going to the beach. And Canada Day is just around the corner! With the 150-year celebrations planned across the country this year’s festivities should be spectacular. More flags. More fireworks. More friends. More family. More celebratory drinks. However you like to celebrate, this year should be a memorable one!
Unfortunately, large celebrations often mean more condo disputes. “My neighbour’s flag blocks my sunlight”. One of the tenants lights fireworks off his 12th-floor balcony. And of course, one of the most common complaints regardless of the time of year, noise and loud parties. No one wants to stop people from having fun, but it can be difficult for a board to balance the competing interests in a condo setting. Here are some suggestions to make this year’s festivities fabulous.
What do you think about raising children in condominiums? It seems everyone has an opinion about it. Most write about the perceived cons of condo living, like having no backyard. Recently, I’ve read several articles (like this one and this one) that focused on the positives of condo living for children, like amazing amenities (i.e. pools, games rooms), unique opportunities (i.e. cooking classes, swimming lessons), and large, supportive communities.
While condo living can provide great opportunities for children and families, it can also create a host of problems for condo boards and managers. Noise complaints. Children running around at all hours. Pressing all of the elevator buttons. Some children are little tornados left free to cause destruction and chaos. With a little effort by everyone, condos can be a great place to raise children.
…don’t say anything at all. This is one of the first lessons most people learn as preschoolers. If they continued to say negative things about others, there were usually consequences, like a timeout or their favourite toy was taken away. This is how most people learned to communicate with others in an appropriate way.
Unfortunately, it seems like some owners could use a refresher on this basic rule. I frequently hear of owners, managers, directors, or staff being harassed by an owner calling them inappropriate names, yelling at them, or using vulgar language. In some cases, the owner may not know they are being offensive, but in most cases, they do. Maybe they think there are no consequences for their inappropriate behaviour now that they are adults. Afterall, who is going to give them a timeout or take away their favourite toy? There are no condo police.
Fortunately, a recent case suggests that there are consequences for owners who choose to harass others living or working in the condominium.
A condo director unilaterally fires the property manager, hires himself in her place, enters into several other contracts without discussing it with the other directors, bullies the other owners, sues the corporation, and causes thousands of dollars in damages. It seems like an unbelievable plot for a movie, but this one is based on a true story! Continue reading
You may recall a case from last summer where a board of directors disqualified one of the directors for violating the condominium’s by-law, which included a Code of Ethics. The lower Court found that the condominium’s by-law permitted the board to disqualify the director. Although the Judge found that the disqualified director had not been given proper notice of the review by the board prior to his disqualification, the Judge was not prepared to order the board to re-instate him since the vacancy created by his disqualification had been filled. Instead, the Judge ordered that the board was at liberty to conduct a fresh ethics review within 90 days, failing which the disqualified director could move for re-instatement to the board.
The board conducted a fresh review and concluded that the disqualified director had violated the Code of Ethics and was still disqualified. The disqualified director appealed to the Court of Appeal. He argued that the by-law permitting the board to determine if he had violated the Code of Ethics was inconsistent with the Condominium Act, 1998, and unreasonable. He also argued that the Judge erred by not re-instating him.
In the past an order forcing a unit owner to sell his or her unit was seen as a draconian measure to be used only in the most outrageous situations, such as those involving multiple physical assaults on the other owners or property manager. In the past year or two, however, several condominiums have been successful in obtaining such orders without the same level of nuisance behaviour, criminal activity or property damage that was present in the previous cases.
The most recent case is Carleton Condominium Corporation No. 348 v. Chevalier (2014) SCJ. The accusations against Mr. Chevalier included that he removed salt and grit that was placed to prevent slips and falls in the winter; he failed to remove a derelict vehicle from the premises (it apparently did not have a steering wheel or seats!); he used profanity and verbally abused contractors, property managers and directors; and he modified the common elements without approval and attempted to prevent the condominium from restoring the common elements. At a previous hearing the Public Guardian and Trustee was appointed as litigation guardian for the owner as there were concerns about his ability to represent himself due to a possible mental illness. Continue reading
Section 134(5) of the Condominium Act, 1998, permits the condominium to add “additional actual costs” to the common expenses payable for a unit where it is successful in obtaining an order for damages or costs from the owner or occupant of the unit. Many condominiums rely upon section 134(5) of the Act when seeking costs from owners and occupants after a successful application. The courts have recently begun to resist such claims where the amount sought for legal costs is excessive or unreasonable.
In one of the more recent decisions (York Condominium Corporation No. 301 v. James (2014) SCJ) the condominium sought over $125,000.00 in costs from the owner. The condominium also sought over $27,000.00 for security, plumbing, inspection, and locksmith charges. The court refused to allow the condominium to recover all of its legal costs. The court refused to award any of the other charges.
It looks like the Superior Court of Justice has ordered another unit owner to sell her unit. In Peel Condominium Corporation No. 304 v. Hirsi  O.J. No. 220 Justice Skarica ordered the unit owner to sell her unit after “stabbing and shooting” incidents. The condominium was awarded full indemnity costs as well. Read the brief case here.