As a new year starts, we provide our thoughts on five recent interesting condo cases in Ontario.
While the Condominium Authority Tribunal (“CAT”) is now doing much of the heavy lifting for compliance issues, the Small Claims Court and Superior Court of Justice remain involved in adjudicating many disputes that condos face. Stay tuned later this month for our top five CAT cases from 2023.
With that in mind, our summaries of the top five cases are below, in no particular order.
York Condominium Corporation No. 221 v. Mazur (“Mazur”)
Mazur highlights the importance of fire safety and ensuring that orders from fire departments are promptly complied with. In this case, Toronto Fire Services inspected the owner’s unit and found a number of fire hazards that resulted from hoarding. The owners failed to comply with Toronto Fire Services’ order and York Condominium Corporation No. 221 (“YCC 221”) commenced a compliance application.
YCC 221 obtained an order directing the owners to comply. The court importantly noted YCC 221’s potential liability for Fire Code violations, stating that:
“The Condominium Corporation itself is potentially liable for many of those hazards if it does not take steps to remediate them. Section 26 of the Condominium Act deems the corporation to be the occupier of common elements for liability purposes. Section 126.96.36.199 of the Ontario Fire Code obligates the ‘Owner’ of a property to carry out the provisions of the fire code. The term ‘Owner’ is defined in s.188.8.131.52 as ‘any firm, person or corporation having control over any portion of the building or property under consideration and includes the persons in the building or the property.’ The Condominium Corporation falls within the definition of ‘Owner’ and is therefore obligated to ensure that the respondents comply with the Ontario Fire Code and the Fire Protection and Prevention Act.”
While YCC 221 was successful in its application, Mazur should serve as a warning that condo corporations can be held responsible for fire safety issues, even inside of units.
Carleton Condominium Corporation No. 132 v Newton (“Newton”)
Newton reaffirmed that boards have discretion when considering a unit owner’s request to make changes to the common elements, including the exclusive use common elements. In Newton, the owner installed a new garage door and front slab door with glass panels without first seeking permission. While the board considered retroactively approving the changes, an agreement could not be reached.
Carleton Condominium Corporation No. 132 (“Carleton”) ultimately brought a compliance application under Section 134 of the Condominium Act, 1998 (the “Act”)which the owner countered with an oppression claim. Carleton was successful in its compliance application, while the owner’s oppression claim was dismissed.
The court provided helpful commentary on distinctions between questions of law and ongoing operational decisions. The court wrote that its function did not include making decisions about property management and that unit owners must accept the board’s jurisdiction to make decisions relating to the common elements.
Toronto Standard Condominium Corporation. No. 2581 v. Paterno (“Paterno”)
Paterno once again illustrated the high threshold that must be met to obtain an order that an owner must sell their unit. The unit owner (Mr. Paterno) had a substance abuse issue and conducted himself in a manner described by the court as “aggressive, rude, profane, and disrespectful.” Mr. Paterno engaged in a number of offensive behaviours, several which resulted in criminal convictions against Mr. Paterno.
The court found that Mr. Paterno violated Section 117(1) of the Act however, it held that an order to vacate and sell would be too harsh. The court found that Mr. Paterno should be given an opportunity to rehabilitate himself, as he expressed remorse during the court proceedings.
Paterno illustrates that courts continue to view ordering an owner to sell their unit as a “draconian” remedy and courts are extremely reluctant to grant this type of relief. In most cases, a history of bad conduct and refusal to abide by restrictions, and even court orders, will have to be established before a court will consider ordering the sale of a unit.
Gangoo and Giuntoli v. Toronto Standard Condominium Corporation No. 1737 (“Gangoo”)
In Gangoo two owners commenced a claim against Toronto Standard Condominium Corporation No. 1737 (“TSCC 1737”) and members of the board relating to the way that elections had been handled by TSCC 1737 in past annual general meetings (“AGMs”). The owners felt that they had been treated unfairly during those elections, for a number of reasons, and brought an oppression claim under Section 135 of the Act. The owners were successful and the court agreed that procedures and practices at the past AGMs had been oppressive, but only awarded nominal damages of $5,000.00 to be paid to the owners.
One of the central disputes related to proxies. The owners had collected proxies and attended the management office the afternoon of an AGM to seek confirmation that the proxies were completed properly. The on-site property manager told them that the proxies were completed “fine.”
In fact, the proxies did not name a proxy-holder and were missing dates and signatures. When the proxies were submitted at the registration desk prior to the meeting they were told by the meeting chair that the proxies were deficient and could not be accepted. They asked for the proxies to be given back so that they could correct as many of them as possible, but the chair refused and advised that the proxies, once submitted, were records of the corporation.
The court found that there was oppressive conduct and a breach of Section 135 of Act relating to “the way in which the corporation, through management, handled the applicants’ proxies on the day of the election.”
Gangoo leaves many unanswered questions and is a cautionary tale in the end about treating all candidates fairly.
Moran v. Peel Condominium Corporation No. 485 (“Moran”)
In Moran, the unit owner requested approval to renovate their kitchen and washroom and to use the service elevator to move construction material. The board approved the request, subject to the requirement that the renovations be completed in four days and that use of the service elevator was restricted to two occasions of 20 minutes only.
The owner asked for more time to complete the renovations and to use the service elevator for a longer period given the complexity of the renovation work, but Peel Condominium Corporation No. 485 (“PCC 485”) denied that request. In response, the owner brought an oppression application under Section 135 of the Act.
The court found that PCC 485 acted oppressively and that the owner had a reasonable expectation that PCC 485 would consider his renovation request fairly and provide timely decisions. In particular, the court found that PCC 485’s position concerning the service elevator was arbitrary. The court awarded the owner almost $40,000.00 in damages which illustrates the court’s position that owners need to be treated reasonably.
Please reach out to a member of Miller Thomson’s Condominium and Strata Group if you have any questions.