This question was recently considered in the reported decision, Jasper Developments v. York Condominium No. 82, 2022 ONSC 768.
By background, York Condominium Corporation No. 82 (“YCC 82”) had significant financial issues, and approved a special assessment of approximately $35,000 per unit to deal with urgent repairs. It was this special assessment which prompted the Applicant unit owner, Jasper Developments (“Jasper”) to bring court proceedings in an attempt to stop the special assessment.
Jasper did not attack the special assessment directly. Rather, Jasper brought an Application under s. 134 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), for an order that YCC 82 be compelled to hold a meeting of owners to vote on the removal of YCC 82’s board of directors.
Jasper’s argument was not that the special assessment itself warranted the meeting of owners. Rather, Jasper’s argument was that YCC 82 had failed to call a meeting of unit owners in response to a valid notice under s. 46 of the Act, and that owners which did not pay the special assessment would be prevented from voting at the upcoming AGM. Jasper’s argument was that this amounted to oppression under s. 134(3) of the Act. Jasper relied on Hogan v. Metropolitan Toronto Condominium Corporation No. 595, 2014 ONSC 3503 (“Hogan”), for authority that it could obtain this relief under s. 134 of the Act.
The court was not sympathetic to Jasper’s position. The uncontested engineering evidence was that YCC 82 needed urgent shoring repairs, and that absent the money obtained from the special assessment, these repairs could not be completed.
The court also took the position that an application under s. 134 of the Act was not Jasper’s only remedy. The court took the position that Jasper had a self-help remedy under s. 46(5) of the Act. This section provides that where a condominium corporation fails to hold a meeting of owners after receiving a notice under s. 46, the requisitionist may call a meeting of owners within 45 days.
As a result, Jasper’s application was dismissed.
The central takeaway from this case is that where a condominium corporation fails to hold a meeting of owners following a s. 46 notice, it may be prudent to attempt the self-help remedy under s. 46(5) prior to bringing a court application under s. 134. However, given that the court application was successful in the aforementioned Hogan case, there may still be occasions where proceeding with an immediate court application will be the correct decision. Each case will turn on its own facts.