Using a By-law to Control Parking

A recent decision of the Ontario Superior Court confirmed the validity of a condominium’s by-law, which was passed to control parking on the common elements. See the case of Cheung v. York Region Condominium Corporation No. 759.

Here’s my summary of the court decision, from Condo Cases Across Canada (which I author for quarterly publication by the Canadian Condominium Institute).

The condominium’s parking was not originally allocated to any of the units. The condominium corporation passed a by-law to authorize the corporation to lease four common element parking spots (per unit) to each owner.

One of the owners had leased three units to a restaurant operator. That owner asserted that the restaurant should be entitled to make greater use of the parking (particularly during the restaurant’s busy times), in part to satisfy the applicable zoning requirements. That owner asserted that the by-law was unreasonable, oppressive and outside the corporation’s authority.

The Court disagreed, and ruled that the by-law was valid and enforceable. The Court said:

“I understand that Ms. Cheung had an expectation that her tenant would be able to use “all” the shared parking spots. That had been the situation prior to 2009. Her material is replete with assertions that for many years parking had been on a “first come, first served” basis. First come, first served appears to mean, in practice (and in Ms. Cheung’s expectation) that the patrons of the restaurant could use every single un-allocated parking spot. That, of course, is not a legitimate or a reasonable expectation. Indeed, it is what led to the parking problems in the first place.

Ms. Cheung’s real complaint, with respect, is not that the Board treated her differently from the other owners. [Her] real complaint is that the Board did not treat her differently from the other owners. In essence, Ms. Cheung says that the board has acted unfairly and oppressively by taking away her special extra parking privileges. That is no basis upon which to grant a remedy.”

I understand that this decision is under appeal – so there may yet be more to this story.

However, the moral of the story, up to this point, is as follows: in cases where parking was never allocated to the owners under the terms of the Declaration, a by-law may be the answer!

For more information about by-laws and common element parking spots, contact us.

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Case Law Highlights

We’ve had some exciting court decisions in the condominium field over the past year or so. Here are my Five Favorites.

1. Mazzilli v. Middlesex Standard Condominium Corporation No. 823 (Ontario Superior Court – September 3, 2015)

Repair and maintenance projects (falling within the mandate of the Board) can sometimes include quite significant changes of material and/or appearance, without triggering any need for owner involvement under Section 97 of the Condominium Act, 1998.

To read more about this case, see our previous blog post A Board’s Mandate to Make Changes to the Common Elements.

2. MTCC No. 985 v. Cheney (Ontario Superior Court of Justice – December 1, 2015)

Condominium corporations must take reasonable steps to prevent excessive noise disturbances, including noise from one unit to another. However, condominium residents are not entitled to absolute quiet. They must be prepared to accept levels and types of noise that one would reasonably expect given the age and construction of the building.

3. Ryan v. York Condominium Corporation No. 340 (Ontario Superior Court of Justice – April 13, 2016)

Condominium corporations must investigate and attend to required maintenance and repairs with reasonable haste. Otherwise, the corporation may be liable for any extra costs incurred by an owner (due to the delay).

To read more about this case, see our previous blog post Owner Awarded Damages for Corporation’s Slow Repairs.

4. Wu v. Carleton Condominium Corporation (Ontario Small Claims Court – April 20, 2016)

An owner may be entitled (under Section 55 of the Condominium Act, 1998) to see the corporation’s list of owners’ names and mailing addresses, assuming the owner has a proper reason to see the list, consistent with the purposes of the Act. However, an owner is not entitled to see the corporation’s list of email addresses of other owners without their consent.

To read more about this case, see our previous blog post Is An Owner’s Email Address Part of Their Address for Service?.

5. 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375 (Ontario Court of Appeal – August 30, 2016)

The “business judgment rule” applies to decisions of condominium Boards of Directors. When arriving at a decision (such as whether or not to grant an owner’s request for a change to the common elements), the Directors must give the matter fair and reasoned consideration, including proper consideration of the rights and interests of all owners. As long as the decision-making process is reasonable, and as long as the Board’s ultimate decision is “within a range of reasonable choices”, the Courts will show deference, and therefore allow the Board’s decision to stand, even if the Court might have arrived at a different choice.

To read more about this case, see our previous blog post Court of Appeal Confirms Boards are Entitled to Deference.

And for any more questions about condos, get in touch with us.

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New Authorities Under Bill 106

As most of our readers will know, the province has established two new authorities under Bill 106, the Protecting Condominium Owners Act:

  1. The Condominium Authority of Ontario
  2. The Condominium Management Regulatory Authority of Ontario – under the new Condominium Management Services Act, 2015

The province’s website lists the functions of the Condominium Authority. The Condo Authority will provide:

  • Affordable access to quicker, accessible and lower cost resolution of disputes primarily between corporations and owners
  • Self-help tools, case management and mediation to prevent easy-to-resolve disputes from being tied up in costly and time-consuming legal proceedings
  • Education and awareness for condo owners about their rights and responsibilities, and the basics of condo living and how it differs from other freehold ownership
  • Education for condo directors
  • A registry of all condo corporations in Ontario, including their boards of directors and contact information
  • A guide for condo buyers, setting out unit owners’ roles and responsibilities

The province’s website says that the Condominium Management Regulatory Authority will administer the Condominium Management Services Act, 2015, including the following functions:

  • A compulsory licensing system for condo managers and management providers
  • Training and education requirements for managers
  • A code of ethics for condo managers and providers

These two new provincial authorities won’t start performing their various functions just yet. We are all still waiting for the new regulations (under this legislation) and for the legislation to be proclaimed in force. We’re now told that these steps will happen in stages in 2017.

In the meantime, the province is preparing the authorities for their coming work, and has appointed the initial Boards of Directors for the two authorities. They are as follows:

Condominium Authority of Ontario
Tom Wright, Chair
Genevieve Chornenki
Armand Conant, Secretary
Frank D’Onofrio

Condominium Management Regulatory Authority of Ontario
Aubrey LeBlanc, Chair
Joan Andrew
John Oakes
Gail Beggs

For more information about Bill 106, contact us.

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Home Inspectors and the Implications for Condo Purchases

This week, an article by Jim Davidson was published in the online publication Condo Business.

It is titled “Regs Likely To Have Minor Impact On Purchases”, and you can read it here.

In the article, Jim explores how the proposals to license and regulate home inspectors will affect condominium purchases. Specifically, he looks at the role of status certificates and reserve fund studies in the purchase process.

For more about home inspections and condominium purchases, contact us.

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ACMO / CCI-Toronto Condominium Conference 2016

This week is the 2016 National ACMO / CCI-Toronto Condominium Conference! It is the twentieth year this event has been held, and will be at the Toronto Congress Centre, running from November 11 to 12.

Presenting at the conference are our very own Jim Davidson and Nancy Houle. Jim will be speaking at the “Rapid Fire Legal Issues” discussion on Friday November 11 at 9:15am, and Nancy will be speaking at “Case Law Update”, the final event, on Saturday November 12 at 2:15pm. Also in attendance from the firm will be Kristen Bailey.

Other topics on the program include:

  • Technology in Condos
  • Directors’ Survival Kit
  • Insurance
  • Keynote speaker: author, columnist, and media commentator Jim Carroll.

For further information and to register, visit the event website here.

And for any question relating to condos, contact us.

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