Recently a Client who owned a condominium unit in a condominium building, came into my office and complained that he was being a target of an unjust campaign by members of his condominium corporation’s (“Corporation) board of directors (the “Board”) to drive him out of the condominium building. The Corporation alleged that, amongst other things, the Client was lighting fireworks off of his balcony on holidays, having loud parties at all hours of the night, and allowing guests to run rampant all over the condominium building. The Client admitted that on the occasion he would host small parties and get togethers but denied the Corporation’s version of his alleged activities.
Initially, the Corporation began issuing letters through the property manager demanding that the client cease the alleged activity on every occurrence in which he would have visitors to his unit. The client attempted to address the matter with the Corporation by asking for proof of the alleged conduct and for a meeting with the complainants to discuss their issues directly with him. His attempts fell on deaf ears and the relationship between the Client and the Board deteriorated.
The final straw came when the Client received a letter from the Corporation’s solicitor threatening legal action and charging him legal fees for the said letter as they were entitled to under the condominium’s declaration and rules. The Client was furious because he felt that the Board failed to properly address the issues directly with him and now he was liable to pay legal fees based solely on the Board’s allegations.
What can a condominium owner do when he or she feels that their condominium corporation is acting unjustly towards them? This article will briefly discuss the remedies available to condominium owners, under the Ontario Condominium Act, 1998 S.O. 1998, CH. 19 (the “Act”)
Under the Act, Section 135 of the Act entitled “Oppression Remedy” permits an owner, a developer, the condominium corporation or a mortgagee to submit a court application against a Condo Corporation, another unit owner, the developer, a mortgagee conduct that is: Oppressive or unfairly prejudicial and/or it unfairly disregards the interests of the complaining party. Section 135 reads as follows:
(1) Oppression Remedy – An owner, a corporation, a declarant or a mortgagee of a unit may make an application to the Superior Court of Justice for an order under this section.
(2) Grounds for order – On an application, if the court determines that the conduct of an owner, a corporation, a declarant or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant, it may make an order to rectify the matter.
(3) Contents of order – On an application, the judge may make any order the judge deems proper including,
- An order prohibiting the conduct referred to in the application; and
- An order requiring the payment of compensation.
The definition of an “Oppression Remedy” in the condominium context is similar to that of business corporations where the courts have found that “Oppressive Conduct” is conduct that is burdensome, harsh or wrongful or which lack probity or fair dealing and may be equated to bad faith; and “Unfairly Prejudicial” includes acts which are unjust or inequitable. In order to receive a remedy under this section, the only pre-requisite is whether the conduct threatens to be or is oppressive, unfairly prejudicial, and/or unfairly disregards the interest of the complainant and once established the court may make any order it deems proper (Loeb 321). Even though the remedy is quite broad and also protects complainants from “threatened” conduct, the courts have stated that there must be an exercise in legitimate expectations: “The court must balance the objectively reasonable expectations of the owner with the condominium board’s ability to exercise judgment and secure the safety, security and welfare of all owners and the condominium’s property and assets” (Loeb 321).
The other section under the Act is Section 136 broadly entitles “Other Remedies” and it provides that as long as it is not contrary in the Act, nothing else in the Act restricts remedies otherwise available to a person for the failure of another to perform a duty imposed by the Act. This would of course include civil and equitable remedies. This Section is a catch all provision with respect to the legal and equitable rights of unit owners, declarants, mortgagees and the condominium corporation.
It may be difficult to find out the type of neighbours and the type of management a condominium building will have but chances are, that if you have a lifestyle that may require more distance between neighbours, a high density condominium building is probably not the place for you. However if you believe that your lifestyle is in line with everyone else’s but your being singled out for arbitrary reasons including personal vendettas by certain neighbours or the condominium corporation, there are remedies available under the Act. Of course these remedies extend to more serious issues including poor management, inconsistent enforcement of rules and other improper acts that may have a negative impact on the value of your property and on your life.
Loeb, Audrey. The Condominium Act: A User’s Manual, 2nd Edition. Toronto: Thomson Carswell, 2005. Print