Ballingall v Carleton Condominium Corporation No. 111, 2015 ONSC 2484
Decision Date: April 21, 2015
This case involves a condominium corporation located near Carleton University in Ottawa. Although the Declaration specified that units were to be used only as single family residences and that rooming houses were prohibited, this rule had not been enforced consistently. A number of unit owners, including members of the Board, rented units to groups of Carleton students. (At the time of this ruling, approximately 116 out of 242 units were rented out, and 54 of these were known to have multiple, unrelated tenants.) Over the years, the Board made a number of attempts to enforce the Declaration. In 2012, on the advice of their lawyer, the Board moved to amend the Rules to define “single family” and to grandfather existing occupancies only. John MacMillan, a Board member who owned several units that he rented to unrelated students, stridently opposed the amendment to the Rules and actively campaigned against it, writing to unit owners four times to criticize the Board and the amendment. At the AGM in June 2013 the new Rule was voted down.
The Board struggled to fulfill its legal obligation to enforce the Declaration. Their lawyer advised them that the status certificate should include a statement that the meaning of “private single family residence” in the Declaration was unclear. MacMillan and another Board member opposed the inclusion of this statement. MacMillan continued to criticize the Board and their lawyer through a private website. Tensions increased, and two Board members, including the President, resigned. The new Board proposed a new amendment to the rules, whereby current owners (not occupants) would be allowed to continue to rent their units to unrelated parties for up to 10 years.
In this action, four unit owners (including two former Board members) sought a declaration that the Condominium’s Declaration forbids occupancy by unrelated tenants and a declaration that MacMillan has not acted in good faith. Justice Aitken found that 1) the Board has an obligation to enforce the Declaration; 2) the proposed changes to the rules (grandfathering owners rather than tenants) are unreasonable; and 3) MacMillan breached his obligations to the Board.
Comment: This is a long decision and the judge had more to say. I have summarized only the main points. No decision yet on costs.