Condo Law Digest – Mid-summer 2016

parking signCheung v York Region Condominium Corporation No. 759, 2016 ONSC 4236
Decision Date: July 5, 2016

YRCC 759 is part of the York Corporate Centre, a large area made up of several developments. Ms. Cheung owns three units in YRCC 759 and they are leased to Dragon Boat Fusion Cuisine, a popular restaurant. There is not enough parking on-site to accommodate all of the restaurant patrons during busy times. (In fact, there have been conflicts over parking and a “very toxic situation” regarding parking is said to exist between the restaurant’s employees and patrons, and other business owners.) Until 2009 the parking spots were allocated on a “first come, first serve” basis. In 2009 YRCC passed a by-law authorizing the lease of 2 common element parking spots to each unit. However this by-law was not registered on title and was therefore invalid. In 2015 YRCC passed a new by-law, authorizing the lease of 4 common element parking spots to each unit.

Ms. Cheung argues that the new by-law is also invalid, on the grounds that YRCC 759 may lease out parking spots only if their Declaration provides for it. Moreover, the by-law is unreasonable, oppressive, and discriminatory. Justice Goldstein rejected these arguments and dismissed the application. YRCC 759 passed the by-law in order to remedy an existing problem and be fair to all unit owners. It is not his job to second guess the Board, unless the by-law is unreasonable or contrary to the Condominium Act or to their Declaration. While Ms. Cheung feels that the parking situation is harming her tenant’s business, other unit owners also feel that the parking situation is harming their businesses.

Comment: Justice Goldstein found it not reasonable to expect that the restaurant patrons be allowed to use every single un-allocated parking spot, despite the fact that this was the situation before 2009.

Senchire and Lahashmi v Summerhill Property Management, MTCC No. 856 and three Board members, 2016 ONSC 3630
Decision Date: June 3, 2016

The applicants are unit owners and former Board members of MTCC No. 856. Every residential unit in the building is allocated one parking space. There are 50 additional parking “units” and the applicants each own one. A few years ago Summerhill Property Mgm’t took over managing MTCC No. 856 and they began charging $50/month in common expenses to owners of the parking units. The applicants (Board members at the time) requested access to documents, seeking evidence of past practices. Relations between the applicants (on the one hand) and the other Board members and management (on the other hand) became strained, to the point where communication took place through lawyers. (In the words of Justice Dunphy, “The result was significant expense to both sides with little productive dialogue towards dispute resolution.” It is perhaps symptomatic of this that the parties appeared before two different judges and twice before the Registrar before finding themselves in front of Justice Dunphy.)

Senchire and Lahashmi commenced this action midway through 2014, seeking access to financial documents and disputing the ability of MTCC 856 to levy the $50/month in common expenses. The respondents removed Senchire and Lahashmi from the Board in a special meeting. Justice Dunphy found: 1) Since coming before the court MTCC has been scrupulous in providing access to information; no need for any further order. 2) A previous order by Justice Stewart has already decided that MTCC has the right to assess common expenses to the parking units. 3) Based on his own reading of the Declaration, MTCC is both entitled and required to allocate common expenses to the parking units. 4) Conduct on both sides has aggravated the magnitude of costs. Each side asked for their costs, with MTCC requesting over $24,000 on a partial indemnity basis. Justice Dunphy ordered that each applicant pay $3500 in costs.

Comment: In coming to his decision on costs, Justice Dunphy took into consideration the applicants’ failure to have dealt promptly with the access to information issues, and that the applicants’ personal stake in the outcome was slight ($600/year).

Wong v Salivan Landscape Ltd., 2016 ONSC 4183
Decision Date: May 5, 2016

This decision concerns a motion to amend a statement of claim by adding three new defendants. In January 2014 Ms. Wong slipped and fell on the ice and broke her ankle while walking by the entrance to the condominium building where she lives. Her initial claim named the condominium corporation (YRSCC 1008) and Salivan, a landscaping contractor. In February 2016 Ms. Wong learned (though an email sent by defense counsel) that other parties may have had a role in keeping the property safe and so she applied to amend her statement of claim. One of these proposed defendants, G4S Security, opposed the motion, on the basis of the expired presumptive limitation period. Master Haberman granted the motion, saying that there is no indication that Ms. Wong was aware that G4S had any role in clearing ice and snow, and that there are limits to how far a plaintiff must go to ensure they have captured all possible defendants.

About the Image: By kallernaOwn work, CC BY-SA 3.0,