Condo Law Digest – November 2016

Allainville dans les Yvelines le 18 août 2012 - 15.jpgMiddlesex Condominium Corporation No. 229 v 1510231 Ontario Inc. et al., 2016 ONSC 6325
Decision Date: October 11, 2016
http://canlii.ca/t/gv2jt

The defendant numbered corporation (hereafter 151) owns property adjacent to the MCC #229. They share ownership of a retaining “gabion wall.” (This is a wall made of cages or boxes filled with rocks, sand, concrete, etc. See the photo above.) The wall, which was constructed in 1989, provides support to easements that MCC #229 has over 151’s property. The wall has deteriorated since a “major collapse” in 2003 and neither side has repaired or maintained it. In this action, MCC #229 seeks a summary judgement that 151’s negligence in maintaining the wall has interfered with their easement rights and therefore caused them damages.

So the question is, does the servient tenement (in this case 151) have a duty to repair with respect to easement rights of the dominant tenement (in this case MCC #229)? The short answer is no: the obligation of a servient tenement is always negative (that is, not to do something). A positive obligation (for example, to repair) can  be imposed only by a positive covenant. Justice Mitchell dismissed the claim.

Comment: I have not summarized claims against two additional defendants and counter-claims. MCC #299 made two previous claims against 151 regarding the wall, in 2004 and 2009. I can only wonder whether legal proceedings have cost more than repairing the wall would have.

Kamal v. Peel Condominium Corp. No. 51, 2016 HRTO 1282
Decision Date: Sept 30, 2016
http://canlii.ca/t/gv0g7

Three Muslim unit owners brought an HRTO claim against their condominium corporation and property management company. They accuse the defendants of discriminating against them on the basis of creed by holding a special owners’ meeting on the religious holiday of Eid-ul-Azha in 2013. The applicants belong to a group of Muslims who celebrate Eid 10 days after the sighting of the crescent moon (Oct. 16), rather than on a fixed calendar date (Oct. 19). The date of the meeting was arranged a couple of weeks before the sighting of the crescent moon. By the time the date of Eid was announced, PCC #51 claimed that there was not enough notice to change the date of the meeting.

In order to be successful in their application the applicants would have to show that the respondents treated them in a “distinct and disadvantageous manner” because they are Muslim, or that the respondents’ actions had an adverse effect on them because they are Muslim. The Adjudicator dismissed the applications against both the property management company (who played no part in setting the meeting date) and PCC #51. There was no evidence that the scheduling of the meeting was meant to exclude Muslims; the opportunity to vote by proxy was an adequate accommodation.

Comment: As the Adjudicator said, “In a condominium corporation with 169 units, there will almost always be someone who is unable to attend a meeting for Code-related reasons, such as disability, family status (i.e. childcare and/or elder care), or creed.”

TSL-75956-16 (Re), 2016 CanLII 71241 (ON LTB)
Decision Date: October 17, 2016
http://canlii.ca/t/gv8hc

The applicant owns a unit in a residential condominium, which she rents. In May of this year the police raided the apartment, breaking down the door in the process. The repairs cost $7000 and the applicant seeks an order requiring the tenants to reimburse her this amount. According to the Residential Tenancies Act, 2006, a landlord is entitled to the cost of repairs if the damage was caused by the willful or negligent actions of a tenant, another occupier of the rental unit, or a person whom the tenant permitted in the residential complex.

The Chairman dismissed the application. First, the police were not individuals permitted in the complex by the tenants. Second, as the police officers who raided the unit were not present at the tribunal, there was no way to know if they broke down the door because the tenants refused them entry. (In which case the damage would have been caused by the tenants’ willful or negligent actions.)

Comment: The landlord did not supply a police report, and the questions of who or what the police were looking for and what actually happened on the night of the raid, are shrouded in mystery.

About the Image: A gabion wall, Yvelines, France by Lionel AllorgeOwn work, CC BY-SA 3.0, Link

Posted in Condo Disputes.

2 Comments

  1. re Appreciated the attention to Middlesex CC # 229 v 1510231 Ont.(Nov 2016). The pre-condo realty environment of restrictive covenants/CCRs is of special interest to those of us who live in Building Schemes. Unfortunately there may also have been ‘erosion’ in judicial familiarity with those. Neither Justice Mitchell here (nor apparently counsel) cite a 2005 Ontario Court of Appeal decision involving virtually the same scenario but without gabion baskets. A disturbing 2016 Divisional Court decision purports to challenge the Austerberry/ Parkinson/Amberwood decisions and is also uncited. Enjoyed the article. Bob Driscoll

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