Noguera v. Muskoka Condominium Corporation No. 22, 2018 ONSC 7278
Decision Date: December 11, 2018
The applicants, Mr. and Mrs. Noguera, have owned unit 210 of MCC No. 22 since 2014. In 2016 their next-door neighbor Mr. Mitchell informed them that he planned to sell his unit. The Nogueras proposed to the Board that they create an opening between the two units. If the proposal was approved, they would make an offer to purchase unit 211. The Board considered the proposal in March 2016. Both Mr. Noguera and Mr. Mitchell were Board members at the time. Mr. Mitchell indicated that he had a conflict of interest and left the meeting while the proposal was discussed. Mr. Noguera remained for the discussion of the proposal but did not vote on it. He did not feel he had a conflict under the Condominium Act and no one present indicated otherwise. The Board voted to approve the proposal, subject to certain conditions. The written resolution did not include a Section 98 agreement, (that’s the agreement, required by law, that an owner makes with the board before making changes to the common elements.) Previous owners who had made structural changes were similarly not asked to sign Section 98 agreements.
The Nogueras purchased unit 211 and began renovations. Somehow, starting in 2017, relations between the Nogueras and others began to sour. Among other things, the new President of the Board told the Nogueras that they were forbidden from using the lakeside path, based on unproven allegations that they had been looking into the windows of other units. In November 2018 the Board discussed whether the Nogueras should stop renovations until they signed a Section 98 agreement. The Nogueras indicated that they were willing to sign the agreement but not to stop renovations. (Further conflict: A couple of Board meetings held without proper notice to Mr. Noguera, still a Board member; a “heavy-handed” letter to the Nogueras from the Corporation’s lawyer; the President of the Board telling other unit owners that Mr. Noguera was “evil;” secret audiotaping of a Board meeting.)
Justice Matheson had to decide:
1) Was there a quorum at the March 2016 meeting when the Nogueras proposal was discussed?
Answer: Yes. Mr. Noguera did not have a conflict of interest and so his presence counts toward the quorum.
2) Was approval given for one or two openings between units 210 and 211?
Answer: The Board didn’t specifically discuss this question, but they later approved plans that indicated two openings.
3) What about the Section 98 agreement?
Answer: The Nogueras must sign one, but the one proposed by the Board is too broad.
4) How to deal with the other elements of the conflict?
Answer: The Condominium wrongly disparaged the Nogueras and must pay them $10,000 in damages. The Nogueras may use the lakeside path again.
Comment: A wise person once said, “If you don’t like rules, don’t buy a condominium.” I would like to add, “If you can’t set aside personal enmity, don’t become a condominium director.”