Part 22 published on 01/05/08
Condominium corporation obligated to resolve disagreement through arbitration
The condominium corporation commenced a court application (pursuant to Section 134 of the Condominium Act, 1998). The corporation alleged that the owner and other occupants of the unit had conducted themselves in a loud and disturbing manner in contravention of the corporation’s Declaration, and had brought a dog into the building in contravention of one of the corporation’s rules. The owner denied that there had been any loud or disturbing behaviour. The owner admitted to having a dog in the unit, but stated that the dog remained in the unit only for a week and was removed immediately following the corporation’s initial warning letter.
The key question for the court was as follows:
Does the dispute between the parties constitute a “disagreement” within the meaning of Section 132(4) of the Condominium Act, 1998, thus triggering mandatory mediation and arbitration contemplated by that section?
The Court’s answer was “yes”. The Court said that mandatory mediation and arbitration applies to “disagreements about the validity, interpretation, application, or non-application of the Declaration, By-laws and Rules”. The Court said that the issues raised in this case are “issues involving the interpretation and application of the corporation’s Declaration and Rules”, and accordingly constitute a “disagreement” within the meaning of Section 132(4) of the Act.
The Court also noted that the above conclusions appeared to be supported by the fact that the corporation’s legal counsel, in its initial letters to the owner, made reference to mediation and arbitration. The owner did not respond to those initial letters, and the Court agreed that mediation accordingly was “not available”. But this did not entitle the corporation to commence a Court application, because arbitration was nevertheless available. The Court noted that the corporation could pursue arbitration even if the owner failed to participate in the arbitration process.
The Court application was accordingly dismissed and costs were awarded to the owner.