26/10/2017 – Jurisdiction Ontario
Part 60 published on 01/12/2017
Mandatory mediation and arbitration applied where dispute, in essence, involved a disagreement respecting the declaration, by-laws or rules
This was a dispute between the condominium corporation and an owner flowing from a disputed Directors’ election and related alleged altercations between the owner and members of the Board. The condominium corporation applied for an order (among other things) that the owner comply with the Condominium Act, 1998 (the Act) and the corporation’s declaration, by-laws and rules.
The owner asserted that the Court lacked jurisdiction to hear the Application because the condominium corporation had failed to first attempt mediation and arbitration as required by Sections 132 and 134(2) of the Act. The Court agreed, and dismissed the Application.
The Court held that a condominium corporation has the right to bring a Court Application in cases where the dispute is in essence relating to an alleged breach of the Act. But if the dispute, viewed as a whole, essentially relates to alleged breach(es) of the declaration, by-laws and/or rules, mandatory mediation and arbitration apply. The Court said:
For the reasons stated above, I find that the Application is, in essence, a dispute between the Board and Mr. Ohri over his efforts to assert his rights as a member of the corporation, especially in supporting Mr. Singh in his candidacy for election to the Board in February 2017. The court must be vigilant, especially in the context of a Board election in a condominium corporation, to ensure that its process is not manipulated by Board members who seek to maintain political control within the condominium by seeking a venue in which the condominium’s superior legal resources, and the indemnification terms of its rules, give it a significant advantage in a contest with a Unit owner.