12/11/2018 – Jurisdiction Ontario
Part 65 published on 01/03/2019
Condominium corporation treated owner oppressively after granting permission for common element modification
The owner had sought permission to modify the common elements by creating an opening between two units (in order to convert the two units into a single living space). The Court held that the Board had granted the requested approval, but had then improperly and oppressively treated the owner more harshly than other owners in similar situations. Among other things, the Board had asked that the required agreement between the corporation and the owner (under Section 98 of the Condominium Act, 1998) contain a provision that the Court felt was oppressive. The Court ordered that the parties enter into the agreement without the oppressive provision and also awarded $10,000 in general damages to the owner.
The Court said:
The applicants agree that there must be a s. 98 agreement. The dispute relates to the terms of the agreement that the Condominium has provided to the applicants for signature. The Condominium has treated the applicants differently than the other unit owners who also ought to have executed s. 98 agreements inasmuch as the form of agreement requested from the applicants is different. It has an additional clause – clause 5 – which is the disputed clause.
…
The stance taken by the Condominium commencing in or about mid-2017 was oppressive and unfair. The Condominium proceeded in breach of its governance obligations by holding board meetings without proper notice. The Condominium proceeded as if it had little or no responsibility for the circumstances giving rise to the disputed approval and that stance was taken even in oral argument before me. There is no doubt that the Condominium was responsible for a great deal of what happened here, most notably for an illegal past practice regarding s. 98 agreements that was in place before the applicants even became unit owners. The approach taken with these unit owners, as if the Condominium had little or no role in the prior events, was harsh and unfair. This is in stark contrast to the approach taken with other unit owners who had also made structural changes with now admittedly defective approvals. I recognize that there was a range of types of structural changes, and opening the demising wall had not been done before, but the s. 98 requirement applies to all of the changes. The Condominium treated the applicants more harshly than the other unit owners. Associated conduct by Board members shows targeting and ill will toward the applicants.
Noguera v. Muskoka Condominium Corporation No. 22, 2018 ONSC 7278