13/01/2020 – Jurisdiction Ontario
Part 69 published on 01/03/2020
Condominium corporation unreasonably refused to grandfather owner in relation to new “no smoking” rule
Condominium corporation also not able to add corporation’s legal costs to owner’s common expenses
Initially, the condominium corporation did not have a “no smoking” Rule. One of the owners (Mr. Amlani) was a smoker – and neighboring residents complained about second-hand smoke reaching their units. The condominium corporation took some steps (sealing joints and penetrations between units) which seemed to considerably improve the situation. Mr. Amlani also took various steps to minimize the problems, including smoking only in a particular room and using air filters. However, there were further complaints.
Mr. Amlani expressed a willingness to meet to discuss the problems and possible solutions (with engineering assistance), and to bear the engineering costs. However, the corporation was not very receptive to these requests (and essentially took the position that it was not technically possible to completely stop the smoke transfer). The corporation therefore demanded that the smoking stop (based upon the argument that the smoking constituted a nuisance, in contravention of the corporation’s general Rules). Ultimately the Amlanis temporarily moved out.
The corporation then passed a “no smoking” Rule – subject to grandfathering of smokers currently residing in the building. However, the corporation refused to grandfather Mr. Amlani (because he was not a resident of the building at that time….having moved out as noted above).
The Court held that the condominium corporation had improperly refused to grandfather Mr. Amlani. The Court therefore set aside the condominium corporation’s refusal; and the Court accordingly held that Mr. Amlani was entitled to be grandfathered “provided that the dissipation of the smell of smoke from the unit can be reduced to a level at which it does not disturb other residents of the Corporation”.
The Court also held that the condominium corporation’s treatment of Mr. Almani was oppressive (particularly the corporation’s lack of cooperation in terms of exploring possible solutions to the smoke transfer problems). The Court rejected the argument that no solution was possible. The Court said:
“Once more I underscore that this is not intended to tie the hands of condominium boards when faced with recalcitrant unitholders. It is simply to say that where a unitholder is willing to discuss a practical solution and practical solutions appear evident, boards have an obligation to explore those solutions in good faith.”
ALSO: In the various dealings with the Amlanis (before the commencement of the Court process), the condominium corporation had incurred legal costs of roughly $25,000. The corporation treated these amounts as being added to the common expenses of the Amlanis, and liened their unit (to recover those costs).
The Court declared the lien invalid and ordered that it be discharged.
The Court carefully examined the indemnification provision in the YCC 473 Declaration and noted the words “to or with respect to the common elements and/or all other units” (which can be found in many such provisions). The Court said that “There was no act of Mr. Amlani to the common elements or to all other units.” In other words, the Court held that the wording of the indemnification provision did not apply to the particular enforcement costs incurred in that case. This was in addition to the Court’s concerns about the unreasonableness of the corporation’s conduct.