Part 42 published on 01/05/13
Condominium directors found in contempt and ordered to personally pay for reinstatement of common elements, and for costs
CCC 145 is a 142-unit residential apartment with an underground garage. In 2010 – 2011, the condominium corporation was required to carry out extensive repairs to the garage. The work required the removal of overlying landscaping features, including planters and driving surfaces, on the podium above the garage.
In 2011, the Board advised of its intention to reinstate the podium area with a significantly different landscape design (described as the “Artistic Design”). The Artistic Design “involved more parking spaces, significantly less vegetation, the removal and replacement of the traffic circle, the removal of the peripheral trapezoidal-shaped planters, the removal and replacement of the address sign and the replacement of the multi-toned red and brown brick of the courtyard walls with gray limestone veneer” and also provided for “the permanent removal of the multi-level planters on Queen, Bay and Albert Streets”.
A dispute arose between certain owners and the Board as to whether or not the proposed changes were “substantial”, requiring a two-thirds vote of the owners under Section 97 of the Condominium Act, 1998. The owners obtained an interim injunction, to prevent the work proceeding without further order of the Court. The parties then reached a settlement whereby the Board agreed that a two-thirds vote would be held at a meeting of the owners. The vote was held and 60.5 % of the owners voted in favour of the Board’s proposed changes. The vote accordingly failed. Following the vote, the Board took the position that they could nevertheless go ahead with the “Artistic Design”.
The objecting owners then obtained a Court order (the “2011 order”) restraining the Board from going ahead. [See Condo Cases Across Canada Part 38, May 2012.] The Court’s endorsement included the following: “The Board is required to reinstate the Courtyard as it existed after the repairs to the garage.”
The Board did not carry out the Artistic Design. However, the Board reconstructed the podium “with elements that significantly differ from the configuration and appearance in place prior to the 2011 work”.
One of the owners (Ms. Boily) reminded the Board of the Court’s direction that the podium should be exactly reinstated. Despite some confusion as to what could be done, the Board went ahead without communicating with the objecting owners, without seeking further direction from the corporation’s solicitor, and without seeking further direction from the Court.
The Court reviewed the law of contempt and found the Board members in contempt of the 2011 order. The Court also found that the Board members acted “neither honestly and in good faith, nor as a reasonably prudent person”. The Court ordered the Board to “return the courtyard and podium landscape of CCC 145 to the configuration and appearance in place prior to the 2011 demolition”. Most notably, the Court also ordered that the Board members “shall personally bear the additional costs, including material and labor of returning CCC 145’s podium landscape to the 2011 configuration”. The Court subsequently awarded costs to the objecting owners, payable by the Directors personally.