22/03/2017 – Jurisdiction Ontario
Part 58 published on 01/06/2018
Court quashes bylaw dealing with apportionment of condominium fees
This case is nicely summarized in the first paragraph of the decision:
In this application, the applicants, owners of units within a condominium property, seek an order prohibiting their condominium corporation from amending its bylaws to change the apportionment scheme for the collection of contributions to the common expenses of the corporation. The bylaw amendment contemplates a change from the default scheme of apportionment, based on unit factor, to one in which certain expenses are apportioned by unit factor and other expenses are apportioned equally between units, irrespective of unit factor. The application is defended by the management company for the condominium corporation.
The Court held that the by-law should be quashed, for lack of the required consent. The Court said:
Having found s. 48 of the Regulations to be valid and proper delegated legislation, I now turn to its application to the present case. In my view, and contrary to that expressed by OPRA, that application of s. 48 of the Regulations is not to be read in combination with the voting rights provisions in s. 41 of the Act. The process set out in s. 48 of the Regulations is completely different, and does not engage voting rights, per se. Indeed, it does not even contemplate a meeting. Rather, it simply “raises the bar” by requiring written consent from at least 75% of the owners. In this context, it is not reasonable to equate such consent to the voting contemplated in s. 41. In my view the wording of s. 41 neither assists nor informs the interpretation of s. 48 of the Regulations.
In the absence of a requirement that the consent of the owners is to be calculated by unit factor, I am satisfied that s. 48 of the Regulations requires the consent of the 75% of the registered owners, without regard to unit factor. In this instance, the court was not provided with evidence of written consent of the 75% of the registered owner, without regard to unit factor. In this instance, the court was not provided with evidence of written consent by anyone. Rather, Albony’s position was premised on the view that that the minutes of the meeting, which recorded the vote of more than 75% of the total unit factors, was sufficient. Aside from my conclusion that Albony wrongly relied on the unit factor calculation, I do not accept that the relied upon form of written consent is adequate.
