10/22/2018 – Jurisdiction Saskatchewan
Part 64 published on 12/01/2018
Appeal Court declines to overturn by-law dealing with apportionment of condominium fees
Pursuant to Section 48 the of the Condominium Property Regulations, the condominium corporation passed a by-law (with written consents from owners of at least 75% of the units) to provide for apportionment of common expenses on a basis other than unit factors.
Two owners applied, pursuant to section 49 of the regulations, for an order preventing the condominium corporation from proceeding with the by-law amendment on the grounds that the by-law was oppressive, unfairly prejudicial, or unfairly disregarded their interests. The lower Court refused to overturn the by-law. [See Condo Cases Across Canada, Part 58, June 2017]
The owners appealed, and the appeal was dismissed. The Appeal Court said:
In the end, it did not matter whether the Chambers judge approached the issue using the test for oppression or under s. 49. In either case, it was incumbent on the appellants to present evidence supporting their allegation or objection. While the evidence presented establishes that the unit factors used historically to calculate the owners’ contributions to the common expense fund and the reserve fund had been based on a hybrid of square footage and usage, the appellants adduced no evidence as to how those unit factors had been calculated or what expenses under the new scheme of apportionment were being unfairly attributed to them. Whether under s. 99.2 or s. 49, fairness is a relative concept. It cannot be determined in a vacuum. It can only exist relative to something else. To find something is unfair or oppressive, a judge must have sufficient evidence to support that conclusion. Change without more does not necessarily equate to unfairness or inequity. More than one scheme of apportionment may be fair and equitable. Thus, even if the Chambers judge erred by failing to consider an objection to the scheme of apportionment based on fairness and equity, that error would not have affected the ultimate result as there was insufficient evidence to make such a determination.