23/03/2017 – Jurisdiction Ontario
Part 58 published on 01/06/2018
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 Court declined the requested order. The Court said:
Furthermore, I cannot conclude, based on the evidence, that Park Manor’s actions in this case were unfairly prejudicial, or that they unfairly disregarded the interests of Harvard and Western. Park Manor began its inquiry into the apportionment of common expenses based on a question raised by one unit owner. The matter was subsequently explored, investigated, debated, and canvassed at a duly constituted special meeting of the owners. Each of the unit owners had the opportunity to attend the meeting and participate in the discussion. Each of the unit owners had the opportunity to “vote”, by either consenting or not consenting to the proposed amendment. The scheme of apportionment was approved through a form of democratic process, specifically provided for in the relevant legislation.
Furthermore, the scheme of apportionment that Park Manor has chosen is not arbitrary, and there is nothing inherently unfair about it. It is based on the size of each unit. It is concrete, ascertainable, and attached to a characteristic of each unit that makes sense in the context of real estate.
