22/07/2021 – Jurisdiction Ontario
Part 76 published on 01/12/2021
Condominium corporation not a landlord (in this case). However, rights as against tenant must first be determined by the Landlord and Tenant Board.
The condominium corporation needed to gain access to the units for mandatory annual fire-safety inspections. On two occasions, the condominium corporation attempted to gain access to the unit (by giving notice to the tenant) and the tenant of the unit refused entry. The tenant was seriously immuno-compromised, and was therefore concerned about personal safety during the pandemic.
The condominium corporation applied to Court under Section 134 of the Condominium Act 1998, seeking an order to permit the required entry. In the Court process, the tenant alleged that the Landlord and Tenant Board (L&T Board) had exclusive authority over the dispute. Among other things, the tenant argued that the condominium corporation was a “joint landlord” (and that the dispute between the parties therefore had to be decided by the L&T Board).
The Court decided to adjourn the Court process, pending a determination of the jurisdiction issue by the L&T Board.
The L&T Board concluded that the condominium corporation was not a landlord, except in cases where a condominium corporation actually enters into a lease with a tenant.
Nevertheless, the L&T Board went on to say that the condominium corporation could not enforce its rights by way of application under the Condominium Act without first giving the landlord an opportunity to arrange for the tenant’s compliance under the Residential Tenancies Act (including by way of application to the L&T Board if necessary). The L&T Board said:
It follows that the condominium corporation may apply to the courts for appropriate relief if, and only after, the Landlords have demonstrated that they are unwilling or unable to take the reasonable steps necessary to obtain a remedy for the claim under the RTA.
Editorial Note: In my respectful view, this is not correct in law. It’s true that the Residential Tenancies Act includes the following provision: If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies.
However, at least on the facts of this case, in my view there is no conflict between the Residential Tenancies Act and the Condominium Act.
The Residential Tenancies Act governs the relationship between a residential landlord and a tenant. The Condominium Act governs the relationship between owners and occupants of condominium units, and the condominium corporation.
When someone enters into occupancy of a condominium unit (as opposed to another type of property), they enter into a special relationship with that condominium community. In effect, they agree to accept various rights and obligations, quite separate and apart from the rights of the landlord under residential tenancies law. This special relationship arises because Ontario law recognizes the importance of the close relationship between members of a condominium community. The actions of one could have a serious impact upon other members of the community.