07/04/2021 – Jurisdiction Ontario
Part 74 published on 01/03/2021
Arbitrator exceeded his jurisdiction. Users of parking units were entitled to access all parts of common elements apart from recreational facilities.
The Appellant owned a number of parking units in the condominium. The condominium corporation took the position that users of the parking units did not have the right to access the condominium’s elevator, stairwells, lobby or common corridors. According to the condominium corporation, they were only permitted to access the parking units by way of a separate, dedicated entrance for this purpose.
This disagreement respecting the rights set out in the corporation’s Declaration was decided by way of arbitration pursuant to Section 132 (2) of the Condominium Act.
On this issue, the arbitrator agreed with the condominium corporation, and determined that a “reasonable interpretation of the Declaration” was that the users of the parking spaces were not intended to be able to make use of the condominium’s elevator, stairwells, lobby or common corridors.
On appeal from the arbitrator’s award, the Court held that the arbitrator had exceeded his jurisdiction because he didn’t interpret the Declaration but rather purported to correct an error or inconsistency in the Declaration. This could only be achieved by way of Court Application pursuant to Section 109 of the Condominium Act.
The Court held that users of the parking spaces were permitted to access all areas of the common elements, apart from recreational facilities (specifically defined in the Declaration and indicated to be available only to occupants of dwelling units).