Part 28 published on 01/11/09
No mandatory mediation and arbitration where dispute involves owner AND tenants.
The owner, Simard, rented his three units to students. The condominium corporation commenced a Court application against the owner and his tenants. The corporation asserted that they were in violation of the corporation’s declaration, which states that each unit can be occupied only as a one-family residence.
The owner moved for dismissal of the corporation’s Application on the ground that Section 132 of the Condominium Act, 1998 requires mediation and arbitration, since this matter involves a “disagreement with respect to the declaration” (between the corporation and the owner). The owner was unsuccessful at the lower Court (see Condominium Cases Across Canada – Part 26, May 2009). The owner appealed, and was also unsuccessful on appeal. The Court of Appeal declined to order mediation and arbitration for the following reasons:
Mandatory mediation and arbitration do not apply to disagreements between the corporation and tenants or occupiers. Therefore, if the owner’s Motion was successful, the proceedings would have to be split (between the disputes involving tenants and disputes involving the owner). A multiplicity of proceedings should be avoided. As a result, mediation and arbitration were not required in this case, and the corporation’s Court Application was permitted to continue.
[Editorial Note: The Court of Appeal did not provide any guidance as to the type of dispute (between a condominium corporation and an owner) that requires mediation and arbitration under Section 132(4) of the Condominium Act, 1998. The Court of Appeal said that it was unnecessary to express any view on this issue, given the Court’s decision to allow the corporation’s Court Application to proceed for other reasons (namely, to avoid multiplicity of proceedings). So, we still do not have any appellate direction on the following question: What sort of disagreement (between a condominium corporation and an owner) is subject to mandatory mediation and arbitration?]