31/01/2020 – Jurisdiction Ontario
Part 69 published on 01/03/2020
No prior notice to owners required before condominium corporation starts a Court claim
The condominium corporation issued a Notice of Action and then a Statement of Claim against several parties, including the corporation’s property manager (for alleged breaches of the manager’s obligations under the management agreement). The manager argued that the claim was a nullity for failure to comply with the notice requirements contained in Section 23 of the Condominium Act and moved for dismissal of the claim. The lower Court dismissed the Manager’s motion. [See Condo Cases Across Canada, Part 66, June 2019.]
The Manager appealed, and the appeal was dismissed. The Court of Appeal said:
I conclude that this action is not a nullity. This court’s decision in Medhurst should be overruled as it has been attenuated by subsequent jurisprudence and generates harsh effects unconnected to the purposes underlying the Act. An application of the proper principles leads me to conclude that regardless of whether or not the condominium corporation complied with s. 23(2) of the Act, this action is not a nullity.
…
In the particular circumstances of this case, I conclude that even if the condominium corporation has failed to comply with this provision, it is only a procedural irregularity that was cured. This non-compliance does not entitle the appellant to summary judgment. In this case, it is not the condominium owners themselves who assert non-compliance with the notice requirement. Further, the condominium owners were provided with a synopsis of the lawsuit that outlined the general nature of the action shortly after the notice of action had been issued. It also included a draft statement of claim. Although not required by the Act, the condominium owners subsequently authorized the filing of the statement of claim. In the circumstances, no perceptible prejudice resulted from the purported failure.
York Region Standard Condominium Corporation No 1206 v 520 Steeles Developments Inc