08/28/2020 – Jurisdiction Ontario
Part 72 published on 01/12/2020
Condominium corporation unreasonably refused to grandfather owner in relation to new “no smoking” rule. Condominium corporation also not able to add corporation’s legal costs to owner’s common expenses.
The lower Court held that Mr. Amlani was entitled to be grandfathered from the corporation’s “no smoking” Rule “provided that the dissipation of the smell of smoke from the unit can be reduced to a level at which it does not disturb other residents of the Corporation”. The lower Court also held that the condominium corporation could not collect enforcement costs by adding those amounts to the Mr. Amlani’s common expenses. [See Condo Cases Across Canada, Part 69, March 2020.]
The condominium corporation appealed to the Divisional Court. The Divisional Court agreed with the lower Court and dismissed the appeal. The Divisional Court said:
Section 7(5) of the (Condominium Act, 1998) provides that a declaration cannot be inconsistent with the Act. The application judge found, the interpretation of Article XI (namely the indemnification provision in the Declaration) advanced by the Corporation contravenes s. 134 (5) of the Act because the costs it claimed related to compliance and enforcement costs and were not embodied in a court order. An interpretation that contravenes a statutory provision, he found, is, by definition, unreasonable. The legal accounts for which the corporation claimed indemnity described the services as relating to the “enforcement of the Corporation’s Declaration and Rules” and not as relating to the protection of any common elements.
In the circumstances, there are no palpable and overriding errors to justify overturning the finding that the appellant could not rely upon its indemnity provision to charge Mr. Amlani with the legal fees it was seeking.