Part 30 published on 01/05/10
Court orders owner to reinstate common elements
The owner had replaced an overhead garage door with a wall and a set of windows. The Court held that this was a common element modification requiring permission under Section 98 of the Condominium Act, 1998. The Court said that it is up to the board to decide whether or not to grant approval, but in doing so the Board must behave reasonably. The Court said that this requires that the board “keep an open mind in respect of an application”. The Court ordered that the changes be reversed, but added the following order:
“Before undertaking the work…, the condominium board shall consider in good faith a new, properly framed application by the respondents for retroactive permission for the alterations.”
[Editorial note: This decision sheds a little bit more light on the obligations of condominium boards, when exercising their statutory discretion. In doing so, condominium boards must “keep an open mind”. As long as the board’s decision is made “with an open mind”, the Court will uphold the board’s decision, even if the Court might have made a different decision.
Perhaps this idea of an “open mind” is simply part and parcel of the board’s obligation to act in “good faith”.]