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Condominiums - Declarations. Metropolitan Toronto Condominium Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan Toronto Condominium Corporation No. 590
In Metropolitan Toronto Condominium Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan Toronto Condominium Corporation No. 590 (Ont CA, 2020) the Court of Appeal heard an appeal of a Condominium Act, 1998 application to amend the condo's Declaration. It granted the application to amend for the Declaration's "error or inconsistency" under s.109(3) for failure to address who was responsible for certain damage (here, chimney flues), the condo corporation through it's responsibility for common elements - or individual owners:[27] Whether confusion about maintenance and repair would constitute an inconsistency was addressed in one of the authorities that was provided to the application judge. In Carleton Condominium Corp. No. 26 v. Nicholson, [2009] O.J. No. 1831, 2009 CarswellOnt 2640 (S.C.J.), aff’d 2010 ONCA 80, Power J. concluded that apparent conflict or confusion regarding the obligations to maintain and repair as between the condominium corporation and the unit owners was an “error or inconsistency” as those terms are used in the Condominium Act.
[28] The purpose of the Declaration is to clearly delineate the responsibilities of the condominium corporation, on the one hand, and the unit owners, on the other. Here that purpose is not achieved. Sections 22 and 23 are inconsistent, or at the very least unclear, in the obligations that they impose.
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