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Condominiums - Oppression. Kikites v. York Condominium Corporation No. 382
In Kikites v. York Condominium Corporation No. 382 (Ont CA, 2023) the Court of Appeal considered an appeal from an application against the condo corporation (only, no neighbours where named as parties) [under s.134 (compliance orders) and s.135 (oppression remedy)] of the Condominium Act, 1998 here involving noise complaints.
The appellant had advocated [para 15 and 41] that the corporation "install a raised and padded floor" in the upstairs unit to mitigate noise, which gave rise to this basic remedial jurisdictional issue:[43] The appellant also submits that the application judge erred in concluding that he could not make an order for the renovation or remediation of Ms. Ceronja’s unit because she had not been made a party to the proceedings. I do not accept this submission.
[44] Again, this goes back to the heart of the matter before the application judge. The appellant sought redress against the Corporation through the oppression remedy. Although Ms. Ceronja was examined as a non-party, she did not participate in the application.
[45] The trial judge thoroughly addressed this issue in paras. 20-22 of his reasons:20 ... From an engineering point of view that may well be a remedy, but from a legal point of view it is a problematic suggestion. While the condominium rules provide that each unit owner deserves quiet enjoyment of their property, they also provide limitations to the condominium corporation's authority.
21 Specifically, the corporation has ownership and control over the common elements and what is usually called the 'envelope' of each unit, but it has no right in or authority over the interior of any privately owned unit. The Respondent is not in a position to renovate Ms. Ceronja's unit and install new flooring. If that were to be the remedy, Ms. Ceronja would have had to be a party to the Application. While I understand why the Applicant may not have been enthusiastic about drawing Ms. Ceronja into this legal dispute, and I would not want to hazard a guess as to what would have been the result had he done so, the fact is that at present the court is left with no remedy for his complaint.
22 The condominium corporation - the one and only Respondent before me - has done what it could and has not been oppressive in its conduct. It is not in a position, and cannot be expected, to either do internal renovations to another unit owner's unit. And given the conflicting sound engineering evidence and the fact that the noise is non-bothersome all day long, the Respondent is not in a position to compel another unit owner to renovate her unit. In any case, the Court certainly would not be in a position to order such a remedy without fulsome participation and legal submissions from that unit owner. [46] I see no error in the application judge’s approach. . Kikites v. York Condominium Corporation No. 382
In Kikites v. York Condominium Corporation No. 382 (Ont CA, 2023) the Court of Appeal considered an appeal from an application against the condo corporation (only, no neighbours where named as parties) [under s.134 (compliance orders) and s.135 (oppression remedy)] of the Condominium Act, 1998 here involving noise complaints. In these quotes the court considered the statutory oppression remedies:(2) The Oppression Remedy
(a) The Test for Oppression
[29] The oppression remedy, already described above, is found in s. 135 of the Act, which provides:(1) Oppression remedy
135(1) An owner, a corporation, a declarant or a mortgagee of a unit may make an application to the Superior Court of Justice for an order under this section.
(2) Grounds for order
(2) On an application, if the court determines that the conduct of an owner, a corporation, a declarant or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant, it may make an order to rectify the matter.
(3) Contents of order
(3) On an application, the judge may make any order the judge deems proper including,
(a) an order prohibiting the conduct referred to in the application; and
(b) an order requiring the payment of compensation. [Emphasis added.] [30] This court stated the test for oppression in Mohamoud v. Carleton Condominium Corporation No. 25, 2021 ONCA 191, 13 B.L.R. (6th) 43, another case involving a condominium corporation’s response to a noise complaint. As the court stated at para. 8:Under s. 135(2) of the Act, the court must determine whether the impugned conduct is, or threatens to be, oppressive or unfairly prejudicial to the applicant or unfairly disregards their interests. The test under s. 135(2) has two prongs. First, the court must assess whether there has been a breach to the claimant’s reasonable expectations. If the answer is yes, the court must then go on to consider whether the conduct complained of amounts to oppression, unfair prejudice, or unfair disregard of the relevant interest: Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, 285 O.A.C. 372, at paras. 5-6; 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, 61 B.L.R. (5th) 173, at para. 29. [Emphasis added.] [31] In applying this test, deference is afforded to the decisions of condominium boards. In 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, 61 B.L.R. (5th) 173, Hoy A.C.J.O said, at para. 53:[T]he first question for a court reviewing a condominium board’s decision is whether the directors acted honestly and in good faith and exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. If they did, then the board’s balancing of the interests of a complainant under s. 135 of the Act against competing concerns should be accorded deference. The question in such circumstances is not whether a reviewing court would have reached the same decision as the board. Rather, it is whether the board reached a decision that was within a range of reasonable choices. If it did, then it cannot be said to have unfairly disregarded the interests of a complainant. [Emphasis added.] . LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046
In LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046 (Ont CA, 2021) the Court of Appeal considered the test for oppression under the Condominium Act, 1998:(a) Application of the Test for Oppression
[13] First, the appellant asserts that the application judge applied the wrong legal test for the oppression remedy under the Condominium Act by focusing on whether the respondent’s conduct was reasonable and whether the business judgment rule applied.
[14] We do not accept that the application judge applied the wrong test. As conceded by the appellant, she correctly identified the appropriate two-pronged test for oppression earlier in her reasons. In that regard, see Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, 285 O.A.C. 372, at para. 6. She headed her analysis of the parking garage negotiations: “Was MTCC Oppressive in Its Conduct of the Parking Garage Negotiations with LMC?” indicating that she knew to apply the same oppression analysis to the issue of the negotiations.
[15] We are satisfied that the application judge clearly understood and applied the correct test. Although it would have been preferable for her to have used the term “reasonable expectations” in her discussion of the parking negotiations, she was responding to the terminology used by the parties and to the arguments as framed by them. In addition, in relying on the business judgment rule, she correctly applied this court’s decision in 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375 and examined the context of the respondent’s decision-making. As stated by Hoy A.C.J.O (as she then was) at para. 53 of that decision:Therefore, to summarize, the first question for a court reviewing a condominium board’s decision is whether the directors acted honestly and in good faith and exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. If they did, then the board’s balancing of the interests of a complainant under s. 135 of the Act against competing concerns should be accorded deference. The question in such circumstances is not whether a reviewing court would have reached the same decision as the board. Rather, it is whether the board reached a decision that was within a range of reasonable choices. If it did, then it cannot be said to have unfairly disregarded the interests of a complainant. [16] In this case, the application judge concluded that there was no evidence of bad faith or oppressive conduct and that the respondent had acted reasonably. She accordingly applied deference to the respondent’s balancing of the interests of the appellant with those of the other unitholders. We see no error. . Mohamoud v. Carleton Condominium Corporation No. 25
In Mohamoud v. Carleton Condominium Corporation No. 25 (Ont CA, 2021) the Court of Appeal set out the test for oppression under s.135 of the Condominium Act, 1998:[8] Under s. 135(2) of the Act, the court must determine whether the impugned conduct is, or threatens to be, oppressive or unfairly prejudicial to the applicant or unfairly disregards their interests. The test under s. 135(2) has two prongs. First, the court must assess whether there has been a breach to the claimant’s reasonable expectations. If the answer is yes, the court must then go on to consider whether the conduct complained of amounts to oppression, unfair prejudice, or unfair disregard of the relevant interest: Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, 285 O.A.C. 372, at paras. 5-6; 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, 61 B.L.R. (5th) 173, at para. 29. . Amlani v. YYC 473
In Amlani v. YYC 473 (Div Ct, 2020) the Divisional Court identifies a leading case on the oppression provisions of s.135(2) of the Condominium Act:[29] The application judge correctly stated the legal test for oppression under s. 135(2) of the Act and applied the leading case, BCE Inc., Re, 2008 SCC 560, as well as several recent condominium oppression cases. The application of the oppression remedy is based on findings of fact and the exercise of discretion by the Court.
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