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Disability - Parking. Peel Standard Condominium Corp. No. 779 v Rahman
In Peel Standard Condominium Corp. No. 779 v Rahman (Div Court, 2023) the Divisional Court considered a condo corporation appeal [under Condominium Act, 1998, s.1.46] from a decision of the Condominium Appeal Tribunal, here where the trbunal ordered that the respondent was "entitled to park in designated accessible parking spaces located outside the appellant’s building, and awarding ancillary relief (2021 ONCAT 13)".
In these quotes the court considers the underlying issue of access to disabled parking in a condominium, and the grief that the disabled person had to go through to establish their rights:[1] The appellant appeals from the decision of Member Laurie Sanford of the Condominium Authority Tribunal (the “Tribunal”) dated February 16, 2021, finding that the respondent, Mr Rahman, is entitled to park in designated accessible parking spaces located outside the appellant’s building, and awarding ancillary relief (2021 ONCAT 13).
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[3] The substantive issue before the Tribunal was focused. Mr Rahman has a permit from the Ontario Ministry of Transportation entitling him to use parking spaces designated for disabled persons. The appellant has such designated spaces outside its building, and Mr Rahman had been parking in those spaces. The appellant has taken the position that Mr Rahman is not entitled to park in these spaces because he has two parking spaces associated with his condominium unit in the building’s underground parking and that he was required to use those parking spaces unless Mr Rahman satisfies the appellant that he needs to use the outdoor accessible parking rather than his assigned underground parking spaces.
[4] Mr Rahman, for his part takes the position that he does not have to establish his need for accessible parking to the satisfaction of the appellant, given that he has a permit from the Ministry of Transportation. The underground parking does not meet Building Code requirements for accessible parking and is not designated as such. The appellant’s Declaration does not preclude Mr Rahman from parking in designated accessible parking in front of the building, and he takes the position that he is entitled to do so without providing evidence of his needs to the appellant.
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Issue 4: The Chargeback Levy
[34] The appellant “charged back” to Mr Rahman its enforcement costs on the parking issue, including legal fees. It was wrong on the parking issue and should not have taken the enforcement steps that it did. The Tribunal so found and directed that the chargebacks not be collected by the appellant from Mr Rahman.
[35] This conclusion – that the appellant is not entitled to charge back enforcement costs when it has been wrong, all along, on the enforcement issue – is correct in law and surely is a matter of simple common sense. The onus to prove illegality of the chargebacks does not enter into the analysis: the error was the appellant’s, and the appellant will bear its own enforcement costs. Effectively, this means that all unitholders in the appellant – other than Mr Rahman – shall share the cost of the improper enforcement steps – and unitholders may well question those responsible for the decisions taken as to why their money was wasted in this fashion. I see no error in law, or reversal of the onus of proof, in respect to this issue, and would not give effect to this ground of appeal.
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Summary
[44] The gravamen of the Tribunal’s decision is that where a unitholder has a disabled parking permit from an authority with jurisdiction to issue the permit, it is not for a Condominium Board to question the permit-holder’s entitlement to use accessible parking. There is no issue in this case about which accessible parking a unitholder should park in: the only designated accessible parking are the exterior spots in which Mr Rahman was parking. This analysis discloses no error in law and is manifestly reasonable in fact. The grounds of appeal – jurisdictional, procedural and technical – do not undercut the substantive reasonableness of the decision below. I would dismiss the appeal.
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