Common elements are those parts of a condo complex that belong to all owners. If someone purchases a condo, they become part of a larger collective of owners who all share an interest in the condo corporation and its operations. These documents are instrumental in establishing rules for the unit owners, how the condo corporation conducts its business and the management of the condo's affairs.

On October 2, 2020, the powers of the Condominium Authority Tribunal (the “CAT”) were expanded to include the types of disputes it can hear under the Condominium Act, 1998 (the “Act”). The Condominium Act is an Ontario provincial legislation that regulates most aspects of condo formation, purchasing, living in, and governance. Now the CAT can hear disputes concerning parking, storage, and vehicles, among other things. For example, this recent case, Rahman v Peel Standard Condominium Corporation No. 779, was decided under the CAT’s expanded jurisdiction. In this case, the CAT interpreted the condominium corporation’s Declaration with respect to parking.

For the reasons outlined below, this case makes it clear that a condo corporation cannot unilaterally and arbitrarily impose costs incurred to enforce compliance with its Declaration as “common expenses” without a court order.

Mr. Rahman was the owner of a condo unit and two parking spots in the condominium. Due to a disability, Mr. Rahman was unable to use either of his parking spots and instead, parked in one of the accessible parking spots in the outdoor lot. Whenever he parked in an accessible spot, he always displayed the Accessible Parking Pass that he obtained lawfully from the Province of Ontario. Mr. Rahman’s disability was supported by a letter from his doctor which also established that his disability qualified his use of an Accessible Parking Pass. At the hearing, Mr. Rahman’s position was that the condo’s Declaration entitled him to use the accessible parking spots available and that he wasn't asking for the condo to accommodate him.

The condo took the position that Mr. Rahman breached the Declaration because he parked in visitor, not accessible parking and that he failed to provide sufficient evidence to justify his use of accessible parking. As such, the condo commenced legal actions for costs it incurred to enforce Mr. Rahman’s compliance with its Declaration, including the registration of a lien on the title to Mr. Rahman’s unit and effecting a Notice of Sale, basically threatening eviction from the condominium.

These enforcement actions were undertaken without a court order, which violated the rules of the Condominium Act. Under section 134(5) of the Act, a court order is required before a condo corporation’s legal enforcement costs can be added to a unitholder’s common expenses. The condo corporation not only added its enforcement costs to Mr. Rahman’s common expenses, but they did so by way of a lien and a notice of sale in violation of this section. The CAT disagreed with the condo, finding that Mr. Rahman was in his rights to park in an accessible spot and that the only accessible spot available to owners was where Mr. Rahman parked. As a result, Mr. Rahman was not in violation of the condo’s Declaration and the condo corporation was ordered to stop any enforcement action it undertook. Additionally, The CAT determined that these actions were aggressive and amounted to harassment, for which Mr. Rahman was awarded $1,500.

WHY THIS CASE MATTERS

With the expanded powers and jurisdiction of the CAT, parties may not have to resort to costly private mediation, arbitration, or the Court, to obtain relief in condo disputes. The expansion of powers will allow for more disputes to be heard by the CAT and, potentially, in a timelier manner.

In this case, the CAT is sending a message to condo corporations that they cannot unilaterally and arbitrarily impose costs of enforcement on a unitholder under the guise of “common expenses” without a court order. The Act does not serve to protect one party at the expense of another, and it cannot be used to widen the inherent power imbalance between a condo corporation and its unit owners.

However, it sets precedent for any future disputes and is game-changing for the relationship between a unitholder and a condominium in Ontario.