Under the regime of divided co-ownership, the rights of the many
sometimes outweigh the rights of the few when those rights
conflict. This is the lesson to be drawn from the Court of
Appeal's well-reasoned decision Bourbonnais et al c. 9168-3615 Québec inc.
et al (PDF available in French) handed down earlier this
week in our client's favour.
The appeal basically consisted of determining the scope of a
deed of correction that was passed by the requisite majority of the
co-owners at a duly-held meeting. The deed corrected a second
declaration of co-ownership (usually referred to as a concurrent
declaration of co-ownership) that was supposed to transform and
govern one of the units initially created in the project's
first phase. Indeed, this second declaration had inadvertently been
published for all of the units instead of just for the unit in
In the first instance, Judge Corriveau of the Superior Court
recognized that the deed of correction made the second declaration
that was initially problematical unenforceable against the
appellants, which logically should have settled this case's
fate. Still, the appellants were dissatisfied with this ruling and
asked that not only the deed of correction be stricken, but that
the second declaration be stricken as well.
The Court of Appeal dismissed the appellants' motion to
strike. The trial judge's decision was well founded in fact and
in law. The decision made by the majority of the co-owners was
indeed a logical and practical solution.
The Court of Appeal points out, and with good reason, that by
failing to challenge the trial judge's finding of
unenforceability, the appellants "recognized the validity
of the deed of correction, per se, and the assembly of
co-owners' power to adopt it" (par. 41).
In conclusion, it rightfully stated one of the cardinal
principles of divided co-ownership:
"[TRANSLATION]  Remember that the particular form of
ownership that is divided co-ownership limits the classic ownership
right of each divided owner, a point that Judge Forget emphasized
in Société d'habitation et de
développement de Montréal v. Bergeron [1996
It can undoubtedly be argued that the rights of divided owners
are less broad that those of sole owners: they are limited by law
and by the declaration of co-ownership. I can easily imagine that
the rights of divided owners must, in some cases, yield to
the rights of the many, in this case the syndicate, but only if
these rights conflict [...]. (emphasis added)
 The same holds in this case, where appellant's motion
to strike conflicts with the rights of the group that convened an
assembly of co-owners, where it opted for another solution to deal
with the inscription error of the second declaration, which is
homogenous for all co-owners."
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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