Good afternoon,
Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.
Cheung v. York Region Condominium Corporation No. 759, 2017 ONCA 633, is a condominium law oppression remedy decision. At issue was what a commercial condo board was permitted to do to address a lack of parking issue created by the over-use of common element parking spaces by one unit-owner's tenant (a busy restaurant). Notwithstanding the rather mundane issue in dispute, the court could not agree on the outcome, resulting in a split decision.
The majority (Justices Pardu and Benotto) held that a by-law which assigned four parking spots to each of the thirty-four unit owners (thereby prohibiting other unit owners from using those spaces) did not have the degree of permanence to amount to the creation of an exclusive use common element (the creation of an exclusive use common element is something that can only be done through a registered declaration). The majority agreed with and did not disturb the findings of the application judge, namely, that the by-law was reasonable and not oppressive.
In contrast, Justice Weiler, in dissent, held that although the application judge correctly held that a Corporation's declaration does not have to specifically authorize leasing of common elements, he erred in not examining the actual wording of the by-law to ascertain if it was valid. Justice Weiler was of the view that the by-law purported to lease the parking spaces on a permanent or potentially permanent basis, effectively creating exclusive use common element parking spaces. As exclusive use common elements can only be designated through the declaration, the by-law was invalid. In addition, the by-law was unreasonable because there was no evidence that leasing four parking spaces per unit owner was necessary to alleviate the parking problems and a finding that overflow parking was available on adjacent lands was flawed.
Other topics covered included commercial leases, family law, real property, personal injury and wrongful dismissal.
Have a great weekend.
ONTARIO COURT OF APPEAL SUMMARIES (JULY 31 – AUGUST 4, 2017)
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