A recent decision from the Ontario Superior Court, Beswick et al. v. York Region Standard Condominium Corporation No. 1175, has seemingly increased the threshold of what is needed to demonstrate an entitlement to the oppression remedy under s. 135 of the Condominium Act (the “Act”).
Briefly, the facts of the case are as follows:
The Corporation is comprised of 470 high-rise residential units, and 61 townhouse units. The applicants were a group of townhouse unit owners, who brought an application against the Corporation for oppression and other declaratory relief on the grounds that the Board of Directors, which was made up of predominantly high-rise unit owners, had treated the townhouse unit owners in an oppressive manner as a result of charging improper expenses to the townhouse unit owners and failure to provide proper notice under Section 92 of the Act.
The Corporation charged the applicants for the consumption of water, but did not base the charges on their individual meters as required by the Declaration, charged the applicants for landscaping and snow removal on the front verandas and gardens and also charged the applicants for work relating to the replacement of the exclusive-use steps and interlocking of each of the applicants townhouse units. The work was done by the Corporation without providing the unit owners with prior notice of the unit owner’s obligation to repair their exclusive use common elements at their own cost, as required by Section 92 of the Act.
The applicants were only advised that they were responsible for the cost of the replacement only after the work had been completed.
The Court focused largely on the Corporation’s failure to provide the owners with adequate notice to complete the work themselves. The Court found, at paragraph 25:
Without such notice being given, and without the unit owners being given the opportunity to obtain their own quotes and do their own work, the unit owners should not be held responsible retroactively for the costs of the repairs.
The Court further found that the retroactive water charges that had been improperly charged pursuant to the Corporation’s Declaration were the responsibility of the condominium corporation, and that the landscaping and snow removal responsibilities were also, in fact, the condominium’s responsibility.
Despite acknowledging the myriad of actions wrongly taken by the corporation, the Court did not find oppression under Section 135 of the Act.
It was noted that to demonstrate entitlement to the oppression remedy, the applicants must demonstrate:
- the Corporation failed to meet their reasonable expectations; and
- the Corporation’s conduct was or threatened to be oppressive or unfairly prejudicial to their interests.
While the Court ultimately found that the Board demonstrated poor and unprofessional management, deficient communication, poor record keeping, and had failed to properly adhere to the governing documents – the court did not equate these qualities to being unfairly prejudicial or oppression.
This decision appears to increase the threshold required for owners to prove entitlement to the oppression remedy under Section 135 of the Act. If improper notice, inappropriate charges and failure to comply with the governing documents does not equate to oppression – it begs the question, what does?