The Condo Authority Tribunal’s decision in Rahman v. PSCC 779 is the first of its kind under the Tribunal’s expanded jurisdiction. The case provides a strong warning against condos seeking to unilaterally impose costs against unit owners.
The Tribunal held that it had authority to hear this matter – a dispute concerning parking and indemnification – pursuant to the Condo Act’s newly instituted Regulations.
In this case, the condo sought to prevent an owner from using the condo’s outdoor “handicap” (i.e., accessible) parking space. The condo argued that this parking location was meant for visitor parking only. The condo also argued that the owner’s “Accessible Parking Permit” from the province did not qualify him to use the “handicap” space.
The owner argued that he was entitled to park in the condo’s “handicap” parking space (which was distinct from visitor parking), as he suffered a disability impeding him from accessing his own parking units, as evidenced by his “Accessible Parking Permit”. The owner also argued that the condo’s compliance enforcement amounted to harassment.
The Tribunal held that to conflate the “handicap” parking with the visitor parking would deny condo owners any accessible parking. The owner was parking in a “handicap” parking space as opposed to a visitor parking space. The “Accessible Parking Permit” demonstrated a disability-related need to use the “handicap” parking. In assessing the owner’s disability, the Tribunal favoured the owner’s doctor’s letter over the condo’s photographs of the owner, which provided no context or medical opinion. The owner was complying with the condo’s declaration when using the “handicap” parking. The condo was not entitled to rely on the indemnification provisions in its declaration to recover its enforcement costs. Based on Amlani v. YCC 473, it was improper for the condo to attempt to collect its legal costs and fees by way of lien and notice of sale (without a court order).
Therefore, the Tribunal found that the owner was entitled to use the “handicap” parking space and that the condo’s compliance enforcement costs were invalid. The Tribunal ordered the condo to: 1) provide the owner an accounting of its indemnification costs (including for legal fees); 2) immediately cease its compliance enforcement efforts (including the continued lien registration and notice of sale); 3) reimburse the owner, as the successful party, his $200 filing costs; and 4) pay the owner $1,500 as recompense for the time, trouble and expense it caused him.