February 14, 2012 By:

A recent decision of the Ontario Superior Court of Justice (Peel Condominium Corp. No. 542 v. Gorgiev) reinforces the premise that where a Board of Directors acts reasonably in carrying out its duty to enforce the declaration, by-laws and rules, the Board will be supported by the Court.

The following are the details of the case:

Mr. Gorgiev purchased a unit in Peel Condominium Corporation No. 542 on June 25th, 2010. The condominium rules allow for two parking spaces; one in the garage and one on the driveway in front of the garage.

In May, 2011, Mr. Gorgiev requested but was denied permission from the Condominium Board to extend the patio stones located on an exclusive use common elements area in front of his house. The reason was to create a second outdoor parking space in the front yard.

Despite not having approval from the board to do so, Mr. Gorgiev started alterations to the common elements in July, 2011. On July 13th, 2011, Mr. Gorgiev advised the Board that he was unable to park his car in his garage (although he had been doing so for over a year) because he suffered from a mental disability resulting from a head injury received when he was a teenager. Mr. Gorgiev maintained that he was too claustrophobic to use his garage and needed a wider driveway to park two cars. In addition, Mr. Gorgiev advised he would bring an application to the Ontario Human Rights Tribunal because of his disability.

The Board agreed to consider his request for accommodation due to his disability on an immediate basis and requested information to substantiate his condition. Mr. Gorgiev did not provide any information regarding his condition other than a note from his general practitioner.

The board also requested that Mr. Gorgiev cease making any further changes to the Corporation's common elements without the Board's permission. Mr. Gorgiev was advised that if he failed to comply with the Board's request, the Corporation would hold him liable for all costs incurred.

Mr. Gorgiev ignored the Board and between August 9 and 11th the lawn was removed and a paved parking pad was installed on the common elements (despite repeated requests from the Corporation to cease and desist).

The Condominium Corporation submitted to the Court that Mr. Gorgiev failed to make a prima facie case of discrimination and failed to discontinue making changes to the common elements in breach of Section 98 of the Condominium Act.

The application of the Condominium Corporation was granted. Mr. Gorgiev was required to immediately restore the common elements he had modified to their original condition and to pay all costs incurred by the corporation in relation to restoring the common elements to their original condition. In addition, the court allowed the costs of restoration to be collected as common expenses against the unit.

The Court found that the Board had acted in good faith and in compliance with the Condominium Act. The ruling confirmed that the Court should accept a Board's decision unless it has acted capriciously or unreasonably and further, that the Court should not pronounce on the propriety of the condominium rules except in cases where the rule is clearly unreasonable.

The Declaration in this case was clear that "no alteration of any kind whatsoever shall be done in relation to the common elements, including any part thereof over which any owner has the exclusive use, except by the Corporation or with its prior written consent or as permitted by the by-laws or rules". The Court found that Mr. Gorgiev had not followed the appropriate procedure to obtain permission and had not provided sufficient medical information to allow either the court or the Board to consider his request based on medical necessity.

In addition, the Court considered whether there was discrimination based on human rights issues. In order to find discrimination necessary to defeat the Declaration, the Court found that the provision in the Declaration must have the effect of preventing the disabled person from residing in the unit. The person requesting accommodation based on a disability must do his or her part by taking reasonable steps to provide sufficient evidence to establish that accommodation is required. Although given ample time, Mr. Gorgiev did not provide sufficient medical information to support his disability nor did he pursue an application with the Human Rights Tribunal. And he didn't provide evidence to show that the required additional outdoor parking space was the only reasonable alternative available to him.

The Court provided the following succinct and informative reminder of the essential characteristics of condominium living and of the reasoning behind Section 17(3) of the Act which requires a condominium corporation to enforce the declaration and rules:

"These provisions are crucial to the orderly operation for condominium and for the protections of condominium residence owners and occupiers. Condominium residence owners are not at liberty to deal with the property in the same manner as the owner of a single-family residential dwelling. In return for advantages gained through common ownership of certain elements, some degree of control is given up. It is both the right and obligation of a residence owner to comply with Declaration, by-laws and rules of the Corporation."