Megan MacKay J.D., B.Sc. Shibley Righton LLP
The Condominium Act
The Oppression Remedy Comes into Focus Decisions on Unit Owners Applying for Relief From Oppression Give Us a Better Idea of Exactly When Relief is Available and What Remedy Might Be Granted The Test Courts will only intervene if strict legal criteria are met. The two-pronged test for oppression requires applicants to establish: • First, that the condominium corporation’s conduct breached their reasonable expectations, • Second, that the violation amounts to oppression, unfair prejudice or unfair disregard.
In applications for relief from oppression, the court decides if the complained-of conduct is oppressive. Judges are authorized to make any order they deem proper according to the situation. While that sounds like a pretty sweeping set of powers, in practice, Ontario judges have only used this power to grant remedies where oppression has been clearly established.
The language of section 135 itself limits the kind of relief that can be obtained. Tenants should keep in mind that the section only allows applications by “an owner, a corporation, a declarant or a mortgagee of a unit,” which means that tenants cannot seek a remedy for oppression. A unit owner’s recent attempt to claim against individual board members for oppression failed
Reasonable expectations are judged on an objective basis, which takes us out of the realm of personal preferences and individual wish lists.
because directors are not listed as a party against whom oppression can be claimed. In recent years, unit owners have begun applying for relief from oppression in great numbers. These decisions are giving legal observers a better idea of exactly when relief is available and if so, what remedy might be granted. Decisions are fact-specific and turn on the context of a particular case. Looking at cases where courts have found conduct to be oppressive, the common theme seems to be a conscious act by the board against a unit owner; inadvertent or unknowing unfairness will generally not qualify. A classic example came in the 2015 case of Wu v. Peel Condominium Corporation No. 245, when we acted for the owner of a top-floor condominium unit badly affected by noise and vibration of the building’s mechanical equipment. Despite commissioning tests and acknowledging the problem, the corporation took no signifiCONDOVOICE SUMMER 2020
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ILLUSTRATION BY JASON SCHNEIDER
A number of recent judicial decisions are beginning to bring the Condominium Act’s oppression remedy into focus. Borrowed from corporate law, the oppression remedy can be found at s. 135 of Ontario’s Condominium Act, 1998. It is designed to guard against unfair treatment. The section allows the owner of a condominium unit, or a mortgagee, developer, or condominium corporation, to apply directly to the Ontario Superior Court of Justice for relief. This is unusual because the Condominium Act directs many disputes to alternative dispute resolution, whether via mediation, arbitration or at the recently launched Condominium Authority Tribunal.