On June 28th, 2021, the Condominium Authority Tribunal (CAT) dismissed a motion brought by a condominium corporation relating to an application initiated by a commercial unit owner, to challenge the validity of an amendment to declaration. The condominium corporation’s position was that the application brought by the unit owner was not within the jurisdiction of CAT.
What is interesting about this preliminary tribunal decision is that it confirms CAT has jurisdiction over matters involving an amendment to declaration where the subject matter of the amendment is one that relates to pets.
The unit owner bringing the application is objecting to the registered amendment to declaration on the basis that proper legal procedures had not been followed by the board.
Counsel for the applicant (unit owner) confirmed that the condominium corporation proceeded to register the amendment to declaration after the board passed a resolution approving the amendment, and after obtaining 80% consent of the units, but without calling an owners’ meeting to discuss the amendment.
Section 107 of the Condominium Act requires that certain steps be taken to amend a declaration on consent. One of the required steps is to call an owners’ meeting to discuss the amendment. Often a corporation may just add the discussion of the amendment to the agenda of an AGM or other owners’ meeting rather than calling a special meeting for that purpose – this is permissible. However, an owners’ meeting must take place to discuss the amendment even though there is no vote required at that meeting.
In reading the Order which dismissed the motion, reference was made to the applicant’s right to notice or vote. The consent process for an amendment to declaration is not a voting process, but rather, a consent process that can occur over time. This is an important distinction since owners who may be entitled to vote at a meeting may be different than owners who are entitled to consent to an amendment.
To be eligible to vote at an owners’ meeting, a unit owner is entitled to vote if they are on the corporation’s records at least 20 days before the meeting.
Amendments to declaration, on the other hand, require the consent of the registered owners of units (including parking and locker units).
It will be interesting to see the outcome of the hearing and whether this distinction will be made, its impact on the decision and how the tribunal will decide with respect to the missing procedural step.
