Many of us have experienced a situation with a dissatisfied owner eagerly identifying technical (and insignificant) breaches of the Condominium Act. Whether it be a missing check box on a Notice of Meeting form (don’t we all just love those forms?!) or an AGM held one week after the 6-month deadline, owners can be quick to point out these types of errors and demand some type of remedy.
While condo corporations are indeed required to comply with the Act, owners should be mindful that mere technical breaches of the Act which do not give rise to any substantive harm do not justify running off to court.
The Court of Appeal recently released a decision which confirms that not all technical breaches of the Condominium Act require the court to order a remedy. The Court will not just review whether there was a breach; but rather, whether there is any actual prejudice or harm to the applicant in considering whether to grant any relief.
The remedial provisions of the Condominium Act found in sections 130, 134, and 135 which permit owners to commence applications for the appointment of an inspector, enforce compliance, and grant relief from oppression, respectively, against the Corporation are permissive. The court has discretion in determining whether to grant a remedy.
The judge in the lower court decision described the case as follows: “The entire Application is a lengthy list of what appear to be formalistic errors made by the Condo Corp board that amount to little in substance.”
The issues included a failure of the candidates to disclose that they were not registered owners (though they were all well known in the building and were closely affiliated with registered owners (i.e. child of registered owner, etc.)) and a failure to conduct audits for prior years (an audit was underway for the immediately preceding year).
The owner was seeking the removal of directors, appointment of an inspector, and relief from oppressive conduct.
The lower court found that there really was no prejudice or harm to the owner and declined to order the numerous remedies that were being sought.
The Court of Appeal confirmed that the lower court “reasonably concluded that, without evidence of any harm or prejudice to the appellant, there was no basis for an oppression remedy or for any other remedy.”
