|CONDOCENTRIC: Selective Enforcement of Condominium Rules|
Subsection 17(3) of the Condominium Act, 1998 (the “Act”) puts an onus on condominium Boards to “take all reasonable steps to ensure that the owners, the occupiers of units, the lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules.”
Once in a while, Boards and/or property managers face allegations that they have “selectively” enforced the condominium rules. The argument is that compliance by a certain individual should not be required, since to do so would result in unfairness or discrimination as the rule (or others) was permitted to be broken in the past. What should a Board or property manager do when someone accuses them of selective enforcement? Does the fact that there has been selective enforcement, in and of itself, mean that the wrongdoer is exempt from having to obey the rules?
This question is not simply an academic one, as—given the practical realities of trying to enforce rules in a community often numbering in the hundreds—there are almost always cases where violations of the rules go unpunished.
This issue was considered in the recent (January 5, 2012) Ontario Superior Court of Justice decision in Durham Standard Condominium Corporation v. James A. Morton, 2012 CarswellOnt 77). This case dealt with a unit owner who exceeded the maximum number (i.e. two) of dogs allowed per unit; whose dogs were heavier than the maximum weight (20 kilograms) allowed; and who refused to put his dogs on a leash—all of which were in contravention of the Corporation’s declaration, by-laws, and/or rules. There was also evidence that on a number of occasions, the unit owner’s dogs had jumped up on, or had frightened, residents of the Corporation. The Corporation deemed both dogs to be a nuisance and a danger to the residents of the Corporation, and, pursuant to the declaration, gave the unit owner written notice that he had to remove the dogs from the Corporation within two (2) weeks. The unit owner refused to do so, and the Corporation brought an application for a compliance Order pursuant to Sections 117 and 134 of the Act.
In his responding materials, the unit owner alleged that the Board was discriminating against him, given that there were numerous instances (which the unit owner documented with colour photographs and other evidence)—many involving the pet rules—where the Board had chosen not to enforce the declaration, by-laws, and/or rules.
The Corporation filed evidence admitting instances where the declaration, by-laws and/or rules had not been enforced in relation to pets. Indeed, the Corporation acknowledged that it was aware of other owners who owned more than one (1) pet. The Corporation, however, argued that it had chosen to enforce the pet rules based upon “complaints,” and that to date, the only complaints had been about the respondent’s dogs.
In his decision, Justice Glass referred to a number of previous decisions involving the allegedly selective enforcement of rules. Justice Glass stated that the standard of review of a decision of the Board by the Court is not whether the Court would have made a different decision. Rather, “the reviewing court considers the reasonableness of the decision of the board as well as whether it was a decision reached capriciously” (emphasis added).
Justice Glass referred favourably to the Ontario Court of Appeal decision in City of Toronto v. Polai,  1 O.R. 483. In Polai, the Court found that while there had been discriminatory enforcement of a municipal by-law, nonetheless, the “public interest” in the continued enforcement of the by-law should prevail over the private interests of one who flouted the by-law (or, as Justice Gray put it, “the interests of the whole took precedence over a single person”). Applying Polai to the facts before him, Justice Glass ordered that the respondent had to permanently remove his dogs from the Corporation. In particular, Justice Glass stated as follows:
The materials filed by the Applicant here reveal that the condominium corporation appears to be acting as many municipalities do with their by-laws. That is, they act reactively rather than proactively. With respect to the Durham Standard Condominium Corporation, the board has only had complaints about Mr. Morton and his dogs.
…The board has received complaints from people who express fear of Mr. Morton’s dogs jumping up towards them. There is a potential danger of injury to others.
What does the Morton decision mean for condominium Boards and property managers?
Condominium Boards and property managers would do well to note the following:
· Condominium rules should always, insofar as is reasonably possible, be enforced uniformly.
· The fact that there has been allegedly selective enforcement, however, does not automatically mean that the rules cannot be enforced against a particular individual. For one thing, a reviewing Court will consider whether the Board’s decision was reasonable and/or capricious.
· In certain circumstances, the interests of the entire condominium community at large may take precedence over the interests of a single individual—even where there has been selective enforcement of a condominium rule.
· Where there has been allegedly selective enforcement, a Court will consider whether there is nonetheless a principled basis for the selective enforcement (e.g. basing enforcement on complaints only, rather than on any and every instance of a violation of the rule).
· While condominium Boards and property managers should always strive to act proactively, rather than reactively, the fact that there has only been reactive enforcement to date is not necessarily fatal.
By: Edmund K. Chan- April 2012
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