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Our firm recently had the pleasure of successfully representing two condominium corporations in two separate litigation proceedings, both dealing with parking issues in condominiums:

1) Cheung v. York Region Condominium Corporation No. 759, 2017 ONCA 633, which upheld 2016 ONSC 4236; and

2) Peel Condominium Corporation No. 315 v. Brampton (City), 2017 CanLII 61576 (Ont. O.M.B.).

1) Dim Sum Customers

At a commercial condominium corporation in Richmond Hill, a particular unit owner was using her 3 units to operate a highly popular Chinese restaurant, but the restaurant’s patrons were monopolizing the use of all of the condominium’s common element parking spaces.

Last year, the Ontario Superior Court of Justice held that the condominium was entitled to address the parking issue by enacting a by-law that authorized the condominium to lease certain parking spaces to certain unit owners, and ruled that it had not acted oppressively against the restaurant unit owner (our firm previously discussed this case here at Condocentric).

This summer, the Ontario Court of Appeal upheld the Superior Court’s decision in the condominium’s favour.

2) Temple Worshippers

At a commercial condominium corporation in Brampton, a particular unit owner had purchased 2 units and was beginning to use them as a religious place of worship (the “Temple”). The Temple’s worshippers were using almost all of the condominium’s common element parking spaces; even parking their vehicles in fire routes and impeding the loading bays of other units.

In order to legitimately operate as a place of worship, the Temple needed to apply for an exception to the performance standards of the City of Brampton’s zoning by-laws, which stipulated that there was an insufficient amount of parking spaces on the property for all of the Temple’s worshippers. The Temple made an application for a minor variance to the City of Brampton’s local Committee of Adjustment (the “COA”). The COA granted this minor variance and allowed the Temple to operate in their units at the condominium.

Due to the issues that arose from the Temple’s worshippers taking over the condominium’s parking spaces, the condominium appealed the COA’s granting of the minor variance to the Ontario Municipal Board (the “OMB”). At the OMB, we successfully argued that because the Temple had not sought prior approval from the condominium’s Board of Directors to make their application for a minor variance in the first place, the minor variance was invalid.

Under Section 45(1) of the Planning Act, R.S.O. 1990, c. P.13 (the “Planning Act”), only the owner of the property can bring an application for a minor variance to it. In a condominium corporation, the common elements are owned by all of the unit owners as tenants-in-common, and the elected Board of Directors has the exclusive authority to manage the common elements. We argued that because the Temple was only one of the many unit owners at the condominium, the Temple lacked the requisite legal standing to make the application to the COA.

At the OMB, the City of Brampton defended the COA’s decision to grant a minor variance to the Temple, and argued that any unit owner of a condominium corporation should be allowed to make an application for a minor variance to the common elements.

On September 11th 2017, the OMB agreed with the condominium, and ruled that because the Temple was not the only owner of the common elements, the Temple lacked the legal standing to make the minor variance application; therefore, the Temple’s minor variance was invalid. The OMB overruled the COA, and held:

[34] There is no dispute that the Temple can make application in relation to its two units. A question of legal authority arises where the use of its units as a place of worship necessitates an application which must, of necessity, involve the common elements. I cannot ignore the ownership structure of the condominium in applying s. 45(1) in this context. […]

[42] The dispute here arises from the fact that the application relates specifically to the 82 common element parking spaces and the input of other unit owners has not yet been solicited through the proper process before the Condo Board. […]

[43] If the evidence were that the Temple’s use of its units as proposed would not result in any parking use beyond the six common element parking spaces the Temple has use of, it may be possible to structure a variance in a manner that could avoid the legal standing issue raised here. […]

[44] However, the evidence here is uncontested that the Temple will routinely require use of more than six parking spaces. Furthermore, and most importantly, the evidence was that periodically, the Temple will likely require use of most, if not all, common element parking spaces for important events. […]

[45] I find that it remains necessary for the Temple to either seek written authorization from the Condo Board to make application for a variance or request that the Condo Board make the application directly as there is the potential for impacts on common elements of the condominium that the Condo Board has an exclusive duty to manage under the authority established by the Condominium Act, 1998 and the Declaration.

Without the minor variance, the Temple could not operate a place of worship at the condominium corporation.

Takeaways for Condos

While the restaurant case affirms the idea that a condominium corporation can enact a by-law that leases out portions of its common elements for the exclusive use of unit owners, the Temple case demonstrates that a condominium corporation can also proactively prevent a unit owner from changing how their unit is used in the first place too.

In both cases, the popularity of each owner’s units was ultimately their downfall. If the units were only being visited by a few patrons at a time, then the parking issues that required the condominium’s intervention might not have arisen at all. Although condominium corporations are typically glad to see their businesses and places of worship thrive, such runaway success cannot come at the detriment of the other unit owners of the condominium. As always, it is the collective interests of all the unit owners that must be protected by the Board.

By Victor Yee - November 2017
Hons. B.A., J.D.

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