Navigating Capacity and Compliance: Lessons from YRCC 570 v. Edery

“…a rather unique decision for its utilization of the Condominium Act to deal with issues of abuse and mistreatment of a vulnerable older adult”[1]

Perhaps not the intent, but the Ontario Superior Court’s recent decision in York Region Condominium Corporation No. 570 v. Edery (2025 ONSC 2166) highlights the legal and ethical complexities that can arise when a condominium corporation is faced with concerns about an elderly unit owner’s capacity, the conduct of a resident in their unit, and disputes involving competing powers of attorney.  Although such issues are not often at the forefront of condominium cases, this matter stands out for the unusual involvement of multiple substitute decision-makers and the Office of the Public Guardian and Trustee (OPGT). It also highlights the importance of effective Board governance, the responsibilities of property management, the need for clear, reliable evidence when navigating questions of capacity and authority, and, in this case at least, patience as the court finds its way.

Summary

York Region Condominium Corporation No. 570 (“YRCC 570” or the “Corporation”) commenced an application under Section 134 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”) seeking an order for compliance, as well as prohibiting one of the Respondents, Malka Renee Edery (“Renee”) from occupying or visiting a Unit at YRCC 570 owned by her mother (the Respondent, Kathryn Edery), as a result of her dangerous conduct.

The facts of the case were that Kathryn had purchased the Unit and lived there without issue since 2020 until July 2023 when her daughter, Renee, moved in with her.  For some time, Kathryn has and continues to suffer from Alzheimer’s disease and was deemed by her physician incapable of managing her property and personal care. In July 2023, prior to Renee moving into the Unit, Kathryn appointed her other daughters, Esther Ohayon (“Esther”) and Joyce Kadoch (“Joyce”), as her powers of attorney for property and personal care.

Almost immediately after Renee moved in to the Unit, her presence resulted in a significant disruption to those around her.  The Corporation alleged that Renee had engaged in a campaign of harassment and intimidation towards property management. Specifically, the Corporation adduced evidence that, on multiple occasions, Renee followed, photographed, and harassed YRCC 570’s property manager, as well as made repeated, unfounded accusations of misconduct and elder abuse against her. Renee’s actions towards staff and management were presented as a contravention of Sections 117 of the Act, and as conduct that created potential liability under Ontario’s Occupational Health and Safety Act.

The evidence also suggested elder abuse by Renee.  Specifically, YRCC 570 adduced evidence that Renee had repeatedly been impersonating Kathryn in correspondence, that she had relegated Kathryn to the smaller bedroom (notwithstanding that this was Kathryn’s home and she had previously used the main bedroom), that she had installed cameras throughout the unit – including in Kathryn’s bedroom, and that Kathryn was becoming increasingly isolated.  

To further complicate the proceedings, approximately two weeks before the hearing of the Application (which had already been adjourned on two occasions so as to allow Renee the opportunity to retain counsel and reply), Renee produced new powers of attorney (“POAs”) dated February 6, 2025, purporting to revoke the previous appointments of her sisters as substitute decision-makers for Kathryn. These documents were executed despite ongoing concerns and evidence relating to Kathryn’s capacity to validly execute these documents.

In light of these developments and the surrounding concerns, a case conference was convened, and Justice Fraser directed that the application materials be served on the Office of the Public Guardian and Trustee (“OPGT”), recognizing the seriousness of the capacity issues and the risk of undue influence.  However, the OPGT ultimately chose not to become involved, noting the many family members already involved to advance Kathryn’s interests.

Ultimately, the Application hearing proceeded before Justice Fraser in March 2025.

In considering whether the newly executed POAs should be recognized in the context of the Application, we argued and the Court agreed that the new POAs did not displace the original appointments of the other daughters as litigation guardians.  Justice Fraser noted that no motion had been brought to by Renee seeking to remove her sisters from that role, and concluded that Renee, due to her adverse interests to Kathryn, was not a suitable substitute to advance Kathryn’s interests as Unit Owner in this dispute.

To this end, while the Court was able to avoid making a definitive ruling on the overall validity of the new POAs, it still emphasized the importance of safeguards where capacity is in question.  Justice Fraser also confirmed YRCC 570’s position that attorneys for property have the authority to act on behalf of the grantor to the same extent the grantor could if capable (except for making a will), including requiring Renee to vacate the Unit.

In addressing whether Renee’s conduct constituted violations of the Act and YRCC 570’s governing documents, Justice Fraser affirmed that the evidentiary record before her amply demonstrated that Renee had engaged in harassing and other disturbing behaviour in contravention of the Act and the Declaration, By-Laws, and Rules governing YRCC 570, including a campaign of unfounded allegations against property management and the mistreatment and impersonation of Kathryn.

Justice Fraser found that: i) Renee’s denials did not overcome the serious concerns raised by the evidence; ii) although the police had been called to the Unit without further action, this did not detract from the issues before the Court; and iii) Kathryn lacked the capacity to control or address Renee’s behaviour.  The Court ultimately concluded that:

“Many people have attempted to resolve this situation without resorting to Court.  However, it has been without success.  I conclude that YRCC 570 has demonstrated non-compliance that that Kathryn and Renee are in breach of sections 116, 117 and 119 of the Act and the governing documents of YRCC 570.

I do not fault Kathryn for the current situation.  In my view, she does not have the ability to exert control over Renee.  The remedy is for Renee to leave the unit and for her to be prevented from visiting her mother at the condominium, except with the express consent of YRCC 570.”

Takeaways

This decision underscores the growing intersection between condominium law, elder care, and mental health.  Condominium Boards are increasingly being called upon to address challenging interpersonal situations that extend beyond typical rule violations. This case affirms the vital role Boards and Property Managers play, not just in enforcing rules, but in protecting vulnerable residents and ensuring a safe environment for employees and neighbours alike. 

Further, it is important to remember that, regardless of circumstances, the Act confirms that unit owners are responsible for the conduct of any residents, visitors, and/or other attendees of their units.  To this end, the Court highlighted the 2010 Ontario Superior Court decision in Muskoka Condo Corp No. 39 v. Kreutzweiser, which held that “The nature of a condominium is that in return for the advantages gained through common ownership of certain elements some degree of control over what can be done with those common elements is given up.  The details of what is given up are set out in the condominium declaration and its by-laws and rules.  It is both the right and obligation of a unit owner or occupier to see that these are obeyed.”

As Ontario’s population ages, the legal and ethical obligations of condominium corporations will only become more complex.  Decisions like YRCC 570 v. Edery are a reminder that compassion and compliance must go hand in hand and that protecting a community sometimes requires firm action.

Lessons for Condominium Corporations

1. Limits of a POA’s Authority: While attorneys acting under valid POAs have broad authority to act on an owner’s behalf, they do not have the right to disregard a condominium’s governing documents or interfere with its obligation to enforce compliance and protect workplace safety. 
2. Balance Compassion with Compliance: A Condominium Board must show sensitivity when dealing with elderly or cognitively impaired residents. However, this does not absolve a Board of their statutory duty under Section 119 of the Act to take all reasonable steps to ensure compliance because all owners are entitled to expect compliance.
3. Document Thoroughly and Objectively: Detailed, consistent documentation such as incident reports, communications, and photo/video evidence can make the difference between a successful application and an unenforceable complaint. Property managers and staff should be trained to document issues adequately to safeguard the condominium’s interests.
4. Involve the OPGT When Appropriate: The OPGT acts as a safeguard where individuals may lack the ability to understand or make informed decisions, especially in emotionally charged or potentially abusive circumstances. When conflicting POAs arise or capacity is in doubt, involving the OPGT may clarify roles, ensure oversight, and protect the interests of vulnerable owners.
5. Attempt Resolution Before Litigation: The Court in Edery noted that multiple parties attempted to resolve this matter informally before seeking judicial intervention. These good-faith efforts not only demonstrated reasonableness but also served to strengthen the condominium’s legal position.
6. Be Patient:  While Kathryn was an owner, she was also vulnerable.  Expect the Court to try to find a balance in advancing conflicting interests.