Condowise Learning - Caselaw Summary

De Lint v. Carleton Condominium Corporation No. 9, 2023 ONCAT 65

The Applicant, who is a director at CCC 9, filed a dispute about a request for records under Section 55 of the Condominium Act. The Applicant alleged that CCC 9 did not provide the information that related to the Board’s decision not to enforce a by-law. Further, the Applicant argued that they required the requested information to carry out their duties as a director.

Although disputes related to requests for records under Section 55 of the Condominium Act are within the Tribunal’s jurisdiction, this application was denied. In reaching this conclusion, the Tribunal referred to Section 13.3 of Ontario Regulation 48/01 under the Act, which sets out that the right to examine records does not apply unless the request is solely related to that person’s interest as an owner. The Tribunal determined that the request did not relate to the Applicant’s interest as an owner – rather, it related to the Applicant’s role as a director.

Similarly, in Sharma v. Toronto Standard Condominium Corporation No. 2510, 2023 ONCAT 39, the Tribunal dismissed the unit owner’s dispute regarding a request for records. The Tribunal found that the purpose of the request was to satisfy their obligations/duties as a director under Section 37 of the Act, which is outside of the Tribunal’s jurisdiction. The request did not relate solely to the requestor’s interest as a unit owner.

The Tribunal noted that directors are not always precluded from requesting records. A requestor’s interests as an owner may overlap with their role as a director of the condominium corporation. In determining how to proceed, the Tribunal will determine the substance of the application.

Returning to De Lint, the Tribunal analyzed the following portion of the application’s problem description:

“as a board member having this document is essential to determine the reasoning, voting etc on the reason to not follow by-law #5. It is my fiduciary duty as a board member to know this to make informed decisions. I also feel that every other member of the board should have access to this document.”

The Applicant claimed to require this document in order to fulfil their fiduciary duty as a board member, as required by Section 37 of the Act. However, does it necessarily mean that this dispute relates to Section 37 of the Act? Did the Tribunal get it right?

The Applicant, as a director, is also an owner at CCC 9. It is arguably in the Applicant’s interests as an owner to act responsibly as a director. It is peculiar that an owner could request the same records due to concerns regarding the Board and its actions, and yet a director is disqualified from doing the same.

Based on De Lint and Sharma, it appears that the Tribunal intends to uphold this reasoning. Perhaps this issue should be re-visited on appeal at the Divisional Court.

Read full decision here.

Toronto Condominium Corp. No. 1445 v. Catalli, 2023 ONSC 967

In this case, TSCC 1445 sought to evict Catalli from his condominium residence due to his history of dangerous behaviour. Most notably, Catalli was criminally charged for a fire incident in his unit that caused extensive damage to both the unit and the building more generally. In relation to this incident, Catalli pleaded guilty to arson by negligence as he claims he did not cause the fire intentionally. However, following an inspection of the unit, an electrical contractor verified that the electrical box and wiring was not up to code and was wired in a faulty way.

TSCC 1445 filed its application with the Superior Court of Justice for a compliance order under Section 134 of the Condominium Act, 1998 (the “Act”), as Section 117 of the Act prohibits any dangerous activity on condominium property that could case harm to persons or damage to property. 

The Court was reluctant to stigmatize Catalli as it was revealed that he suffered from mental health problems. Catalli’s physician testified that he was confident that Catalli’s erratic behaviour has ceased to be a problem as his current regime of medication has stabilized his mental health issues and associated behaviour. In the face of this evidence, the Court found that TSCC 1445 failed to establish that the Catalli was likely to be an ongoing source of harm. The only evidence of dangerous behaviour presented was the fire, which the Court believed was genuinely due to faulty wiring as opposed to any conduct by Catalli.

Ultimately, the Court declined to grant the order. The Court could not justify removing Catalli from his home based on past conduct alone – there must have been ongoing conduct of concern.

Arguably, the Court’s conclusion in this case is concerning. It is doubly concerning that the Court has disregarded Catalli’s guilty finding and has substituted the same with its own conclusions regarding the cause of the fire. Although Catalli needs a place to live, it should not be at the expense of the safety of the condominium community, as prohibited by Section 117 of the Act. Unfortunately, as the condominium community has already learned, genuine concerns about safety and mental health should be taken seriously as there can be irreversible and devastating consequences.

Read full decision here.