Condowise Learning - Caselaw Summary

Simcoe Condominium Corporation No. 104 v. Leary, 2023 ONCAT 52

Under the Act, the Board of Directors is granted the power to make Rules which govern the use of the units, the common elements, and the assets of the condominium. However, the Board of Directors is not at liberty to make any type of Rule. The Act expressly limits the types of Rules that can be created to two purposes:

1. To promote the safety, security, or welfare of the owners and of the property and assets of the condominium; and
2. To prevent unreasonable interference with the use and enjoyment of the units, the common elements, or the assets of the condominium.

If the Board of Directors creates a Rule that is unreasonable or inconsistent with the Act, the Rule can be rendered unenforceable by the Tribunal, as was the case here.

The dispute between SCC 104 and Leary arose in relation to the signs and advertising on the side of Augustyniak’s company vehicle. As Augustyniak operated this vehicle for work, he had been parking his truck in the exterior parking space of unit since the beginning of his lease agreement with the Respondent unit owner, Leary. However, SCC 104 claimed that Augustyniak was in breach of the condominium’s Rule for doing so.

Specifically, the Rule prohibited licensed commercial vehicles from being parked in any spot in the condominium, as well as prohibited any vehicle with signs or advertisements affixed to it from being parked on the condominium property. SCC 104 sought an order from the Tribunal for Augustyniak to remove his vehicle from its current parking spot and to refrain from parking any commercial vehicle on the property.

The Tribunal found that the Rule was not created for either of the two permissible purposes. SCC 104 did not identify any safety, security or welfare risk. Additionally, the evidence presented by SCC 104 failed to demonstrate that a commercial vehicle parked on the condominium property caused any interference, let alone in an unreasonable way, with any person’s ability to use or enjoy any of SCC 104’s common elements or amenities. SCC 104 also failed to demonstrate any interference with the access, use, or enjoyment of a unit or the common elements.

SCC 104 claimed that, through its Rule, it sought to maintain a consistent appearance and to protect the aesthetic of the community as a “park-like setting”. Although a commercial vehicle may impact the aesthetic of the community, the Tribunal noted that this is a trivial impact that the community should be expected to tolerate.

Therefore, the Tribunal ordered SCC 104 to refrain from enforcing the parts of its Rule which prohibited the parking of licensed commercial vehicles and vehicles with signs or advertising affixed to them.

This decision, however, departs from past rulings in which the Court has upheld the enforceability of a rule that prevents commercial vehicles from parking on condominium property only because they have commercial markings. York Condominium Corp. No. 71 v. Sullivan, a decision from 1990 at the Ontario District Court, involved a similar set of circumstances. The tenant parked his commercial vehicle in his common elements driveway, contrary to the rules of YCC 71. This vehicle was no different from a regular van apart from the commercial lettering inscribed on it. However, the Court held that it was unsightly to park the commercial vehicle adjacent to the unit and thus interfered with owners’ use and enjoyment of the common elements.

Although the facts in Sullivan and Leary are analogous, the rule was held to be enforceable in Sullivan but not in Leary. Did the Tribunal in Leary get it wrong? How do we reconcile these seemingly conflicting decisions?

The Tribunal in Leary explained that a commercial vehicle or advertising and signs on a vehicle could be prohibited if they cause more than a trivial interference and unreasonably interfere with the use and enjoyment of the units and common elements. Ultimately, it will depend on factors specific to each condominium community, including other considerations such as safety, size, or maintenance issues.

In comparing Sullivan and Leary, there also appears to be a shift from 1990 to present in what is considered to be an “unreasonable” interference. The Court in Sullivan emphasized the importance of protecting the aesthetics of the community for the benefit of all owners. However, in Leary, this consideration was trivial as it was noted that the effect of this seemingly neutral rule was to unfairly police the type of people who may live in the community.

Read full decision here.