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CONDOCENTRIC: Casey Goes To Ottawa: A Cat's Tale
Foreword: MTCC 949 is currently seeking leave to appeal this case to the Supreme Court of Canada – a process that is virtually unheard of in condominium circles. It has been our opinion, from the outset, that this case ought never to have gone to court in the first place! It has been suggested that the lower court decisions have resulted in condominium governance going to hell. We disagree – the lower court decisions serve to put reigns and a bridle on board decisions and policies that lacked both consistency and reasonableness.
Issue: Are these circumstances in which a condominium corporation will not be permitted to enforce its declaration?
Facts: More specifically, the case was about a lady, Ms. Staib, who moved into a condominium with her cat, Casey. The condominium’s declaration prohibits pets. The condominium’s declaration also includes a “no-waiver provision;” that is, a provision that provides that the failure to enforce the declaration does not preclude the condominium from doing so in the future.
Ms. Staib moved into the condominium in the early nineties with Casey. She continued to live, undisturbed, in her condominium unit with Casey for ten years. Ownership of pets in the condominium by numerous unit owners was open and known. The condominium’s policy was that the no-pets provision in its declaration was not to be enforced unless a nuisance situation arose. The condominium decided in 2004 to enforce it. The condominium corporation was not willing to allow existing pets to be grandfathered.
The condominium brought an enforcement application against Ms. Staib in the Superior Court of Justice.
Lower Court Decisions: The Superior Court judge refused to order that Ms. Staib remove her cat, Casey. The judge found, among other things, that the condominium corporation, by not taking active steps to enforce its declaration, had acquiesced to the presence of Ms. Staib’s cat over the years, and that it was not reasonable to enforce the Declaration in this particular case.
The condominium corporation appealed the decision to the Ontario Court Appeal. The Court of Appeal unanimously upheld the lower court’s decision, allowing Ms. Staib to continue to live in her condominium unit with her cat.
What this Case Stands For: The decision followed the established principle in caselaw and statute, that it remains in the discretion of a judge whether or not to allow the enforcement of a declaration.
The decision did not invalidate, extinguish, or otherwise derogate from the declaration. The decision simply recognized that in certain circumstances condominium declarations will not be enforced by the courts. The Honourable Justice Sachs, the Superior Court judge hearing the application, writes in her endorsement: “I am not finding that the "No Pets" provision in the Declaration is unreasonable. Indeed, I accept that it must be presumed to be so. I am just finding that it would be an unreasonable exercise of my discretion to enforce that provision in the Respondent's case.” Upholding Justice Sachs’ decision, the Court of Appeal writes in their endorsement: “The respondent did not challenge the validity of the "no pets" policy in the declarations of the appellant condominium corporation. Rather, she asserted that the policy should not be enforced against her in the particular circumstances of this case. We agree.”
As established in caselaw, in exercising their discretion, the courts may consider such factors as whether the condominium corporation has “slept on its rights;” whether the breach is so small as not to be worth fighting about; whether there are human rights considerations; and what the reasonable expectations of unit owners are, to name some.
What is, I think, new in this case, is the open recognition of the applicability of equitable principles to enforcement applications. Section 134 of the Condominium Act, 1998 (the “Act”), that is, the provision in the Act governing the procedure for applications to court to effect compliance, provides that, on an application, the court may, among other things, “grant such other relief as is fair and equitable in the circumstances.” Although the counterpart provision in the old Condominium Act, R.S.O. 1990, recognized a discretion in the court, the new provision explicitly recognizes the applicability of equity. The Court of Appeal, in this case, recognized this in their endorsement: “In our view, given these facts, it would have been inequitable for the application judge to make the requested compliance order.”
This case distinguishes Ontario caselaw on these issues, both prior and subsequent to the new Act, from caselaw in other provinces. For example, in Condominium Plan No. 8222909 v. Francis, the Alberta Court of Appeal declined to rely on Ontario and Manitoba decisions put before it because, among other things, they “were based on legislation which authorized the court to achieve “equitable” results. Similar provisions,” the Alberta Court of Appeal writes, “are not found in the (Alberta) Act.”
What does the case mean for condominium corporations in Ontario? Enforcement of the Act, declaration, by-laws and rules must be reasonable. There may be some circumstances where it is appropriate to consider creative means to effect compliance with a declaration (i.e. Grandfathering). Section 17 of the Act provides that a condominium corporation must take all reasonable steps to ensure compliance. This is a new feature in the Act. The old Condominium Act suggested an absolute duty to ensure compliance.
What if the situation were slightly different? What if the situation was not, in the words of Justice Sachs, a situation where “as a result of the Applicant's non-enforcement, the Respondent's position has worsened. As already evidenced - her pet, to whom she has just grown more attached, is now 12 years old and essentially unadoptable?” What if the issue had been about a barbeque that Ms. Staib had purchased and used on her balcony for 12 years contrary to a provision in the declaration? I think, then, that the question of whether or not the declaration should be enforced, and how it would be enforce, could result in a very different answer.
Does this case mean that condominium governance and management has gone to the dogs? No - the facts will continue to inform the requisite level of enforcement, and exceptions to requiring strict enforcement will be rare. However, condominium corporations will not be able to refrain from, or neglect to take steps to enforce their declarations for a considerable period of time with no cogent explanation, refuse to acknowledge the equities of a situation, and then come before the court and say that a condominium corporation has no choice of whether or how enforce its declaration.
Actually, the case suggests a lesson in corporate governance: boards should be mindful to enforce the declarations of their condominium corporations actively, diligently and reasonably.
The condominium in this case is not prevented from henceforth enforcing its declaration by prohibiting, or requiring the removal of, new pets brought into the building.
The condominium corporation is currently seeking leave to appeal the decision to the Supreme Court of Canada in Ottawa. Will Casey’s fate be decided in the nation’s capital? Likely, had the level of enforcement of the declaration been different, we wouldn’t even be asking the question now.
Benjamin J. Rutherford practices civil litigation with Elia Associates. He continues to represent Ms. Staib, and has represented Ms. Staib at all levels of court, including negotiations prior to the commencement of the court proceedings.
From “Common Elements” Winter 2006
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