Using a “Sledge Hammer” to Secure Compliance: A Risky Proposition

What tools does a Corporation have when an owner refuses to comply with the Corporation’s governing documents? Our avid readers will know that securing compliance can be tricky if not done in a strategic, reasonable and forward-thinking manner. A recent case out of Toronto is a stark reminder of what condos should (and should not do) when faced with a pure compliance matter.

What was the case about?

In TSCC 1630 v. Vallik, the corporation was faced with an owner who was requested to move her vehicle from its parking space to permit certain necessary maintenance work to be done.

The owner refused.

The corporation attempted to mediate the dispute, but the owner did not respond to the requests to mediate.

The Corporation filed an application for an Oppression Remedy

Although this was, on its face, seemingly a pure issue of non-compliance, the Corporation decided that it would bring an Oppression Remedy against the owner. They alleged that the Condo had an obligation to maintain and repair the common elements and that the unit owner was interfering with this obligation by refusing to move a vehicle. On that basis, the corporation was claiming oppression.

What did the Court decide?

While the Court did not ultimately decide what to do with the vehicle in question, it made several observations suggesting that it was far from clear that an oppression remedy was the correct approach:

• Oppression remedies and compliance orders are not the same thing:

“A compliance order may be obtained for almost any breach of technical rule or law. Oppression is a far more serious and severe form of wrongdoing than a simple breach of a rule. Finding oppression too readily diminishes the distinction between compliance and oppression proceedings and risks violating the strong public policy favouring alternative dispute resolution in condominium cases.”

• The court found that many corporations (and owners) bring an oppression remedy in order to avoid having to mediate and arbitrate the dispute. Some corporations may also take a harder line approach in an attempt to increase their ability to recover legal fees from the owner.

“It may be that the car is blocking a fire route and the issue is very serious. Or it may be more typical of condominium community disputes in which communication problems often harden peoples’ resolves on both sides and risk creating mountains from molehills.”

• While the Condo Act (section 134(5)) “prevents externalization of costs by a recalcitrant unit owner, it also has an unfortunate consequence of incenting condominium corporations to bring big, over-the-top expensive proceedings in the expectation of obtaining a lien on the owner’s unit for 100% of all  costs incurred. This tends to let some condominium corporations approach their unit owners with a sledge hammer when communal living might be best enhanced by a much gentler and more conciliatory approach.”

So the matter was referred back to mediation/arbitration.

All that said – the owner is risking significant legal fees if she continues to ignore the issue.

Important takeaways

There are two very important takeaways from this case:

• Not every disagreement between a condo and an owner amounts to “oppression.” When a dispute is purely about complying with governing documents, it is not advisable to file an application claiming oppression solely for the purpose of being heard by a Court – because the Court’s may not want to hear you; and

• Not every dispute between a condo and an owner requires the “sledge hammer” approach when communal living might be best enhanced by a much gentler and conciliatory approach

When faced with a recalcitrant owner, it is best to employ a strategic, step-by-step approach to securing compliance. Otherwise, the corporation may be stuck in a long, protracted legal dispute that costs a lot of money, time and energy – when a softer approach may have been more advisable.