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CONDOMINIUMS - Condominium corporation - Liability - Unit holders

Thursday, March 12, 2020 @ 8:28 AM  

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Appeal by the condominium corporation from the granting of the respondents’ oppression application and the dismissal of its cross-application. The respondents owned Unit 210 in the condominium. Before making an offer on Unit 211, the respondents requested the appellant’s approval of their proposal to make an opening between the units. The board approved the respondents’ proposal with several conditions. Based on the board’s approval, the respondents purchased Unit 211. The appellant did not enter an agreement required by s. 98 of the Condominium Act with the respondents, consistent with its long-standing past practice. After the respondents renovated the units, the appellant requested the respondents enter a s. 98 agreement. It prohibited the respondents from using a lakeside path based on unproven allegations of window peeping. The application judge awarded the respondents $10,000 in damages for oppression and prescribed the terms of the s. 98 agreement, which incorporated the conditions imposed when the board originally approved the proposal.

HELD: Appeal dismissed. The application judge did not err in finding the appellant’s conduct, in wrongly excluding the respondents from the use of common elements, disparaging them and fostering an atmosphere that made them uncomfortable, was oppressive and unfair and that the form of s. 98 agreement proposed by the appellant was abusive, unfair and prejudicial to the respondents. The application judge’s remedy served to rectify the appellant’s oppressive conduct. The appellant’s interests were entirely protected by the s. 98 agreement ordered by the application judge.

Noguera v. Muskoka Condominium Corporation No. 22, [2020] O.J. No. 313, Ontario Court of Appeal, J.C. MacPherson, S.E. Pepall and P.D. Lauwers JJ.A., January 27, 2020. Digest No. TLD-March92020010