Parties were awarded general damages arising from corporation's oppressive and unfair conduct

Ontario civil | Real Property | Condominiums | Condominium corporation

Relief from oppression. Condominium board approved unit owners MN and VN's proposal to purchase unit next door from DM and connect them internally. While agreement pursuant to s. 98 of Condominium Act regarding structural changes (s. 98 agreement) was discussed, matter was not pursued. During renovations, new president denied MN and VN’s access to lakeside path alleging they were peering into other units. At board meeting without notice to MN and DM, board directed property manager to ask MN to stop work, and shortly thereafter, condominium corporation threatened serious consequences if they did not stop work and regarding s. 98 agreement. After structural changes were complete, corporation sent MN and VN s. 98 agreement that was different from blanket agreement sent to other unit owners and contained additional clause requiring restoration of unit to condition before improvements were made, including reinstallation of demising wall and changes made related thereto. MN and VN had made other changes to units which required no approval, including removal of second kitchen. MN and VN brought application for relief from oppression. Corporation brought cross-application to re-open approval process. Application granted in part. Cross-application dismissed. Corporation failed to undermine approval process with exception of need for s.98 agreement, but its proposed agreement was over-reaching. Corporation, by purporting to require term in s. 98 agreement that went beyond both its own approval and what it required of other unit owners, was abusive and unfair, and prejudicial to MN and VN. Additional clause would mean MN and VN would have to undo changes for which no approval was needed. Requirements of oppression remedy were met. Parties were ordered to enter into s. 98 agreement removing offending text. Approval process was not deficient and corporation was not entitled to reopen it or require MN and VN to restore demising wall other than in connection with sale. Corporation's stance was oppressive and unfair and it treated MN and VN more harshly than other unit owners. MN and VN were entitled to use lakeside path. MN and VN were awarded $10,000 general damages arising from corporation's oppressive and unfair conduct impairing their use and enjoyment of their property.

Noguera v. Muskoka Condominium Corporation No. 22 (2018), 2018 CarswellOnt 20884, 2018 ONSC 7278, W. Matheson J. (Ont. S.C.J.).

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