Non-Enforcement Does Not Prevent Current Enforcement of the Declaration – The Impact of Strong Non-Waiver Clauses in Condo Declarations
In Middlesex Condominium Corporation No. 169 (“MCC 169”) v. Doherty et al. (“Owners”), the Condominium Authority Tribunal (the “CAT”), decided in favour of MCC 169 and held that the condominium corporation’s declaration did not allow the parking units at the property to be used for storage despite a lengthy history of approximately thirty (30) years where the Owners were permitted to do same.
In May 2022, a Fire Department inspector attended MCC 169 and made an order that any “cabinets, shelving, tires, appliances and any storage” violated the Ontario Fire Code and ordered that the items be removed. MCC 169 proceeded to send notice to all owners requiring that storage items be removed from the parking units and took steps to repeal a particular rule which MCC 169 argued was and had always been inconsistent with the clause in the Declaration that it was enforcing. The Tribunal in its decision agreed that the particular rule referenced by the Owners was effectively repealed; or in the alternative, inconsistent with the clause in the declaration and therefore not enforceable, pursuant to s. 58 (2) and (4) of the Condominium Act, 1998 (the “Act”).
While the Fire Department order was the impetus for MCC 169 to enforce the clause in the declaration after many years of non-enforcement, MCC 169 commenced a CAT application as against the Owners due to non-compliance with the corporation’s governing documents relating to storage in the parking units, pursuant to Ontario Regulation 179/17 of the Act, which outlines the CAT’s jurisdiction for same. Despite notices to the Owners, there was continued non-compliance of the declaration by the Owners. In the Act, under s. 119(1) it states “ an owner shall comply with this Act, the declaration, the by-laws and the rules”. In addition, the condominium corporation has a duty to take all reasonable steps to ensure that owners comply with this Act, the declaration, the by-laws and the rules” (s. 17(3) of the Act).
The Owners argued against the enforcement of the declaration and stated, among other things, that MCC 169 should allow the continued use of the parking units for storage given the lengthy history of non-enforcement by MCC 169 (a principle in law sometimes referred to as laches). MCC 169 relied upon its non-waiver clause in the declaration as a full defence to this argument. The Tribunal agreed and concluded that MCC 169 was entitled to commence the enforcement of its declaration once it became conscious of and concerned about it.
MCC 169 relied upon precedent cases that supported the same outcome in relation to non-waiver clauses, including: Ballingall v. Carleton Condominium Corporation No. 111, 2-15 ONSC 2484 and Waterloo North Condominium Corp. v. Silaschi, 2012 ONSC 5403, 2012 CarswellOnt 11860.
Mr. Michael Clifton, member and vice-chair of the CAT, found in favour of MCC 169 and issued a decision requiring that the Owners remove all stored items within sixty (60) days. In addition, the CAT held that MCC 169 had the right to give reasonable notice to require the removal of the stored items from the parking units after the sixty (60) days if there was continued non-compliance. The Owners would be required to pay the cost of the removal and subsequent secured storage of the remaining items.
This decision, along with the others referenced in Middlesex Condominium Corporation No. 169 v. Doherty et al, outline the importance of having a strong non-waiver clause in condominium declarations. They prove invaluable, particularly after thirty years!
Megan A. Alexander is a licensed paralegal who represented the condo corporation in this matter.
Ms. Alexander works within the Commercial Litigation and Multi-Residential Housing Groups at Cohen Highley LLP in London, Kitchener, Stratford, Strathroy and Windsor. Ms. Alexander’s main areas of practice is within the Ontario Small Claims Court (including enforcement of Landlord and Tenant Orders) and the Condominium Authority Tribunal (“CAT”).
If you have any questions, please contact Ms. Alexander at (519) 672-9330 ext. 389 or by email at .
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