Many people, it seems, are keen to assert their apparent rights under the Canadian Charter of Rights and Freedoms in a broad array of disputes. The Charter may get invoked in situations ranging from an eBay purchase gone wrong to matters involving owners, directors and condominium corporations. This can sometimes become a free-for-all of legal misunderstandings and misinformation.

The law is generally a complex and nuanced matter. That’s why people consult with lawyers who have specialized knowledge and experience. While not many non-lawyers are familiar with things like interlocutory injunctions, other legal concepts, such as the Charter, are more readily accessible and trickle into the consciousness of Canadians.

For every 10 times an individual claims that their Charter rights are being violated, perhaps only once is the Charter actually applicable.  Most often, the Charter has nothing to do with the matter. Why not? Though the Charter is a law that guarantees the civil rights of people in Canada, it only applies to the actions of government. The Charter, therefore, does not generally apply to the private interactions of individuals.

A recent case from the B.C. Supreme Court highlights this common misunderstanding. The case deals particularly with the application of the Charter in a condominium.

In Strata Plan NW 499 v. Kirk, 2015 BCSC 1487, an owner disputed his strata corporation’s right to collect strata fees (the Ontario equivalent to a condominium corporation’s right to collect common expenses) and so stopped paying. The corporation registered a lien against title to the unit under section 116 of the Strata Property Act (the Ontario equivalent can be found under section 85 of the Condominium Act).  Then, the corporation commenced proceedings for an order for sale of the condominium unit to recover the arrears. The owner opposed the order and asked the court to declare that his Charter rights had been infringed and that the corporation had acted improperly.

The corporation’s defence relied on a number of provisions in the Strata Property Act to justify its actions, namely its authority to collect strata fees, to lien the unit and to force the sale of the unit to collect money owing. The judge had many reasons for deciding in favour of the corporation as far as condominium law issues go, but this article will focus on the Charter claim.

The owner argued that the Strata Property Act’s provisions permitting the corporation to file liens against title based on mere allegations of an owner’s failure to pay strata fees is contrary to principles of fundamental justice. It is worth noting here that the owner was self-represented, and therefore did not have the benefit of a lawyer’s opinion on the merits of his Charter challenge.

Section 7 of the Charter holds that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The owner in this case took issue with the corporation’s ability to arbitrarily and unilaterally determine the state of accounts between owners and the corporation without impartial oversight. He argued that this threatened his continued occupancy of his residence and therefore the security of his person.

There may be something compelling to his argument. He is not the first to suggest that a condominium corporation’s lien power is extraordinary. But is there a Charter argument?

The Charter only applies to the Parliament and Government of Canada and to the legislatures and governments of each province on matters within their authority. So does the Charter apply to governance of condominium properties? That depends on whether the condominium corporation is “government” or whether its activities are “government-like.”  Condominiums are sometimes colloquially referred to as “like a fourth level of government.” That description should perhaps now be used with caution, considering the judge’s decision in this case.

The judge found that the interaction between the owners, the rules, bylaws and the legislation is, by nature, a private agreement to use the property in a common purpose. When an owner acquires title to a condominium property, he or she does so with the understanding that bylaws and rules exist to maintain the orderly administration of the condominium’s affairs, including the building, facilities and grounds. Although some of these functions, such as garbage collection, may parallel the functions of a municipal government, the province’s legislation does not replace or invest in the corporation any powers or functions of the province.

The judge concluded that condominium corporations are not “government,” nor their activities “government-like.” In law, therefore, a condominium corporation is not like a fourth level of government at all!

The Charter was not intended to protect economic interests, and the owner’s complaint concerned an economic dispute: the corporation’s debt claim.  The threat of having his home sold was, in essence, a dispute over financial responsibility, and not a Charter-protected right.

Since the Charter is under federal jurisdiction, it is likely that a similar analysis and outcome would follow in Ontario. This does not mean, however, that none of the rights in the Charter apply in a condominium setting. While the Charter itself may not necessarily apply, some rights contained in the Charter have become part of the common law, including, for example, the right to free speech.  Though, since the right to free speech is another one of those misunderstood laws, perhaps it’s best not to go down that road for now…

Eric Laxton is a lawyer at Chappell Partners LLP with particular experience in condominium law, and the editor of Condomaximum, a monthly newsletter on condominium law issues. He can be reached at elaxton@chappellpartners.ca.