Someone is parking a car with advertising/company name on it overnight in their driveway, of which they have exclusive use, contrary to the corporation’s rule. Can the corporation enforce parking rules in spaces that are not owned by the unit owner, but of which they have exclusive use? And could there be an exemption from such a rule on the basis that it would violate human rights?

Are exclusive-use rules enforceable?

The simple answer is yes, the corporation can enforce parking rules; and whether the area is exclusive use or a unit is immaterial.

Under Section 58 of the Condominium Act, the board may make, amend or repeal rules, so long as the rules are related to either:

• promoting the safety, security or welfare of the owners and of the property or assets of the corporation; or
• aimed at preventing unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation.

The corporation can therefore make and enforce rules relating to every area of the condo building, including suites, balconies, common areas, and parking units. To be enforceable, the rules must be reasonable and consistent with the Act, the declaration and the bylaws of the corporation.

Every condo corporation has rules governing conduct on the common elements, including exclusive-use common elements. Rules respecting preserving the aesthetics of the corporation are also commonplace, on the basis that an unpleasant or non-attractive environment interferes with an owner’s use and enjoyment of the common elements, the units or the assets of the corporation. For example, condo corporations often have rules that prohibit the display of any kind of signage in units or the common elements or that require all window coverings be white or off-white to ensure uniform aesthetics.

A rule prohibiting signs or advertising on any vehicle parked on the common elements serves to protect the overall exterior and interior appearance of the condo property. A rule in a condo prohibiting the parking of commercial vehicles was challenged and upheld by the courts on the basis that parking a commercial vehicle would interfere with the use and enjoyment of other units and/or their occupants because the parking of such vehicles would be unsightly and thus interfere with the use and enjoyment of the common elements, common to units in the complex. It should also be noted that some municipalities have bylaws placing restrictions on the parking of commercial vehicles (which may or may not include vehicles with signage) on residential properties. One example is a municipality that prohibits commercial vehicles from being parked on any residential lot unless parked entirely within a wholly enclosed building.

Is a human rights exemption possible?

Human rights cases are context-specific and so generalizations about possible exemptions should be avoided.

To invoke the Human Rights Code, the discrimination must be related to one or more of the following prohibited grounds: race, colour, ancestry, creed (religion), place of origin, ethnic origin, citizenship, sex (including pregnancy), gender identity, gender expression, sexual orientation, age, marital status, family status, and disability or the receipt of public assistance (this last ground applies to housing only).

A rule prohibiting displaying signage on the corporation property in and of itself would not implicate any prohibited ground. There is no Code-related right to free speech or to earn a living, unless these are restricted because of race, gender identity, or some other prohibited ground of discrimination. The freedom of expression and other freedoms are found in the Canadian Charter of Rights and Freedoms, which applies to government action only, and not to condos.

There may be particular situations in which a resident requires accommodation with respect to the rule because of either family status or on some other protected basis (e.g., a resident who must leave the company vehicle overnight in the parking space because he or she must drop off children to school early in the morning and go straight to work, or risk the employer’s corrective action). However, there are a number fact-specific solutions to address these issues, such as masking the signage, or making arrangements to swap out the company vehicle nearby and off site. A condo’s accommodation obligations are almost always determined in a fact-specific, case-by-case manner.

Deborah Howden and Warren Kleiner are lawyers and partners in Shibley Righton LLP’s Condominium Law Group. They are condo law specialists who regularly advise condo corporations all across Ontario.