Can a condo corporation enforce a bylaw infraction against an owner when it has not enforced the same infraction against others?

The answer is “yes.”

This question was addressed in the recent Ontario court decision, Durham Standard Condominium v. Morton. The corporation’s bylaws provided that residents could have one pet weighing no more than 20 kilograms. If that pet was a dog, it had to be on a leash at all times. A defaulting unit owner claimed other residents were breaking the bylaw, including some members of the board of directors. The property manager acknowledged other owners had more than one pet but there were no complaints about those owners. The board had only received complaints about the problem unit owner.

In this case, the court was satisfied the board had not acted vindictively against the owner. Complaints were received from people who were afraid the owner’s dog would jump up on them. Basically, there was a danger of injury to others.

Generally, a court will only step in when a board’s discretion is exercised improperly. The law is clear the court’s role is not to substitute its own opinion for that of the board of directors; rather, it is to ensure the board has acted in good faith.

Even when the board is clearly acting in good faith, unit owners have challenged the selective enforcement of bylaws due to lack of fairness.

The courts acknowledge selective enforcement can be viewed as discriminatory. However, in the court’s view, that is not sufficient grounds to deny the board’s right to take selective enforcement action. Judges are prepared to justify this on the basis that it is in the collective’s interests in having the condo’s declaration enforced, even if some unit owners have been allowed to violate it.

Does this mean any degree of discrimination is legal?

Probably not.

What is clear, though, is that each case must be assessed on the specific situation at hand.

Jeff Morris is a lawyer who now practices mediation for condominium disputes.