In the fall of 2013, a condominium case out of British Columbia drew national attention to an issue that plagues many condominium corporations: what relief is available when inappropriate or unacceptable behaviour on the part of condo owners or residents cannot be stopped.
In the case of Strata Plan LMS 2768 v. Rose Jordison and Jordy Jordison (Jordison), the court was ultimately required to decide on whether it had the jurisdiction to force an owner to sell their unit.
The Jordison decision is not the first of its kind in Canada, but is (to this lawyer’s knowledge) the first of its kind outside of Ontario. What is intriguing about this decision is that it appears to reinforce a gradual shift in the way that courts are thinking about, and interpreting, condominium law.
Traditionally, Canada’s common law system has held tight to the principle that “our home is our castle.” Condominium living, by its very nature, can run counter to that principle. The Jordison decision, and others like it in Ontario, suggests a shift towards a principle of “our condo is our kingdom.”
When one moves into a condominium, one agrees not only to be governed by the applicable legislation, but also to be bound by the rules and regulations of that particular kingdom. When problems arise, a condominium has certain rights of enforcement through its governing legislation, but often, court intervention can be required to enforce such rights.
In Ontario, a handful of decisions (prior to the Jordison case) have resulted in the forced sale of a unit. Ontario’s governing legislation (specifically section 134 of the current Condominium Act) contains broad language, which grants broad powers to the court when faced with an enforcement application to “grant such other relief as is fair and equitable in the circumstances.”
The courts have certainly emphasized that a forced sale of a unit is a very powerful remedy, only to be exercised in the most egregious of cases. That said, when faced with a situation where an owner clearly is unwilling, or incapable, of compliance, Ontario courts have exercised the discretion to order a forced sale on first application.
Turning specifically to the Jordison case, the British Columbia Supreme Court and Court of Appeal were faced with the same issues that have plagued the Ontario Courts: the competing rights of the individual property owner versus the rights of other owners to quiet enjoyment in collective living, to be enforced via the governing legislation.
The difference, however, is that the governing legislation in British Columbia did not grant the courts the same broad powers to immediately order a forced sale. The governing legislation in British Columbia, being section 173 of the Strata Property Act, requires a two-step process. In short, the owners must first be ordered to comply or perform a duty, and only if the compliance or performance is not forthcoming will the court then be in a position to order the forced sale.
In the Jordison case, it took no less than four court appearances before the corporation obtained the necessary relief (sale of a unit) to allow the other owners in the community to enjoy the right of quiet enjoyment.
Whether one prefers the potentially immediate relief granted through the provisions of Ontario’s current Condominium Act, or the two-step process required by British Columbia’s Strata Property Act, one common thread is emerging: where the legislation permits it, and where the conduct is sufficient to warrant it, the courts are willing to order a forced sale.
Since the release of the Court of Appeal decision in Jordison (November 2013), the Ontario courts have heard at least two more cases regarding owners engaging in inappropriate or egregious conduct. In one case, the court appears to have taken a page from the Jordison decision and has allowed the owner one last opportunity to comply. In the other, the conduct was so egregious (involving a shooting and stabbing on the premises) that a sale was ordered.
With the continual trend towards condominium living, there is no question that the issue of these competing rights will increasingly come up. In addition, in many provinces across the country, condominium legislation is undergoing review or revision.
What will be intriguing is to see how these decisions and principles are interpreted and applied, perhaps in amendments to governing legislation, or by other courts across the country. At the end of the day, in situations such as these, it often comes down to the home as castle or the condo community as kingdom.
Nancy Houle is a partner at Nelligan O’Brien Payne LLP, and practice group leader of the firm’s condominium law group. Her practice includes general corporate advice to condominium corporations, financing and secured transactions, construction law, building deficiency litigation, and proceedings involving disputes between condominium corporations and residents.
