An Ottawa condominium corporation recently found that it was unable to recoup all of its legal costs incurred in seeking a compliance order against a unit owner and her resident son. There had been a 25-year history of incidents relating to the aggressive conduct of the unit owner’s son, many of which were parking and traffic infractions which occurred years before the present application.
After the Board commenced its most recent application seeking compliance with the condominium declaration and rules, the son was diagnosed with various mood and personality disorders. The unit owner consented to a court order requiring compliance with the condominium documents and thereafter, the problem behaviours ceased as the son obtained treatment for his condition.
The condominium corporation incurred legal costs of $21,814 and sought reimbursement of these costs on a full indemnity basis. The corporation argued that anything less than a costs award on a full indemnity basis would be unfair to all of the other unit owners in the condominium as those legal costs if not reimbursed, would be added to the common expenses payable by all of the owners.
After determining that the condominium corporation’s application record was overly extensive and that the legal fees relating to the preparation of the application record were excessive, the Court ordered the unit owner to pay costs in the amount of $5,000, to be paid within 5 years of the date of the costs order. In reaching this conclusion, the Court stated that the corporation should have used a more conciliatory approach rather than litigation, as it had a fiduciary duty to the unit owner and her son, as well as to all of the unit owners.
The judge in this case adopted the comments made in a prior decision, TCECC No. 1308 v. Stasyna:
“. . . all unit owners including these respondents, ought to bear the costs associated with their board’s decision here to first litigate and only talk later. It was a decision that may have been legally correct, but that showed poor judgment in my view.”
While the Condominium Act imposes an obligation on a condominium corporation to enforce the condominium documents, this case emphasizes that in doing so, a corporation must act reasonably and its actions must not be disproportionately heavy-handed, considering all of the circumstances. Where the non-compliance relates to a medical disability of the non-compliant owner/resident, this factor should be taken into account in developing the Board’s strategy to obtain enforcement. Unfortunately all of the unit owners will pay where the corporation’s Board has adopted an overly aggressive approach to obtain enforcement.