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Roberto Noce Q.C., Partner of Miller Thomson LLP, joined as our distinguished guest for a webinar, hosted by Magnum York to discuss the latest condominium case law and court decisions and why owners are suing more condo boards than ever.

Roberto’s Q.C. designation stands for Queens Counsel. This is an honour granted by the government to lawyers who have demonstrated exemplary service to the Canadian justice system through their work in the federal public service.

Individuals are identified and considered according to a number of factors, including the length of service as members in good standing of provincial bar associations, their contributions to the development of the law, and leadership in their professional and personal lives which has raised esteem for the legal profession.

Government of Canada – Designation of Queen’s Counsel

Firstly, Thank You

Thank you to Robert Noce for providing in-depth industry knowledge as our special guest. Thank you to the Magnum York team for working hard behind the scenes to make this webinar possible and thank you to our 125+ attendees for joining us. We have summarized the contents of the webinar below.

Overview of Condo Law in Alberta – Back to Basics

Alberta was the first province in Canada to adopt Condominium Legislation in 1966, with Edmonton being the first city in Canada to receive a Condominium Plan.

There are several documents that anyone living in a condo should be aware of. The first and most important being The Condominium Property Act, which is a piece of legislation that sets out the parameters for every condominium in Alberta. Condominium laws are specific to each province, therefore condo laws that apply to other provinces, may not necessarily apply to Alberta.

The next important document is the Condominium Property Regulations, which are also passed by the Government of Alberta. This document has recently been amended so it is vital to read the updated version if referencing case law.

After these two documents, the following two valuable documents are the Condominium’s Bylaws and the Condominium Plan. Every condominium complex in Alberta must have a set of Bylaws, if they have not been developed yet, then the ones that the Government of Alberta has prepared under the regulations are the Bylaws that apply.

Your Bylaws are different from the Condominium Property Act and the Condominium Property Regulations as they are specific to your complex. As long as the Bylaws do not offend the Property Act, Property Regulations, or any other law then the ByLaws will be enforced and protected by the courts.

The Condominium Plan is a public document, filed at Land Titles. This document will outline what is and what isn’t common property (property owned by all the owners) and what is and isn’t exclusive use. For example, it’s not uncommon for the balconies to be common property however, the owner has exclusive use to this area meaning they have exclusive control of this space.

These documents are critical to knowing how condominium corporations operate.

Can the Condominium Bylaws be amended?

Yes, they can be amended by the owners as long as there is 75% of the owners and 75% of the unit factors supporting the change.

What is a Condominium unit factor?

Every Condominium Corporation in Alberta has 10,000 unit factors that is divided among all the owners. This will be disclosed on the unit Title, to determine how many unit factors the owner owns.

How are the Condominium unit factors divided?

Condominium unit factors are divided according to the square footage of the unit.

Can the Condominium Board set their own rules?

Condominium Corporations, at a Board level can pass rules, policies and regulations. However, these cannot impact the rights of the owners.

For example: If the Board wanted to limit the number of pets in the building, this rule passed at the Board level would be against the law as it impacts the rights of owners and tenants. The only way to achieve this would be a Bylaw amendment.

CASE LAW EXAMPLE:
Owner Successfully Sues the Condominium Board

Robert represented a Condominium owner in a case against the Condominium Corporation where the owner occupied a unit on the ground floor, in an apartment style complex that had concerns over her leaking windows. The owner brought this to the attention of the Board, who made some attempts to address her concerns. However, the owner felt that the attempts to rectify the leaking windows were inadequate.

After continuing to bring this issue to the Board and the Property Manager, the communication came to an end and the owner was effectively being ignored. At the Annual General Meeting, the owner raised her hand to speak on her concerns and was refused the opportunity to have the floor. The judge, in this case, came to the conclusion that this action was oppressive to the owner.

The owner eventually sought legal advice from Robert to see if this was grounds for the owner to pursue a claim so that her windows could be repaired. In this case, the answer was yes.

There is a section under the Condominium Property Act, section 67, which outlines what falls under improper conduct. This can be found on page 69.

Condominium Property Act

The court determined that even though the Board had not been deliberately prejudicial while dealing with the unit owner, the conduct of the Board had the effect of being oppressive. The Board’s failure to properly investigate the owner’s concerns in a timely fashion, constituted, according to the courts that it unfairly disregarded the interest of the owner. This resulted in the judge ruling in the owner’s favour.

Notes to take away from this case…

1. Rely on your property manager for advice, direction, or help at the Board level.
2. When your property manager is uncomfortable with a question, that is when other professionals might need to be engaged who are qualified for a specific issue (such as legal, engineering, etc.)

What can the Board do to prevent a lawsuit?

• As a board member, be aware and familiarize yourself with the bylaws and laws that govern the corporation.
• It’s important that the property manager is familiar with these laws and the property, in order to offer advice to the Board when needed.
• It is not a bad process if the Board needs to engage in other professionals to assist on any issues.
• The Board needs to keep their board meeting minutes documented and up to date.
• Listen to owners and take them seriously when they express their concerns.

Top 8 Questions & Answers

1. Question: Would the Board be open to trouble when issuing a notice or fine without having anything to substantiate the action, such as photos or videos?
   Answer: If you are going to fine an owner, with respect to a breach of the Bylaw (not a rule), you need evidence. If the owner was to challenge you against this action, you will need to provide dates, times, witnesses, and other evidence to substantiate this action.
   
2. Question: The Condominium Act requires the Corporation to provide an annual operating budget, reserve fund plan as well as a reserve fund study every 5 years. If an owner in a condo complex puts their unit up for sale and these documents are not available, what are the ramifications?
   Answer: The potential exposure is to the corporation by the seller. The buyer could walk away if the documents are not available to them however if a lack of these necessary documents causes a sale to fall through, this is where the issue could become a potential problem for the Corporation. Although a lot of these cases would be fact-driven.
   
3. Question: Can the Board ignore potential infractions for non-compliance of the Bylaws and make exceptions?
   Answer: There is very little to no leeway when enforcing the bylaws. If the Board members are making deliberate decisions to ignore the enforcement of their bylaws for some people and not others, they are opening themselves up to personal liability.
   
4. Question: Can permission that has previously been given to an owner by the Board be reviewed and rescinded by a future Board?
   Answer: Yes. No current Board is bound by a decision of a previous Board. However, the Board has to ensure they don’t cause any prejudicial harm to the owner if they change the decision.
   
5. Question: What is a bare-land Condominium?
   Answer: It is a plot of land that may or may not be developed. Generally, it is a row housing type development or a single-family home with a driveway and backyard. You own everything in your unit.
   
6. Question: Can the Board issue fines over a rule?
   Answer: No. The law is clear that you cannot issue a fine over a rule set by the Board however, you can issue a fine for a bylaw infraction.
   
7. Question: Can Board members be sued as individuals or just the whole Board as a Corporation?
   Answer: Both can be sued. The Corporation is a legal entity by itself however, if there is evidence of wrongdoing by singular Board members, they are open to personal lawsuits.
   
8. Question: Are Board members covered under insurance when it comes to lawsuits?
   Answers: Yes, as long as they have director’s liability insurance. Every Corporation should ensure they have this coverage.

Not Legal Advice:  This article is provided solely for information purposes.  The information presented does not constitute legal or professional advice and should not be relied upon for such purposes or used as a substitute for legal advice. If you are in need of a legal opinion, you should engage a lawyer to review your specific concerns.

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Further Recourses:

• Miller Thomson LLP – https://www.millerthomson.com/en/
• MYVendor Preferred Vendor Program: https://magnumyork.com/blog/holly-yuzwa-joins-magnum-york-to-lead-the-myvendor-program/
• The Condominium Property Act: https://www.qp.alberta.ca/documents/Acts/c22.pdf
• The Condominium Property Regulations: https://www.qp.alberta.ca/documents/Regs/2000_168.pdf
• Calgary Herald – Roberto Noce by-weekly segment: https://calgaryherald.com/author/robert-noce
• Edmonton Journal – Roberto Noce by-weekly segment: https://edmontonjournal.com/author/rnoce

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