Background
Dianne Pettit Baig owned one unit and co-owned two others in a vacant-land condominium near Thunder Bay. After neighbouring owners Leslie Benson and Judith Deschamps began building a home without board approval, cleared vegetation—including some on Baig’s property—and substantially altered their lot’s grade, Baig repeatedly asked the condominium corporation to enforce its declaration. Benson and Deschamps continued construction despite a halt-work order.
The corporation eventually entered into a commitment agreement allowing construction to resume subject to landscaping and other conditions. The application judge found breaches of the approval process and improper vegetation removal, ordered Benson and Deschamps to follow the board’s directions, and awarded Baig $5,000 in damages and $10,000 in costs. He declined to require restoration of the lot’s grading and did not expressly decide Baig’s statutory oppression claims.
The Court’s Holding
The Court of Appeal held that the application judge failed to adjudicate the oppression claims under s. 135 of the Condominium Act, 1998. Benson and Deschamps acted oppressively by violating the declaration and continuing work despite the halt-work order, thereby unfairly prejudicing Baig and unfairly disregarding her interests. The corporation also oppressed Baig by failing to take reasonable enforcement steps, condoning construction before approval, acting while its president had a conflict of interest, and failing to give Baig a promised opportunity to review the landscaping plan.
The court granted declarations of oppression against both sets of respondents but declined to order Benson and Deschamps to restore the grading or award additional damages. The existing compliance order, restoration commitments, and $5,000 trespass award adequately addressed their conduct, and oppression relief is corrective rather than punitive. The court additionally ordered the corporation to give proper regard to Baig’s interests in any further review or approval of the adjoining unit’s development.
The court also held that the application judge erred by fixing costs without allowing bills of costs or submissions. Unless the parties agreed, costs of the application were to be determined by the Court of Appeal after receiving their submissions.
Key Takeaways
- A condominium owner may reasonably expect neighbouring construction to comply with the declaration, required approval procedures, and valid halt-work orders.
- A corporation’s failure to take reasonable enforcement steps can constitute oppression even if its later settlement is authorized and does not amount to bad faith.
- Oppression remedies must correct the proven unfairness and should not duplicate adequate relief already granted on compliance grounds.
Why It Matters
The decision confirms that condominium oppression analysis is distinct from ordinary compliance enforcement. Courts must expressly determine a properly advanced oppression claim, and conduct falling short of bad faith may still unfairly prejudice an owner or unfairly disregard that owner’s interests.
It also cautions condominium boards to enforce declarations promptly, manage conflicts of interest, and honour procedural assurances made to affected owners. Trial courts, meanwhile, should ordinarily give parties an opportunity to address costs before fixing an award.