COURT OF APPEAL FOR ONTARIO

DATE: 20020322
DOCKET: C35936

RE:

YORK CONDOMINIUM CORPORATION NO. 511 (Applicant/Respondent) –and– BEST DEAL MOTORS & COLLISION CENTRE INC. (Respondent/Appellant)

BEFORE:

McMURTRY C.J.O., WEILER and ARMSTRONG JJ.A.

COUNSEL:

Thomas S. Kent, for the appellant

Marc Koplowitz, for the respondent

HEARD:

March 19, 2002

RELEASED ORALLY:

March 19, 2002

On appeal from the judgment of Justice Ellen M. Macdonald dated February 6, 2001.

E N D O R S E M E N T

[1] The appellant appeals the decision of Macdonald J. granting York Condominium the relief it sought to enforce a by-law and rules of the Condominium Corporation relating to parking.

[2] The appellant raises four arguments. The first argument is that the trial judge erred in holding that the by-law was validly passed. The by-law in question states that it was passed by the Board of Directors on August 25, 1988 and confirmed by the owners at a meeting for that purpose. The minutes of the meeting of the Board of Directors are missing from the records in the possession of the corporation. There are, however, voting lists of owners present with the by-law attached. It was registered on title. Section 78 of the Land Titles Act also says that, once a by-law is registered on title, it is deemed to have been validly passed. In our opinion, there is evidence to support the trial judge's conclusion that the by-law was validly passed.

[3] The second argument is that the by-law is unreasonable. It is implicit in the trial judge's reasons and her comment that the by-law did not offend the Condominium Act that she found the by-law was reasonable. We are not persuaded that she erred.

[4] The third argument is that the by-law was not enforced against the appellant until recently and that it has been enforced only against the appellant. With respect to the selective enforcement aspect of the argument, there is evidence that three other units have received parking tickets and have paid their fines. Although the by-law prohibiting the parking of more than two vehicles per unit was passed in 1988, in 1999 house rules were passed stating unequivocally that parking could only take place in marked spaces. It was open to the trial judge to conclude that laches and estoppel were inapplicable.

[5] Finally, with respect to the quantum of the parking tickets, it is clear that the total parking infractions to February 2000 was $2,440. Macdonald J. did not allow evidence to be introduced that the amount in issue was $9,000. She arbitrarily fixed the figure at $6,000. On the evidence before her, she was not entitled to do so.

[6] Accordingly, we would allow the appeal to the extent of varying paragraph 4 of the judgment by deleting the figure of $6,000 and substituting therefore the amount of $2,440. Paragraph 6 of the judgment is correspondingly amended.

[7] In all other respects we would dismiss the appeal.

[8] Costs fixed in the amount of $2,500 inclusive of disbursements and G.S.T. to the respondent.

Signed: "R.R. McMurtry C.J.O." "K.M. Weiler J.A." "Robt. P. Armstrong J.A."