ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-15-527224

DATE: 2015-12-04

BETWEEN:

Polly Ann Couture
Applicant

– and –

TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2187, YOLA EDWARDS a.k.a.. YOLANTA ZAWADZINSKI, GRAZIELLA MINATEL, MARY GRAHAM and BRUNO GARISTO
Respondents

Timothy M. Duggan, for the Applicant

Rovena Hajderi, for the Respondents

HEARD: December 1, 2015

F.L. Myers J.

I Overview

[1] In condominium living, the needs of the many outweigh the needs of the few. However, the power of the collective is not absolute. Power must be exercised within the bounds of the condominium’s established jurisdiction and with due respect to the legal rights and reasonable expectations of the few or the one.

[2] As with most efforts to balance competing rights, the fact that people are involved complicates matters. It is well understood that in complicated moments people sometimes see exactly what they wish to see. Moreover, some find other’s illogic and foolish emotions an irritant.

[3] In this case, like so many others involving neighbours, a discrete issue was allowed to escalate out of hand causing needless distress and expense. Like excellent tacticians, the parties let their counsel attack while they sat and watched for weakness. What they did not do was to act like good neighbours. They were not of the body.

[4] It now falls to the court to unwind the tangled web that the parties wove. I expect that neither side will be particularly pleased with the outcome. Rather, I expect that they may find that having is not so pleasing a thing after all as wanting.

II Parking at 2 Ridelle Avenue

[5] The residential building at 2 Ridelle Avenue in Toronto is owned by Toronto Standard Condominium Corporation No. 2187. The condominium was created by the registration of its declaration on October 21, 2011. The building consists of 44 residential condominium units plus common areas. The common areas include a parking garage that contains only 32 parking spaces. In other words, there is not enough parking for each unit to have its own parking space.

[6] Article 3.2 of the condominium declaration provides, in part as follows:

The Condominium shall have sixteen (16) single car spaces… eight (8) two car tandem spaces…and will be available through assigned leasing to the Owner at the sole discretion of the Corporation… Each parking space shall be used and occupied only for motor vehicle parking purposes… In strict accordance with the Rules and Regulations in force from time to time, and without restricting any wider definition of a motor vehicle which may be imposed by the Board, “Motor vehicle” shall be deemed to include a motorcycle as customarily understood and private passenger automobile, licensed (with an active plate), insured, in good working order and repair, and as further defined in accordance with any regulations and laws established by any government authorities….

A. Conveyance of Parking Spaces

(a) The Board has the exclusive authority to assign the right to lease a parking space to an Owner on a priority basis...

(b) …

(c) Every lease of a parking space shall provide or be deemed to contain a provision that where the residential Owner is deprived of ownership of his or her unit through legal action… then the lease shall be deemed to be in default and shall automatically terminate, and the parking space shall revert to the Corporation.

(d) …Any owner who sells, transfers, leases or otherwise conveys his or her residential unit shall simultaneously or prior thereto, also transfer or otherwise convey their parking spot space back to the Corporation.

(e) No lessee has the right to assign the rental of his or her parking space to an existing Owner, prospective purchaser, a tenant, or a non-resident. Any residential Owner who illegally rents his or her parking space will be responsible for any costs incurred to rectify the situation.

(f) The Corporation will maintain a priority list of Owners that occupy their units and that wish a parking spot. The Corporation will assign vacant parking spaces on a priority basis in accordance with the list and new purchasers of units that occupy their units wishing a parking space will be added to the Owners list.

(g) Any instrument or other document purporting to effect a sale, transfer, assignment, gift or other conveyance of any parking space in contravention of any of the foregoing provisions of this section, except as provided for in schedule “F”, shall be automatically null and void and of no force or effect whatsoever, and any lease of any parking space so automatically be deemed and construed to be amended in order to accord with the foregoing provisions of this section.

[7] In effect, the declaration provides for the regulation of parking spaces by way of leases. Unfortunately, the condominium chose not to document its leases with formal pieces of paper. Accordingly, one is left to discern the terms of the lease. Some assistance is available from the contemporaneous correspondence. By letter dated January 27, 2012, a copy of which was sent to each unit owner, the board of directors described its understanding of the parking situation as follows:

Parking has perhaps been the most misunderstood issue at the building. The City was very clear that their consent to convert [the building to a condominium] was dependent on our keeping parking spaces as rental spaces, as actual parking spaces are at a premium due to the lack of sufficient parking spots. Owners are directed to the Declaration, Section 3.2 Conveyance of Parking Spaces, specifically, A(d) and (e) on page 8. Parking terms under the new Declaration remain consistent with our previous Co-ownership documentation. Resident Owners who lease a parking spot from the Corporation are required to convey their parking spot back to the Corporation once they cease to be in actual occupation of their suite. Additionally, cars parked in the garage as per section 3.2 Parking must have valid license plates and insurance and be in good working order. Vehicles which do not meet the Declaration’s standard will have to either rectify the deficiencies or be removed to allow other Owners their right to lease parking spaces as the parking garage is not a storage facility. [Bolded emphasis in original. Underlining added]

[8] As is apparent from the foregoing, particularly the underlined last sentence, the board of directors determined that it was not prepared to allow unit owners to store non-functioning vehicles in the garage when other owners were waiting to obtain parking spots to facilitate active transportation. A non-functioning car can be stored elsewhere with no prejudice.

(Complete judgment continues exactly as in the source…)

F.L. Myers J

Released: December 4, 2015