Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
RE: DENIS PAQUETTE AND MARLENE TREMBLAY, Applicants
-and-
ALL UNIT OWNERS AND MORTGAGEES OF RECORD OF COCHRANE CONDOMINIUM CORPORATION NO. 4, Respondents
BEFORE: FL Myers J
COUNSEL: Megan Mackey, for the applicants
READ: October 10, 2022
ENDORSEMENT
Overview
1The applicants request an order amending the condominium’s declaration and description sheets to correct a problem that has prevented them from obtaining title to their condominium unit. The applicants also seek an order deeming service to be effective.
Background
2When the condominium was registered in 1987, its declaration described three areas as vacant to be left for future development.
3In 2015, one of the vacant areas was developed into two condominium units. They were sold to the applicants and another couple respectively.
4For reason that are not clear, the lawyer who acted for the purchasers failed to ensure that they received good title to their units. A purported amendment to the declaration was filed at the time. But it was insufficient to sever the vacant area into two legally effective condominium units. The applicants and the owners of the other new unit now simply share title to the described area as tenants in common.
Service
5All owners and mortgagees have been put on notice of this application by counsel for the applicants under s. 109 (2) of the Condominium Act, 1998, SO 1998, c 19. The application record was too voluminous to be efficiently and affordably served personally on all owners and mortgagees. I am satisfied from the evidence of the engagement of the board and other owners previously (including at an annual general meeting) and from the letter that was sent to all owners and mortgagees by counsel for the applicants enclosing links to the record and factum, that all interested parties have notice of these proceedings. Accordingly, I direct under Rule 38.06 (1) of the Rules of Civil Procedure, RRO 1990, Reg 194, that further service of the application record and factum are not required.
6Subsection 109 (3) of the Condominium Act, 1998 provides
(3) The court may make an order to amend the declaration or description if satisfied that the amendment is necessary or desirable to correct an error or inconsistency that appears in the declaration or description or that arises out of the carrying out of the intent and purpose of the declaration or description.
7The section describes two instances in which the order sought may be made. In this case, in my view, both apply.
8There is an inconsistency in the existing declaration. It is inconsistent with the facts that have been in existence and under which all owners have been living in the building for several years. The declaration describes a vacant area when in fact two units have not only been developed, but they have been sold and occupied with the assent of all.
9I recognize that there can be narrower interpretations of the section as was discussed by Perell J. in Caras & Callini Group Ltd. v. Peel Standard Condominium Corporation No. 837, 2011 ONSC 7565. I agree with him however, that it is not necessary or appropriate to adopt a narrow approach. Section 109 is specifically designed to correct problems that are beyond the owners’ practical ability to fix. It is truly a remedial section. Therefore, under s. 64 (1) of the Legislation Act, 2006, SO 2006, c 21, Sch F, it ought to be interpreted in a large, liberal, and robust manner to attain its objectives as intended by the Legislature.
10I also agree with Perell J. that each case is to be assessed on its own facts and merits. There is no controversy in this application. The section is not being used to prejudice the pre-existing owners without a proper owners’ vote. In fact, one piece of the “fix” is to properly recognize that the creation of two new units decreases the pre-existing owners’ proportionate shares of common area expenses.
11Here, implementing the “fix” has been made more complicated by the intervention of apparently inadequate legal work. The application is being carried by counsel for the lawyers’ insurer conducting a “repair”. There is no other convenient or adequate manner to ensure that the steps that ought to have been taken years ago are deemed effectively taken.
12In addition, s. 109 (3) allows an order that “arises out of the carrying out of the intent and purpose of the declaration or description”. That is also the case here. The declaration anticipates future development of the vacant areas. Some inadequate or ineffective effort was made to implement the amendments needed to recognize that anticipated development. The order sought is required to carry out the intent and purpose of the declaration and description to give legal effect to the development they anticipate.
13Stepping back, apart from technical compliance, I am satisfied that the orders sought are for a proper purpose that assists in the fulfilment of the statutory scheme.
Disposition
14Accordingly, I have signed the orders as requested.
FL Myers J
Date: October 10, 2022