Court File and Parties
COURT FILE NO.: CV-21-00076277-0000 DATE: 2024-10-09
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Wentworth Standard Condominium Corporation Applicant E. Savas for the Applicant
- and -
Alan and Nancy Bradbury Respondents Self represented
HEARD: May 29, 2024
Reasons for Decision
The Honourable Justice S. Antoniani
Overview
[1] The Respondents Alan Bradbury and Nancy Bradbury are the owners of unit 65 at 60 Cathy Drive in Mount Hope (the “Unit”). The Unit is located within the Wentworth Condominium Corporation No. 321, the Applicant in this proceeding (the “Corporation”). The Corporation is commonly referred to as Twenty Place – Phase 8 and contains a total of 70 town house style residential dwelling units.
[2] The business of the Corporation is governed by a Board of Directors (the “Board”), and the day to day affairs are managed by a local professional management company.
[3] In about April 2019, the Respondents decided that they wished to undertake some renovations of their fenced in backyard space, which was part of their exclusive use common element. The issue in this application arose when the Respondents undertook an expansion of their fenced in space (the “expansion”), whereby they fenced in approximately 34 square feet of non exclusive use common elements (the “Common Elements”) the Corporation. The Applicants allege that the expansion was done without the consent of the Board, and in violation of ss. 97 and 98 of the Condominium Act, 1998, S.O. 1998, c. 19, (the “Act”).
[4] The work done during the expansion, included installation of fencing and fence posts, removal of existing sod, regrading, and installation of new patio stones. The overall outcome was that the Respondents effectively acquired about 34 square feet of additional exclusive use common space, thereby assuming the equivalent amount of common use green space between their condominium and their neighbour.
[5] The Respondents initially sought the consent of the Board, via an email request and two accompanying sketches. In June 2019, the Respondents had proceeded with and completed the expansion. Whether the expansion was completed with the consent of the Board was in issue in the Application.
[6] The Applicant’s position is that the Board was unanimous in their decision to decline the Respondent's expansion request. No other owners have been permitted to extend their exclusive use space, and the Board had determined that providing consent to the Respondents would have likely resulted in other owners wanting the same accommodation, which the Board did not feel was in the best interests of the Corporation. Finally, the Applicant takes the position that the expansion was initiated without the requisite permission and was completed despite clear demands that it be discontinued.
[7] Since 2019, the Board has requested that the Respondents return their fenced in backyard such that it is entirely within the property that is designated for their exclusive use.
[8] The Respondents argue that they did in fact obtain consent for expansion, and in the alternative, that they are treated unequally to other owners because of personal animosity between them and various Board members.
[9] The Applicant brings this application, asking for:
An order that the Respondents forthwith and at their own expense: (i) remove fence posts and patio stones, together with any underlying stone base, encroaching upon the Common Elements; (ii) return the fence posts to their original location; (iii) return or restore the grading of the areas affected by the Respondents’ alterations to its original condition and (iv) install new sodding to the areas affected by the Respondents’ alterations so as to return the grass to its original condition (collectively “the Work”);
An order authorizing the Applicant, failing the Respondents’ compliance with this Court’s order under paragraph 9.1 above, to immediately undertake the Work set out and entitle the Applicant to recover all reasonable costs and expenses incurred whatsoever in connection with performing the Work, as common expenses from the Respondents.
Issues
[10] There are three issues to be determined:
i. Whether the respondents have carried out alterations to the common elements in contravention of ss. 97 and 98 of the Act and or the provisions of the Corporation’s declaration, by-laws, and rules?
ii. If the answer to the above is “yes”, whether there are any legitimate bases offered by the Respondents such that this Court should allow the alterations to remain; and
iii. What relief this Court should order in the circumstances.
Decision
[11] For the reasons that follow, I find that the Respondents have carried out the alterations in contravention of ss. 97 and 98 of the Act, and of the Corporation’s declaration, by laws, and rules. There has been no legitimate basis offered that would cause the Court to allow the alterations to remain. In the circumstances, I allow the Application and grant the relief sought.
Law
[12] Sections 97 and 98 of the Act govern changes to the common elements, either by a corporation or by the owner. The Board controls, manages, and administers on behalf of the owners, and they are obliged to ensure that all owners comply with the statute and the Corporations bylaws and governance. Section 98 addresses changes made by owners. The relevant part of the section reads as follows:
98 (1) An owner may make an addition, alteration or improvement to the common elements that is not contrary to this Act or the declaration if,
(a) the board, by resolution, has approved the proposed addition, alteration or improvement;
(b) the owner and the corporation have entered into an agreement that,
(i) allocates the cost of the proposed addition, alteration or improvement between the corporation and the owner,
(ii) sets out the respective duties and responsibilities, including the responsibilities for the cost of repair after damage, maintenance and insurance, of the corporation and the owner with respect to the proposed addition, alteration or improvement, and
(iii) sets out the other matters that the regulations made under this Act require;
[13] In this case, s. 3.5(b) of the Corporation’s declaration also requires that any alterations to the common elements must be done with the approval of the Board.
[14] Where an owner and or occupant are not in compliance with the Act, the declaration, by laws, and or rules, the condominium corporation may bring an application to the Court for an order directing compliance. The Court may make such an order and require the payment of costs to the condominium corporation: see ss. 132 and 134 of the Act.
[15] The Act does not give a right to any owner to change the common elements on their own decision. The Board of Directors are the gatekeepers. There is no right of appeal from a decision of the Board of Directors. For support of such propositions, see York Condo Corp No 137 v. Hayes, 2012 ONSC 459:
22 …One of the advantages of requiring compliance is that a message is sent, by the board and the court, to unit owners that the declaration, the by laws and rules are in place for a good reason and that they will be enforced. To permit non-compliance opens the door to the non compliance of other unit owners…
23 The general message should be that enforcement will be expected and exceptions will be rare. This is to foster the result that people only move into the condominium if they are prepared to live by the rules of the community which they are joining. If they are not, they are perfectly free to join another community whose rules and regulations may be more in keeping with their particular individual needs, wishes or preferences…
[16] It is common ground that the Respondents required the consent of the Board prior to undertaking the expansion. As indicated, the Respondents’ position is that they did obtain the required consent.
[17] The Respondents argue in the alternative that they were treated unequally to the other owners, and that this situation is appropriate for judicial intervention. Where there is “rampant non-enforcement” by the Board, the Court may exercise discretion to grant homeowners relief: see Peel Condominium Corp. No. 108 v. Young, 2011 ONSC 1786 at paras. 16-27.
[18] Deference should be given to a board of directors: see York Condominium Corp. No. 382 v. Dvorchik, [1997] O.J. No. 278 (C.A.) at para. 5; Hayes at paras. 22-23; York Region Standard Condominium Corp. No. 1076 v. Anjali Holdings Ltd., 2010 ONSC 822, at paras. 9-10; and Metropolitan Toronto Condominium Corp. No. 985 v. Vanduzer, 2010 ONSC 900, at paras. 2-4-25.
Analysis
[19] It is clear that the work done by the Respondents had the impact of extending their patio beyond the limits of the exclusive use common element areas associated with the Unit, and into the non-exclusive use common element areas of the corporation. Pursuant to s. 98 of the Act and to s. 3.5(b) of the Corporation’s declaration, as the alterations impacted the common elements beyond the exclusive use area related to the Unit, the Respondents had the obligation to obtain Board approval. Section 98(1) b of the Act also required that the Respondents and the Corporation enter into an agreement prior to the expansion.
[20] The Applicant suggests that s. 97 of the Act also applies here, but I disagree. That section contemplates work done by the Corporation. In this case, the Respondents never proposed that the Corporation take on or pay for the work, and the Corporation did not consider doing the work. While it is true that the Corporation accepted responsibility to remediate the drainage issue, that work would be pursuant to s. 97(1) and would not be considered an addition, alteration or improvement.
[21] In response to this Application, the Respondents make two substantive arguments:
That they believed they had been granted consent to complete the expansion into the Common Area; and
That they are being treated unfairly by the Board because at least 10 other owners in the same Corporation have been allowed similar expansion of their fenced in patios. The Respondents believe that they are being singled out because of personal animosity between themselves and members of the Board.
Were the Respondents granted consent to proceed with the expansion of their fenced in patio?
[22] The Respondents do not contest the fact that they required Board approval and, at least initially, that Alan Bradbury (“Mr. Bradbury”) did seek Board approval for the proposed expansion.
[23] A brief review of the timeline is required:
a) Mr. Bradbury emailed the Board with a proposal and some sketches, on April 8, 2019.
b) By April 11, 2019, the Board had decided that it needed some clarification regarding the proposal.
c) Between April 11 and April 26, 2019, the Board arranged a site visit with Mr. Bradbury to review and discuss his proposal. It was at this meeting that Mr. Bradbury advocated for the notion that the alterations were also necessary to help him deal with a drainage issue he was experiencing in the rear yard, and that his wife Nancy was experiencing mobility issues and might eventually require a ramp to access their home. Neither the drainage issue nor the possible future ramp requirement were included in the initial proposal, but I do not find either to be relevant to the outcome here. The Respondent agrees that no promises or agreements were made during the site meeting in relation to Mr. Bradbury’s proposal.
d) After the site meeting, Mr. Bradbury wrote to the Board representative Morgan Putnam (“Mr. Putnam”) on April 26, 2019, asking whether Mr. Putnam had been able to make an appointment with the condo’s drainage/landscape expert. On the same date, Mr. Putnam replied, advising “we are actively looking at addressing the drainage in the area of your downspout and we will be back to you shortly”.
e) After those exchanges, on May 7, 2019, Mr. Putnam emailed Mr. Bradbury, advising that “The board has approved the remediation of the drainage issue regarding the downspout on the west side of your residence near the rear of the residence. The approval has been forwarded to the property manager so that the appropriate resources can be marshaled to deal with the issue. Morgan.”
f) In early May, 2019, the Board met and decided to decline the request regarding the expansion of the fenced in yard. They directed that a letter be sent to the Respondents advising of same. A letter was prepared on May 9, 2019, but it was not delivered to the Respondents until May 21, 2019. The Respondent had just commenced work on the expansion that very day.
g) In the result, the only communication from the Board to Mr. Bradbury after the site meeting and before the commencement of the work was Mr. Bradbury’s inquiry about the appointment with the condo’s drainage expert, and then the May 7 2019, response that the Board had approved the remediation of the drainage issue.
[24] It is specifically the email of May 7, 2019 that the Respondents rely on as evidence that they obtained the consent of the Board regarding their entire proposal, including the plan to expand their fenced yard into the Common Area. Thus, the Respondents take the position that the May 7, 2019, email was the consent they required to complete the expansion.
[25] The Applicant takes the position that the May 7, 2019, email was simply the Board agreeing that it would take responsibility for, and arrange for, the drainage issue to be addressed, and that it obviously did not address the balance of the Respondents’ proposal.
[26] In reviewing all of the circumstances that led up to the May 7, 2019, email, and those that followed, I conclude that the Board’s intention in sending the email was to accept responsibility for the drainage work only, and that they did not communicate, and did not intend to communicate, consent for the expansion. Further, I find that it was not reasonable for Mr. Bradbury to conclude that he had been granted approval for the expansion, and I reject the submission that he ever believed that he had obtained such approval.
[27] Several communications followed the May 7, 2019, email, on May 21, May 24, and May 31, 2019. Via those subsequent communications, the Respondents were told in no uncertain terms that they did not have consent and that the Board was demanding that they stop the work.
[28] The Respondents agree that they received those subsequent communications. Their position is that a) they already had the requisite Board consent and so had started work legitimately; and b) having started with the work, they ignored the purported rescinding of the consent as it was not reasonable for them to stop once the work had been started.
[29] In concluding that Mr. Bradbury did not in fact believe that he had obtained the necessary Board consent, I have reviewed his responses to those May 2019, communications. On receipt of the first stop work demand, dated May 21, 2019, Mr. Bradbury’s email response was that he would not stop the work until he was satisfied that “all the other patio extensions in Twenty Place have been removed.”
[30] Mr. Bradbury’s position is that his receipt of the May 21, 2019, letter was the first he became aware that the Board did not approve of his work. I note that his one sentence reply makes no reference to the fact that he thought that he had obtained Board approval. Instead, he responded only that he believed he was not being treated the same as other owners. If Mr. Bradbury believed he had obtained consent, he surely would have stated his belief at that time, rather than alleging unfair treatment.
[31] Then, on June 14, 2019, having completed all of the work, Mr. Bradbury made a reply to the May 31, 2019, stop work demand. The tone of the response is unflattering to Mr. Bradbury and condescending to the recipient. A short excerpt from the email: “I would hope you have more important issues to worry about. In the grand scheme of things who really cares about 2 square meters of paving stones? Melanie, eventually you will move on to other projects and you are not going to care anymore. Eventually the board members are going to retire from the board and they are not going to care anymore.”
[32] Again, I note that Mr. Bradbury does not suggest he has any belief that the required consent had been obtained. In fact, on my review of the record, at no time before the affidavits on this Application is there evidence that the Respondents were acting on the belief that they had obtained the required Board consent.
[33] The May 7, 2019, email makes no reference to an expansion of the fenced in backyard. Had the Respondents actually thought the May 7, 2019, email might represent consent for the expansion it would have been prudent to confirm, given that the email only makes reference to the drainage issue. The May 7, 2019, email suggests that the Corporation will be marshalling the necessary resources. Since the Respondents proposal was to have the work done by their own contractor, one might have expected some communication on this issue.
[34] Mr. Bradbury’s replies are not those of a person who believed that they had consent. I reject the position that the Respondents had an honest but mistaken belief that they had obtained the Board’s consent.
[35] Had the Board approved the alteration, it would have required a resolution of the Board. Further, a s. 98 agreement between the parties concerning the alterations is mandatory, and would have been registered on title to the Unit to legalize the alterations. Other owners would have had the right to have notice, and to provide input. The Respondents were not unfamiliar with the Rules or the protocol, having resided at Twenty Place – Phase 8 for many years, having previously obtained approval on another matter, and having participated actively in the Corporation.
[36] I find that the required Board approval was not given, and that there was no reasonable basis to believe that it was given.
Were the Respondents treated unfairly as compared to other owners?
[37] The Respondents produced photographs of other units which they say were granted the right to build out onto the Common Area. There was no explanation that accompanied the photos, but I accept that they depict other properties with larger fenced in backyards. Mr. Bradbury’s affidavit attests to the proposition that these other homes were granted the permission to expand their fenced patios into the Common Element, but the affidavit does not give the basis for his belief that the Board granted the expansions. It appears that Mr. Bradbury assumed this to be fact. Implicit in his response to the Board that he would stop work when he was satisfied that “all the other patio extensions in Twenty Place have been removed”, is his belief that the other larger backyards were a result of Board consent. In fact, the Respondents provided no evidence as to how the other extensions came to be. There was no evidence from any of the other homeowners indicating that their extended backyards were expanded on consent of the Board.
[38] The Applicants state that the Board had never previously consented to expansion of fenced in patios onto the Common Area. The Applicant states that some homeowners had purchased the expanded rights at a time prior to the establishment of the Corporation. In corroboration, they direct me to an email exchange between Board members in April 2019, while the Respondent’s request was under consideration. In that exchange, Board members were discussing the need to advise the Respondents that their request was denied, and made the following comments:
If we did agree to the request we would be setting a precedent and more requests would likely be received which would undoubtedly be problematic.
The Bradbury’s will most likely be displeased and I think some form of explanation should be provided rather than just “request declined”. They may feel they are being treated unfairly given that some residents have the extra space they are requesting. I think it should be pointed out to them in writing that: Although original owners were able to purchase extra space for a premium from the builder, once the condominium corporation was established and registered, the “exclusive use property lines” were fixed and there is no provision for adjustments.
[39] The above emphasis was added by the Respondents. They contend that the underscored statement is evidence that other owners were given permission to expand their backyard patios. This is obviously not the whole story, as the paragraph clearly continues to explain that some owners were able to purchase additional rights or property before the condominium corporation was established.
[40] Without other evidence on this issue, I am unable to conclude that any other owner was granted permission to expand their fenced in patios after the Corporation and the Board were established, or to conclude that the Bradbury’s were treated differently from others, for personal differences or any reason.
[41] On the basis of the evidence before me, I cannot conclude that the Respondents were treated in a way that was unfair or not in keeping with the Board’s position in relation to other owners, and as such I reject this second argument. This is not a situation which calls for judicial intervention.
[42] My review of all of the communications produced among the Board members during their consideration of the Respondent’s request appear to be considerate of the Respondents, and appropriate given the Board’s mandate to maintain the Corporations bylaws and rule structure.
[43] The question before me is not whether the alterations made by the Respondents improved the property or did not, or whether other owners are prejudiced by the expansion. The Respondents purchased a condominium, which was organized according to its declaration, bylaws, and rules. Other purchasers rely on other owners acting in compliance with the organizational structure, and the condominium corporation is expected to require individual owners to comply with the declaration, by laws, and the rule structure. The fact that the expansion has been in place for five years does not favour leaving it in place, in all of the circumstances before me.
Order
[44] The Respondents shall, at their own expense: (i) remove the fence posts and extra patio stones, together with any underlying stone base, encroaching upon the Common Elements; and (iii) install new sodding to the areas affected by the Respondents’ expansion so as to return the grass to its original condition (collectively “the Work”);
[45] During the hearing of the application, I was informed that the Applicant has replaced the fences for all of the owners of the Corporation units. The new fencing on the Respondent’s property has not yet been replaced, pending a determination of this Application. As such, once the Respondents remove the fence, fence posts, and additional patio stones, as well as restore the sodding, the replacement of new fencing in the original position will be undertaken by the Applicant.
[46] The grading alteration made by the Respondents may be left in place. I was advised during the hearing that the grading alteration has had the desired impact of preventing the water and drainage issues that the Respondents were experiencing. The Applicants via their counsel have agreed that the new fence can likely be returned to its original position with some accommodation while leaving the altered grading in place.
[47] The Respondents shall have 45 days to complete the Work. The Applicant shall act expeditiously to replace the fencing once the Work has been completed by the Respondents.
[48] I authorize the Applicant, failing the Respondents’ compliance with this Court’s order under paragraph 44 above, immediately upon the expiry of 45 days, to undertake the Work set out, and the Applicant shall recover all reasonable costs and expenses incurred whatsoever in connection with performing the Work, as additional common expenses from the Respondents.
Modification of Schedule to coordinate Respondents’ work with that of Applicant
[49] In the event that the parties come to a mutual agreement in relation to a modified schedule for the Work that I have ordered the Respondents to undertake, perhaps in order to have it coincide appropriately with the timing of the Applicant’s installation of the new fencing, I am happy to sign an Order that modifies, on consent, the particulars of the work and the timelines herein.
Costs
[50] I would urge the parties to agree on costs. If the parties are unable to agree, then costs submissions may be made as follows:
a. Within 15 calendar days of the distribution of these reasons to counsel, the Respondents shall serve and file their written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers;
b. The Applicant shall serve and file its responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, within 25 calendar days of the distribution of these reasons;
c. The Respondents’ reply submissions, if any, are to be served and filed within 30 calendar days of the distribution of these reasons, and are not to exceed two pages;
d. If no submissions are received within times allocated by either party, said party shall be deemed to have no submission; and
e. If no submissions are received by either party, the parties will be deemed to have resolved the issue of the costs, and costs will not be determined by me.
S. Antoniani J.
Released: October 9, 2024