al., 2026 ONSC 3866
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: )
GREY STANDARD CONDOMINIUM CORPORATION NO. 115
) Danielle Marks and Jamie Cockburn
) for the Applicant
Applicant )
- and - )
ALL UNIT OWNERS AND ) Errol Treslan, for the Owner
MORTGAGEES OF RECORD OF GREY STANDARD CONDOMIUM CORPORATION NO. 115
Respondents
) 2736003 Ontario Inc.
) HEARD: April 2, 2026 REASONS FOR JUDGMENT
Fowler Byrne J.
[1] The Applicant Grey Standard Condominium Corporation No. 115 (“GSCC 115”) is a condominium corporation duly registered pursuant to the Condominium
Act, 1998, S.O. 1998, c. 19 (“Act”), located at on the corner of 9th Street West and 1st Avenue East, in Owen Sound, Ontario.
[2] GSCC 115 was created on or about August 14, 2019, upon the registration of a Declaration (the “Declaration”), and a Description (the “Description”), at Land Registry Office No. 16 at Grey. The building consists of 34 residential units, 2 commercial units, 2 signage units, 9 parking units, and common elements that include additional parking.
[3] The construction of GSCC 115 has a tortured past, as will be detailed below, but is also now close to being fully complete. All units have been sold, and the only work left is the construction of the common element roof-top terrace and floating dock. The constructed building and parking garage occupy the entire property parcel. There is no room to expand.
[4] Both GSCC 115 and the Respondent have brought applications. The basis of both applications is that the Declaration and Description do not accord with what was actually built. GSCC 115 seeks the following:
a) An order to amend the Declaration at Article V, section 2, to remove the requirement that each residential unit be allocated at least one (1) common element parking space;
b) An order deleting the description of the Applicant and replacing same with a new description to be prepared by the Applicant’s land surveyor, to align with the aforementioned amended Declaration.
(“GSCC 115 Application”)
[5] All of the unit holders and the associated mortgagees were provided notice of the GSCC 115 Application. The only Respondent that filed any materials in opposition was 2736003 Ontario Inc., (“273”) which owns 9 residential units, 6 parking units, 2 signage units and 2 commercial units.
[6] In addition to opposing the amendments, 273 has brought its own application, wherein it seeks a declaration that the conduct of GSCC 115 is oppressive and is unfairly prejudicial towards it. It seeks a finding that GSCC 115 is in breach of its Declaration and should be required to conform with same. Finally, it seeks an order that four common element parking spots be allocated to 273 as exclusive use common element parking spots, or in the alternative, it requests its own amendments to the Declaration, so that parking spots be allocated more equitably, and that it be compensated for its damages, in the sum of $356,810 (“273 Application”).
[7] On the day of the hearing, the Respondent also brought a motion seeking to adjourn the matter entirely and convert both applications to an action, with a prescribed timetable leading to trial.
[8] There was also a request that I “take a view” of the Property itself so as to better understand the parking situation. Despite that request which was communicated to me through staff, I see no such relief requested in the Notice of Motion or in 273’s Notice of Application. Accordingly, I did not “take a view” and will not order it here.
[9] I therefore have three issues to determine:
a) Should this hearing be adjourned so that both applications can be converted to an action?
b) Should the Description and Declaration be amended?
c) Has GSCC 115 been, or threatened to be, oppressive or unfairly prejudicial towards 273? Is so, what remedy is appropriate?
[10] For the reasons that follow, I am granting the GSCC 115 Application and am dismissing 273’s motion and the 273 Application.
Issue 1: Should these Applications be Converted to an Action?
[11] The GSCC 115 Application was commenced by way of Application, pursuant to s. 109 of the Act, originally returnable on December 18, 2024.
[12] The GSCC 115 Application was adjourned on a number of occasions, to allow 273 to file responding materials, and to file its own application. Eventually, in late March 2026, in anticipation of this hearing, the parties confirmed they were ready to proceed, based upon a previously agreed upon timetable. Shortly thereafter, 273 raised the issue of converting the matter to an action. They served their motion seeking to adjourn this hearing and convert the applications on March 31, 2026, two days before this hearing.
[13] While the motion was served and filed late, I will abridge the necessary time and consider it on its merits.
[14] As indicated, the basis of the motion is that the GSCC 115 Application and the 273 Application should both be converted to an action. It is alleged that there are material facts in dispute, most notedly GSCC 115’s position that it is impossible to comply with the current Declaration and assign one common element parking space to each residential unit owner. 273 wants an opportunity to retain an expert to see if the parking garage can be reconfigured to fit in all the necessary spaces.
It is argued that the genuine issue that requires a trial is whether 34 common element parking spaces can be accommodated. 273 argues that GSCC 115 has insufficient evidence in which to decide this issue and that a trial should take place.
Law
[15] Where the legislature has stipulated that a proceeding may be brought by application, there is a prima facie right to proceed by application, and the matter should not be converted into an action without good reason: Sekhon v. Aerocar Limousine Services Co-operative Ltd., 2013 ONSC 542, at paras. 48-51; Metropolitan Toronto Condominium Corporation No. 965 v. Metropolitan Toronto Condominium Corporation No. 1031, 2014 ONSC 4458 (“MTCC 965”), at para. 10.
[16] When deciding whether to convert an application to an action with a trial, I should consider whether there are relevant facts in dispute, whether there are complex issues, whether there is a need for the exchange of pleadings, and the importance and nature of the relief sought: MTCC 965, at para. 13; Carleton Condominium Corporation v. Poirier, 2021 ONSC 3778 (“Poirer”), at para. 36.
[17] A dispute as to any facts is not the test for whether conversion of an application to a trial is required. The disputed facts must be relevant and material to the issues to be determined: Poirier, at para. 32; Canada Post Corp. v. G3
Worldwide (Canada) Inc., 2007 ONCA 348, at para. 41, leave to appeal to SCC refused, 2007 CanLII 46216 (SCC).
Analysis
[18] For the GSCC 115 Application, there are no material facts in dispute. As will be detailed below, the wording of the Declaration is clear, and the Description is clear. The actual property as built clearly does not conform with the Declaration or Description. No one disputes this. It is also clear on the record that this difficulty was known to 273 when they purchased the various units in November 2020. The issue of the parking was a frequent agenda item at the meetings of unit holders since 2020. 273 would have had notice of these meetings since the end of 2020.
[19] In deciding the GSCC 115 Application, I need only consider if the amendment is appropriate considering the grounds in s. 109(3) of the Act. The correct Declaration and Description do not accord with reality with respect to parking and storage lockers. There are no material facts in dispute that would prevent me from making that decision.
[20] With respect to the 273 Application, it seeks a finding of oppression or unfair treatment. That being said, the evidence filed in support of their application relies on facts that are not contested. 273 bought units for which there was no
available parking. What is contested is what the solution to the parking issue should be. Accordingly, there are no material facts in dispute in the 273 Application that would prevent me from deciding this without a trial.
[21] As well, the issues before me are not complex. There is no need for the exchange of pleadings. In fact, 273 argued that if the matter was converted to an action, the materials already filed would suffice as pleadings. While the issues before me are important, I am satisfied that they can be determined on the affidavit evidence and the transcripts of cross-examinations.
[22] Accordingly, I do not find it necessary to convert this matter to an action, and therefore there is no reason to grant the adjournment.
Issue 2: Should the Declaration and Description be Amended?
[23] As indicated, the facts are largely uncontested.
[24] GSCC 115 was originally developed by Sydenham Properties Inc. (“Sydenham”), who was the “declarant” of the condominium. Given financial and solvency issues, Sydenham was unable to finance the construction of the Condominium to completion. Sydenham abandoned the project prior to construction being completed on the 6th and 7th floors, the amenity spaces, and portions of the building envelope.
[25] Despite the non-completion, Sydenham registered the Condominium on or about August 14, 2019, by registering on title the Description and the Declaration. The Description that was registered showed 34 residential dwelling units, 2 commercial units, 2 signage units, 9 parking units, and various common elements, which included parking spaces for 35 cars, as well as the location and configuration of storage units. The total parking spots, including the parking units and the common element parking, provided for a total of 44 parking spots. The Declaration registered by Sydenham called for the allocation of one common element parking space for each of the 34 residential units, and a visitor parking spot.
[26] At some point in the construction project, Sydenham decided to add two more units to the residential part of the project, which impacted the available parking. There was some discussion about reducing the number of parking units, and adding them to the common element parking, but it was not done. Sydenham registered the Declaration and Description, which did not reflect that intention to reduce parking, nor were any amendments subsequently made by Sydenham.
[27] In November of 2019, The Corporation of The City of Owen Sound (the “City”) granted partial occupancy for some residential units, on the condition that access to the uncompleted 6th and 7th floors, and unoccupied suites be blocked.
[28] Eventually, one of Sydenham’s creditors – Meridian Credit Union Limited – applied to have a receiver appointed. On March 10, 2020, a receiver, MSI Spergel Inc. (“MSI”) was appointed.
[29] In the course of its work as a receiver, MSI sold all remaining units to 273, which consisted of 12 residential units, the 2 commercial units, the 2 signage units and 4 parking units, on an “as is, where is” basis. As part of the vesting order that followed, on November 25, 2020, the court also ordered that no application could be brought pursuant to s. 107 or s. 109 of the Act to amend the Declaration and Description of the Condominium Plan for the Applicant without the consent of 273 and the Receiver, or pursuant to further Order of this Court. The Applicant argues that this order is no longer applicable as the receiver has been discharged. Nonetheless, the vesting order does allow for an amendment by court order, which is now being sought.
[30] MSI was discharged on April 15, 2021.
[31] GSCC 115 was left with a very risky and urgent situation. It had a building that was incomplete. To deal with the situation, the volunteer Board of Directors had to retain new professionals and contractors to negotiate emergency relief through Tarion, and complete construction on the property. It had to engage a private lender; it had to pass a borrowing by-law to allow the lender to advance
funds to pay for part of the balance of construction. In addition to funding from Tarion, the unit holders raised funds by issuing special assessments to unit owners and by binding the unit owners to a loan through the passing of a borrowing by-law. As progress on the building proceeded there were numerous meetings with the unit holders to keep them advised as to the status.
[32] The construction continued through 2024 and is nearly complete. The only work left is the construction of the common element roof-top terrace and the floating dock. The completed construction leaves two main deficiencies with the as-built property, relative to the original design and what was contained in the registered Declaration and the Description, which is the basis of the GSCC 115 Application. The two main deficiencies are:
a) Provision in the design, Declaration and Description for parking spaces that were never constructed; and
b) The location and configuration of storage lockers in the design and Description.
[33] With respect to the parking, the original design of the GSCC 115 building was to include a two-level parking garage with 44 parking spaces – 16 on the main level and 28 on the lower level. Of the 44 spaces, 9 of them were to be parking
units, with their own property identification number (PIN) to be registered on title. The other 35 spaces were designed to be common element parking spaces.
[34] Unfortunately, given construction deficiencies, the parking garage was built to only include 39 of the parking spaces – 15 on the main level and 24 spaces on the lower level. The 9 spaces which had their own PINs remained, but only 30 parking spots were available in the common elements – 5 fewer than originally planned.
[35] In order to assist it, GSCC 115 hired a professional engineer, Mr. John Grebenc, to examine the parking garage and determine if the situation could be remedied. Mr. Grebenc reviewed prior drawings and investigated the site. He noted that he found other drawings that called for fewer parking spots than were eventually set out in the Description. He found that building supports, built-in duct work, protective bollards, and the width of certain parking spaces made a number of the planned parking spots untenable. In his report dated November 5, 2020, he recommended that it be reduced to 38 spots, but GSCC 115 was able to fit in 39 spots.
[36] The result is that there can be no allocation of one common element parking spot for visitor parking. There are now only 30 common element parking spots for the 34 residential units, preventing one common element spot from being
allocated to each residential unit holder as required in the Declaration. All the unit holders, prior to 273, had a common element parking space allocated to them. By the time 273 purchased the remaining residential units, there were only common element parking spots available for all but four units.
[37] MSI was notified of the common element parking deficiency prior to it selling the remaining units to 273. They were advised in April 2020, that the additional five units were physically impossible. MSI was further advised in October 2020, that while the Board was entitled to allocate and reallocate specific common element parking spaces to particular residential units, this aspect of the Declaration could no longer be satisfied without using the Parking Units with PINs. MSI acknowledged receipt of this information in April 2020 and October 2020, respectively.
[38] Upon being served with the motion for the sale of the various units to 273, counsel for GSCC 115 wrote to the receiver and advised of the parking deficiencies related to the units that were to be sold to 273. GSCC 115 advised that it would not oppose the sale as long as the receiver agreed to certain terms, including one that the purchaser be made aware of the condo’s intention to amend the Declaration and Description to resolve the parking situation in accordance with the
recommendations of its expert, which would probably result in the deletion of available parking spaces for the units which were to be sold.
[39] There was also direct communication between counsel for the Applicant and 273, who understood that the parking situation was not settled.
[40] As for the lockers, as built, they do not conform with the Description. There is a slight difference in their location and configuration. While nothing is required of the Declaration to ensure conformity, the Description needs to be corrected to show their proper location and dimensions. There is no opposition to these amendments.
Law
[41] Pursuant to s. 109 of the Act, I may order that the condominium declaration or description be amended if I am 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 carrying out the intent and purpose of the declaration or description.
[42] The application of s. 109 is fact driven and each case must be decided on its own facts: Caras & Callini Group Ltd. v. Peel Standard Condominium Corporation No. 837, 2011 ONSC 7565, at para. 40; Metropolitan Toronto
Condominium Corporation No. 590 v. Registered Owners, 2019 ONSC 4484, at para. 55.
[43] Section 109 is specifically designed to correct problems that are beyond the owners’ practical ability to fix. It is a remedial section. It ought to be interpreted in a large, liberal and robust manner to attain its objectives, as intended by the legislature: Paquette v. Cochrane Condominium Corporation No. 4, 2022 ONSC 5717, at para. 9.
[44] It is desirable that a condominium declaration accord with how the condominium building was actually built and sold: Caras, at para. 44.
Analysis
[45] It is clear that the Description and Declaration do not accord with the actual constructed project. It is also clear that an amendment may be made if I am satisfied that it is necessary and desirable to correct an error or inconsistency in the Declaration or Description.
[46] There is no reason why these amendments should not be granted. There is an inconsistency. The Description and the Declaration must accord with what exists. It would leave GSCC 115 exposed to legal liability to leave them as is, misrepresenting what was built. While the parking situation leaves 273 at a
disadvantage as to parking, I have no evidence of any other solution. There is no room to expand the parking garage. 273’s suggestion to adjourn to try to find such evidence comes over five years following their purchase of the units. They have provided no other alternative in the preceding years.
[47] In addition, there is nothing preventing GSCC 115 from trying to find another solution in the years to come, as residential units and parking units are sold and repurchased by new owners. In addition, 273 is not without remedy, even if the Declaration and Description are amended. At s. 132(4), the Act provides for a mediation and arbitration process to resolve disputes between a condominium corporation and a unit holder. GSCC 115 has already engaged in that process with a unit holder and will participate in any mediation/arbitration process which may be initiated by 273. The Declaration and the Description though, need to be amended to accord with the reality of the situation.
Issue 3: Are the Actions of GSCC 115 Oppressive?
Law
[48] Pursuant to s. 135 of the Act, 273 may apply for a determination that the conduct of GSCC 115 is or threatens to be oppressive, or unfairly prejudicial to 273, or unfairly disregards its interests. If I so find, I can make an order rectifying
it. This rectification can include an order prohibiting certain conduct or an order requiring the payment of compensation.
[49] Oppression will be made out if there has been a breach of a claimant’s reasonable expectations, and the conduct complained of amounts of “oppression”, ”unfair prejudice” or “unfair disregard”. The subjective expectation of the claimant is not conclusive; it should be viewed objectively. The question is whether the expectation is reasonable having regard to the facts of the specific case, the relationship at issue and the entire context including the fact that there may be conflicting claims and expectations: Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667 (“MTCC 1272”), at para 6; Noguera v. Muskoka Condominium Corporation No. 22, 2020 ONCA 46, at para. 17.
[50] The powerful remedy under s. 135 of the Act protects legitimate expectations and not individual wish lists. The court must balance the objectively reasonable expectations of the owner with the condominium board’s ability to exercise judgment and secure the safety, security and welfare of all owners and the condominium’s property and assets: McKinstry v. York Condominium Corp. No. 472, 2003 CanLII 22436 (ON SC), 68 O.R. (3d) 557 (S.C.), at para. 33.
Analysis
[51] What is 273’s reasonable expectation? In essence, they claim a reasonable expectation that GSCC 115 will find a resolution to the parking issue that does not unduly prejudice 273. They are not alleging that GSCC 115 has already treated it unfairly, but that it will by amending the Declaration and Description as requested.
[52] Unfortunately, 273 has not established that GSCC 115’s conduct to date, or the proposed amendments, have been oppressive in any manner. GSCC 115 is making the best of what was an unfortunate situation, starting with an insolvent developer, a building design not yet finalized and parking issues not addressed by the receiver. The condominium unit holders were left “holding the bag” and completed GSCC 115 to the best of their ability, given the space and construction that occurred. 273 argues that GSCC 115 has not made sufficient efforts to comply with the Declaration and Description, but the evidence does not support this submission. There is no more physical space to expand. The Board consulted an engineer to find out how they could make the most of the space they had. It made its best efforts and is acting in accordance with its engineer’s recommendations regarding safety and usability of the parking spaces available. 273 has provided no other evidence, other than a request for a further adjournment to see if someone else could find a solution. It has been over five years since they purchased their units, and several of them have been sold already.
[53] The evidence is clear that 273 understood the parking situation when they purchased their units:
a) GSCC 115 notified the receiver, through counsel, as early as April 2020 that there were parking deficiencies; an architectural schematic was provided showing that they could not allot one common element parking space to each residential unit due to the construction of the Property;
b) The solicitor for the receiver acknowledged that five parking spots are unavailable and that this could negatively impact the value of the condominium units;
c) Counsel for 273, on the purchase, was aware of the parking deficiencies and GSCC 115’s intention to amend the Declaration, prior to closing;
d) The deficiencies were known when the price on the units was negotiated between 273 and the receiver;
e) 273 acknowledged that it was aware of the parking deficiencies prior to closing, but it decided to close on the transaction in any event on
December 10, 2020, “as is, where is” believing that they would
eventually find a solution;
f) Prior to the motion brought on the eve of this hearing, 273 never had their own expert review the parking garage, nor did they ask GSCC 115 if they would be permitted to do so;
g) 273 has already resold some of the units it purchased.
[54] In MTCC 1272, a unit holder brought an application under s. 135 claiming that the respondent developer acted oppressively in not providing for a cost-sharing agreement for the freehold unit owners on the main floor of their condominium. The application judge rejected the unit holder’s argument that their reasonable expectations were not met primarily on the basis of the representations and agreements that accompanied the condominium unit purchase and sale transactions. The Court of Appeal upheld that finding.
[55] Similarly, in Hakim v. Toronto Standard Condominium 1737, 2012 ONSC 404, the unit holders alleged oppression on a number of grounds. One was that the condo installed a beam at the entrance of the parking garage that prevented them from parking there. The beam was installed to enforce a pre-existing height restriction. The court found that the unit holder was, or should have been, aware
of the parking height restrictions from the time they moved in. The board’s attempts
to enforce the restrictions was not oppressive conduct.
[56] Based on the foregoing, I cannot find that 273’s expectation was reasonable. It cannot be oppressive conduct on the part of GSCC 115 to amend the Declaration to eliminate the allocation of one common element parking spot per unit, to the detriment of 273, when 273 was well aware of the parking deficiency and knew that it would be detrimentally impacted. With this clear knowledge, 273 closed the sale transaction anyway, hoping to find a resolution afterwards.
[57] 273 is not without remedy, even though the Declaration and Description are amended. As stated earlier, s. 132(4), the Act provides for a mediation and arbitration process to resolve disputes. It is necessary though to amend the Declaration and the Description first.
[58] With respect to 273’s request for a declaration that GSCC 115 is in breach of its Declaration and the Act, GSCC 115 has brought this Application to rectify the situation. With the amendment granted, GSCC 115 is no longer in breach.
Conclusion
[59] Accordingly, for the foregoing reasons,
a) The GSCC 115 Application is granted, as signed;
b) 273’s motion to convert these applications to an action is dismissed;
c) The 273 Application is dismissed; and
d) If the parties are unable to settle the issue of costs themselves the Applicant shall serve and file its Bill of Costs, any offers served, and written costs submissions, limited to 4 pages, double-spaced, on or before July 24, 2026; the Respondent shall serve their Bill of Costs, any offers served and their written costs submissions, limited to 4 pages, double-spaced, on or before August 14, 2026; The Applicant may, if it wishes, serve and file reply written costs submissions, limited to 2 pages, on or before August 28, 2026.
Released: July 2, 2026
al., 2026 ONSC 3866
COURT FILE NO.: CV-00000234-0000
DATE: 2026 07 02
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Danielle Marks and Jamie Cockburn for the Applicant
- and -
Errol Treslan, for the Owner 2736003 Ontario Inc.
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: July 2, 2026