Suppose you are a property manager or board member of a condominium corporation. A unit owner refuses to comply with its obligations under the Condominium Act, 1998, S.O. 1998 c. 19 (the “Act”). What are your options? This scenario came before the Ontario Court of Appeal in the recent decision of Halton Condominium Corporation No 61 v. Kolarovaliev, 2024 ONCA 848 (“Halton Condominium”), which involved a dispute between a resident and the condominium corporation over a no smoking rule.

In this case, the owners (the “Homeowners”) of a condominium unit in a high-rise building in Oakville resided at the property since 2006.[1] Halton Condominium Corporation No. 61 (the “Condo Corporation”) enacted various rules that governed the use and operation of its units and common areas.[2] Initially, the rules permitted smoking in units and in the common areas but, in 2018, the Condo Corporation passed a no smoking rule (the “Non-Smoking Rule”).[3] Pursuant to the Non-Smoking Rule, those residents who still wished to smoke could do so if they notified the Condo Corporation in writing that they would only smoke under certain conditions (the “Grandfathering Agreement”). These included using the exhaust fan and keeping windows and doors shut while smoking, as well as otherwise ensuring that smoking would not damage the property or unreasonably interfere with another person’s use or enjoyment of their unit or the common elements.[4] The Grandfathering Agreement would be revoked if its terms were breached. The Homeowners agreed to comply with these conditions.

Months later, neighbours began to complain about a strong smell of cigarettes emanating from the Homeowners’ unit. The neighbours complained that the strong odour was noticeable in the corridor, on their balconies, and at times in their units.[5] Eventually, the Condo Corporation sent a letter to the Homeowners stating that if they continued to violate the terms of the Grandfathering Agreement, it would be revoked and the Condo Corporation would seek a remedy.[6] The Homeowners and Condo Corporation attempted to resolve the matter through mediation but were ultimately unable to do so. The Condo Corporation then brought an application under s. 134 of the Act to enforce the Non-Smoking Rule.[7]

The judge found that the Homeowners violated the terms of the Grandfathering Agreement on multiple occasions, and the Condo Corporation was empowered to enforce the Non-Smoking Rule. In reaching his conclusion, the judge highlighted various legal principles that condominium managers and boards should bear in mind:

• A condominium corporation’s declaration, description, by-laws, and rules are “vital to the integrity of title acquired by the unit owner” and are binding on all unit owners.[8]

• Condominium by-laws and declarations should be strictly enforced by the courts so that there is consistency and certainty in the application of the rules. Courts must enforce condominium by-laws unless they are clearly unreasonable or contrary to the Act. It is not the job of the courts to review by-laws to determine whether they are fair.[9]

• Under the Act, no person can take actions in a unit, the common elements, or with respect to the assets of a condominium corporation that are likely to damage the property or assets or to cause injury or illness to an individual. Furthermore, persons cannot carry on activities that cause a nuisance, annoyance, or disruption to an individual unit, the common elements, or the assets of a condominium corporation.[10]

In Halton Condominium, the court held that the Condo Corporation had a statutory duty to enforce the terms of the Non-Smoking Rule, just as with other rules, by-laws, and the
declaration.[11] Although the Homeowners attempted to argue that they were the victims of a vendetta against them by their neighbour and the Condo Corporation,  the court did not accept this argument and noted that, in fact, the Condo Corporation was “willing to bend over backwards to resolve the smoking issue” without having to resort to a court application.[1]

Although this case dealt with a dispute over smoking, condominium corporations can encounter a variety of challenging situations including aggressive and hostile residents, physical altercations, or debts owing. Such occurrences, among others, can also be addressed by the court as a last resort to ensure compliance with the Act and the condo corporation’s governing documents.

Mordy Mednick is a partner in Dickinson Wright’s Commercial Litigation Group with a particular focus on business disputes and Blockchain and Cryptocurrency fraud. As a partner, Mordy has worked on a number of matters, including contractual and shareholder disputes, fraud, misrepresentation, construction and real estate matters. During this time, he has frequently  attended before the Ontario Court of Appeal and the Ontario Superior Court of Justice and conducted numerous trials, motions and mediations.

Nicholas Tkach is an articling studentat Dickinson Wright’s Torontooffice and previously summered at the firm. After his first year of law school at the University of Ottawa, Nicholas worked as a summer student in the legal department of a federal Crown corporation. Prior to law school, Nicholas worked at an alternative investment management firm and a global commercial real estate firm.
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