A starting point for any discussion about condominium authority and organization is the fact that condominium corporations are not natural beings. They are created by statute, and the whole of their rights, authority, duties, and responsibilities depends entirely upon what their originating statute grants them.

The Condominium Act, 1998 (the “Act”) sets out precisely the four sources of legitimate governing authority for every condominium corporation in Ontario: first, the Act itself (including its regulations); and thereafter, in descending order, the condominium’s particular declaration, by-laws, and rules.¹ There are no other enforceable governing documents described or authorized under the Act. Yet other valid documentary tools are useful for the effective organization and operation of the condominium.²  One category of those is policies.

Particularly since the COVID-19 pandemic erupted, the essential distinction between policies and rules in condominiums has been somewhat clouded. Since, in a general context (not specific to condominiums), the terms do occasionally have interchangeable uses, some in the condominium industry seem to have assumed that they can also have equivalent status in this context. Even in one Superior Court case in Ontario from that period3, the court, in upholding a masking “policy,” referred to the condominium’s authority to make rules under section 58 of the Act. Whether this was a mistake depends on facts that aren’t evident from the written judgment, but condominium boards and managers would do well not to assume, based on that case or others like it, that rules and policies in a condominium have the same authorit.

They do not.

Condominium rules are formally enacted provisions or statements that govern the conduct of condominium owners, occupants, and guests. They state definitively what kinds of conduct are required, permitted, or prohibited in specific circumstances.

Under the Act, rules are restricted to a particular scope: They must be reasonable, consistent with the Act, declaration, and by-laws, and either “promote the safety, security or welfare of the owners and of the property and the assets, if any, of the corporation,” or “prevent unreasonable interference with the use and enjoyment of the units, the common elements or the assets, if any, of the corporation.”⁴

Because of its authoritative, governing, and enforceable status, the Act establishes a strict procedure for enacting, revising, or repealing rules. This process involves a transparent, public notice to all owners in the condominium and an opportunity for them to either implicitly or expressly show their opposition or support.⁵

Policies, on the other hand, are not defined in the Act at all. Where the term appears, it refers almost exclusively to insurance policies, with one exception where it refers to government policies relating to the Condominium Authority of Ontario (CAO). Therefore, our use of it must give the word its most common meaning in relation to organizational governance, which is that policies are internal statements of principles, values, and intentions that guide decision-makers in their exercise of discretionary authority. 

Since condominium governance is the responsibility of its board of directors, they make its policies; unit owner input and approval are not required. Policies may be made about any of the condominium’s areas of responsibility, not just issues that fall within the scope of the condominium’s rule-making authority. Though they should be formally enacted by resolution (agreeable with subsection 32 (1) of the Act), they are not necessarily subject to public disclosure and may be modified or disregarded at will (subject to the board’s general obligations to act reasonably and in honesty and good faith). Lastly and importantly, as noted above, policies are not among the kinds of documents that the Act permits a condominium to require owners, occupants, or others to comply with.

The distinction between policies and rules has been critical in a few cases that have come before the Condominium Authority Tribunal (the “CAT”), which may serve to illustrate the potential consequences of confusion about these documents.

In Boodram v. Peel Standard Condominium Corporation No. 843, 2021 ONCAT 31, Martis v. Peel Condominium Corporation No. 253, 2021 ONCAT 110, and Tartakovsky-Guilels v. York Region Condominium Corporation No. 829, 2024 ONCAT 152, for example, the CAT found that the condominiums were seeking to impose restrictions on owners’ conduct without enacting such restrictions as rules, but setting them out only as policies. While acknowledging that condominiums may implement policies for various reasons (such as providing a framework for decision-making or guidelines for enforcing compliance), each of these cases found that the condominiums’ policies represented (whether deliberately or not) an attempt to “bypass” the requirements of section 58 of the Act (which, as one decision points out, “exist to give the condominium unit owners a say in how the condominium corporation governs itself”6), rendering them, in every case, “neither valid nor enforceable.” 

On the other hand, the CAT has also occasionally acknowledged potentially appropriate uses of policies to guide board decisions and actions (regardless of whether the specific policies in question were upheld), such as in Bogue v. Carleton Condominium Corporation No. 228, 2021 ONCAT 67 (communications policies), Roumy v. York Condominium Corporation No. 50, 2022 ONCAT 109 (protocols for handling requests for records) and McNulty v. Toronto Standard Condominium Corporation No. 1553, 2024 ONCAT 128 (specifying degrees of enforcement of visitor parking rules).

While a past cloud of confusion can be attributed to the once immediate desire to ensure public safety during the COVID-19 pandemic, it is important for condominium managers and directors to possess and apply a correct understanding of the different uses and purposes of each type of document relevant to condominium operation and governance, to ensure they are each, in their different ways, both effective and enforceable.

Michael Clifton, BA, MA, LLB, LCCI, ACCI is a member and vice-chair of the Ontario Condominium Authority Tribunal. Michael has practiced condominium law extensively for developers, boards, managers and owners of condominiums in Ontario since 2002. He is currently employed as an Associate Counsel in the Waterloo Office of Miller Thomson LLP. Michael intends to retire from legal practice on December 31, 2025, but will continue working with the Tribunal and providing private mediation and arbitration services in relation to matters that are outside of the Tribunal’s jurisdiction.
www.linkedin.com/in/michael-h-clifton-condolaw

1    See, for example, the various provisions in section 119 of the Act.
2    Including, for example, board resolutions and section 98 agreements. Though described in the Act, such documents are either not “enforceable” (as in the former case) or not “governing” (as in the latter). 
3    Halton Condominium Corp. No. 77 v. Mitrovic, 2021 ONSC 2071 (CanLII)
4    See subsections 58 (1) and (2) of the Act.
5    See subsections 58 (6) and (7) of the Act.
6    Martis v. Peel Condominium Corporation No. 253, 2021 ONCAT 110, par. 21.
 

View PDF View Flipbook Back to Latest Issue