Corporation’s Parking Policy was not Enforceable
In the case of Tartakovsky-Guilels v. York Region Condominium Corporation No. 829, the condominium corporation’s Declaration stated that parking spaces on the common elements were only to be used by visitors.
The condominium corporation also had a parking policy (presumably created by resolution of the Board) which required that visitors parking vehicles be registered with the Corporation (as well as related procedures and restrictions respecting the registration process). Failure to comply could result in the vehicle being ticketed or towed.
The condominium corporation had purported to enforce the policy against the Applicant owner (for instance by arranging for the owner’s vehicle to be ticketed).
The Tribunal held that the policy was not enforceable, because it had not been properly passed as a Rule of the Corporation. The Tribunal said:
The Respondent’s position in this case is, in essence, that it is entitled to govern by policy what the Act permits it to govern through its Rules, and that its informal policies are fundamentally the same and are equally enforceable as its Rules. The Respondent is incorrect. While corporations may adopt rules governing the use of their visitor parking facilities, the Act does not authorize condominium corporations to impose the types of restrictions outlined in the Respondent’s visitor parking policy through a policy, or to side-step the formal requirements of s. 58.
This decision raises the following important questions: In a condominium setting, is there any reason for policies? Are policies ever enforceable? In my view, the answer is as follows:
Policies can express the procedures and principles that will be followed and applied by the condominium corporation in certain situations. In other words, many policies are not binding upon the owners as such. Again, many policies simply provide information (to the corporation and to the owners) as to how the corporation will handle certain situations. As such, many policies are only binding on the corporation. If the corporation then fails to follow the policy, one or more owners may assert that the corporation is failing to meet its fiduciary or statutory duties to the owners.
So again: Policies can be a useful (and sometimes legally mandatory) way for the corporation to record how the corporation will handle certain situations.
- A policy is passed by Board resolution. And the policy is often provided to owners (for their information). [Providing the policy to the owners is – in many cases – part of the process for “bringing the policy into effect”.]
- On the other hand: A Rule is of course passed in accordance with Section 58 of the Condominium Act. A Rule can include “dos and/or don’ts” for owners – and (if properly passed and in compliance with Section 58) can be enforced against the owners.
- Here are some examples of policies that may make sense and/or are legally required for a condominium corporation:
- A Workplace Violence and Harassment Policy.
- A Human Rights Policy.
- A Customer Service Policy (under the Accessibility for Ontarians with Disabilities Act).
- A Privacy Policy.
- Other specific policies may sometimes make sense (and may in fact help with enforcement of the governing documents) if the policy is designed to clarify or explain an existing provision in the governing documents (i.e. an existing provision in the Declaration, By-laws or Rules) which must be enforced by the Corporation. So, in other words, a policy can provide helpful information about how the Corporation interprets and enforces a provision that is already existing under the governing documents. In these cases, the policy might well be enforceable (against owners) in the sense that the policy may simply offer additional detail to support an existing obligation under the governing documents.
That said: If the idea is to enforce a policy against the owners, the safest option may be to consider a Rule or a By-law (rather than a policy) – just to avoid potential arguments about enforcement.
In my view, a key problem in the Tartakovsky-Guilels case was that the Corporation attempted to use a policy to create new obligations that did not otherwise exist under the Corporation’s governing documents. As noted by the Tribunal, this was clearly only possible by making an appropriate amendment to the governing documents (i.e. a Rule).
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