Court Considers: Forced Sale of Owner’s Unit or Forced Removal from the Board
In extreme cases; such as when dealing with a very unruly owner or Director; the courts are sometimes asked for an order requiring the owner to sell his or her unit, or, in the case of a Director, requiring the removal of the Director from the Board. The most recent case of this sort in Ontario is the case of YCC 137 v. Hayes.
Here’s my summary of the case, published in the November 2012 edition of Condo Cases Across Canada, which I author, and is published quarterly by the National Chapter of the Canadian Condominium Institute (CCI).
York Condominium Corporation No. 137 v. Hayes (Ontario Superior Court) August 7, 2012
Court orders owner to refrain from assaulting, verbally abusing, swearing at, harassing, threatening or intimidating others.
The respondent owner, also a Board member, had engaged in violent and threatening behaviour. The details were summarized by the Court as follows:
“…the (owner) committed no less than five physical assaults on other condominium unit owners or occupiers and, in several other instances, engaged in verbal abuse, threats and intimidation in relation to a board member, other unit owners or occupiers and service providers to the condominium. The result of this behaviour is that the respondent has repeatedly intimated and instilled fear in a number of her fellow members of this community.”
The Court held as follows:
“I am, therefore, satisfied that the (condominium corporation) has proved the various forms of misconduct, as summarized above, on a balance of probabilities. In all the circumstances, I am satisfied that the (condominium corporation) has proved that the (owner) has been repeatedly in violation of s. 117 of the Act and has also violated the declaration, by-laws and rules of the condominium.”
The Court granted an order restraining the owner from continuing her improper conduct (which was specifically spelled out in the order). The Court declined to grant a “broad, permanent injunction” (requested by the condominium corporation) which would restrain the owner’s conduct in virtually all aspects of her interaction with the condominium and the members of its community. The Court felt that this would be “both overreaching and unworkable,” and instead granted a more specific order prohibiting the owner from repeating her improper conduct.
The Court also declined to order that the owner be removed from the Board. The Court said that such an order might be possible under section 134 of the Condominium Act, 1998 in another case (where the respondent’s election was at issue), but was not appropriate on the facts of this case. The Court also said:
“In any event, even if I were to conclude that the jurisdiction of the court extended to the granting of an order removing a member of the board in the circumstances of this case, I would decline to exercise my discretion on the basis that there is a clear, well-established democratic process for the removal of a director prior to the expiration of his or her term set out in the legislation.”
The Court declined to order that the owner sell her unit and vacate the condominium, stating:
“…the remedy of forced sale is, in many ways, the ultimate and harshest remedy available. As such, it should be reserved for the most egregious cases.
In my view, before the harshest remedy is imposed, the (owner) ought to be given the opportunity to show that she is capable of complying with the rules and regulations governing behaviour in this community. I have made a restraining order imposing limitations on her behaviour. It is to be hoped that this order will have a salutary effect and that the (owner) is able to demonstrate her willingness to change and conduct herself in accordance with the rules which she agreed to when she purchased her unit.”