Policies vs Rules
In the recent case of Boodram v. Peel Standard Condominium Corporation No. 843, the condominium corporation asserted that a resident of one of the units was improperly parking in visitors parking. The corporation noted that this contravened a provision in the condominium’s Declaration, which stated that visitors parking could only be used by “invitees and guests of the Owners, the tenants, sub-tenants, and permitted occupants of the Residential Units in the Condominium, and by the servicemen, contractors, sub-contractors, mechanics, repairmen or other agents”. As a result, the condominium’s parking control agent had issued numerous parking tickets to the particular driver.
The owner of the unit claimed that the driver was a visitor – not a resident – and applied to CAT for a confirming order.
In an attempt to prove that the driver was a resident, the condominium corporation relied upon the driver’s frequent visits to the property, and upon certain policies of the corporation, including policies requiring that owners obtain visitor parking permits (for their visitors to use visitors parking) and limiting the number of visitor parking permits to eight per month. HOWEVER: These policies had not been passed as Rules pursuant to Section 58 of the Condominium Act, 1998 (the Act).
The Tribunal made two key findings. The Tribunal held that the Board could not rely upon the particular policies, unless and until they were properly passed as Rules. In addition, the Tribunal held that there was insufficient evidence to justify the Board’s conclusion that the driver was a resident.
Therefore, the Tribunal held that “until (the condominium corporation) can make such a decision on reasonable grounds and based on defensible authority, the vehicle in question should not be prohibited from making use of the visitor parking at the condominium, and I so order”.
The Tribunal went on to say that there is a place for condominium policies, namely to “provide a consistent and reliable framework to guide (the corporation’s) conduct and conclusions in a decision-making process”. But the Tribunal pointed out that there is no provision in the Act for enforcement of policies. Therefore, a policy presumably has to be “grounded” in some other enforceable law.
SO: When does a Policy make sense? When is a Rule the better option?
The Boodram case doesn’t give us clear answers to these questions. But the indication seems to be as follows:
I. The purpose of a policy is to set out procedures or principles that will be followed or applied by the corporation in fulfillment of the corporation’s already existing obligations. A policy can’t impose new obligations or new restrictions upon owners or occupants.
II. In my view, a policy (which of course is only passed by Board resolution) probably makes sense if the subject-matter already falls within the Board’s decision-making mandate or responsibility (meaning that owners really should NOT be deciding the particular issue).
III. SO FOR INSTANCE:
- A policy might spell out procedures and principles to be followed by the condominium corporation in relation to fulfilment of the corporation’s obligations under the Human Rights Code.
- A policy might spell out procedures and principles to be followed by the condominium corporation in relation to fulfilment of the corporation’s existing obligations in relation to Workplace Violence and Harassment (under the Occupational Health and Safety Act).
- A policy might spell out procedures and principles to be followed by the condominium corporation in relation to owners’ requests to make modifications to the common elements (as part of enforcement of the corporation’s existing obligations under Section 98 of the Act and/or the Declaration).
- A policy might spell out procedures and principles to be followed by the condominium corporation in order to fulfill and enforce the corporation’s already existing obligation to keep the common elements reasonably safe during the pandemic (and to promote related compliance with Public Health regulations).
- A policy might spell out procedures and principles to be followed by the condominium corporation following receipt of complaints about noise or other alleged violations (as part of fulfilling the corporation’s existing obligations to enforce the Act, Declaration, By-laws and Rules).
- A policy might spell out procedures and principles to be followed by the condominium corporation in order to fulfill and enforce the corporation’s existing obligation to collect common expense arrears.
- A policy might regulate the use of the guest suites or party room or other amenities (which are already under the corporation’s duty to control and manage).
IV. But a new Rule (or an amendment to the Declaration or By-laws) is likely appropriate if the idea is to impose new obligations or new restrictions upon owners or occupants. In such cases, owners likely need to be involved in the “law-making process”. SO FOR INSTANCE, a new Rule would probably make sense in order to:
- Establish a new definition of “family” (different from the definition in the Courts).
- Limit the size of permitted dogs.
- Limit the number of permitted pets.
- Place restrictions on certain unit upgrades (like hard flooring).
- Place added restrictions on noise levels (beyond those imposed by the municipality).
- Better define the term “resident” or “visitor” (for purposes of parking).
- Place other restrictions upon the use of parking (beyond those imposed by the municipality).
V. Perhaps the following example may help bring this into further focus. In my view, a Rule (or Declaration amendment) is required in order to prohibit smoking in the units. But I think a Policy could nicely set out the steps to be taken by the condominium corporation in the event of a complaint about migration of second-hand smoke.
SO IN SUMMARY: A policy can say how the condominium corporation will deal with certain matters that already fall within the Board’s mandate; and, in doing so, I think can even tell owners what the corporation will treat as a violation of an already-existing restriction. I think that’s perhaps what the condominium corporation was trying to do in the Boodram case. But I think that the Tribunal essentially said that the policies, in that case, purported to create new obligations (or new definitions) that went beyond the existing provisions of the Declaration.
In the end, I think there may sometimes be a fine line between what can be included in a Policy and what requires a Rule. But the message from the Boodram case appears to be as follows:
A policy can spell out procedures or principles applying to existing obligations… but generally can’t create new obligations for owners and occupants.
And: If in doubt, it may be best to pass a Rule.
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