Recent Court Decision Again Confirms Repair and Maintenance Mandate of the Board

A recent decision of the Ontario Superior Court in the case of MacDonald v. Wentworth Condominium No. 96  again confirms the repair and maintenance mandate of condominium Boards of Directors.

In the MacDonald case, the owner objected to a special assessment (for elevator and balcony replacements) which had resulted in a lien against the owner’s unit. The owner felt that the Board should have considered other repair or maintenance options and other funding options; and the owner also felt that the decision should have been put to a vote of the owners.

Here’s my summary of the decision, taken from Condo Cases Across Canada, which I author for quarterly publication by CCI National:

Summary of the decision in MacDonald v. Wentworth Condominium No. 96

The owner alleged that the condominium corporation should have called for a vote respecting the decision to replace balconies and the elevator (and to levy a special assessment for these purposes). The owner alleged that the corporation’s failure to call for a vote amounted to oppression.

The Court dismissed the owner’s application. The Court said:

In finding the balcony and elevator work to be remedial and covered under s. 97 (1), the work is not subject to a voter approval process under s. 97(4). Consequently, the applicant’s expectation there be a vote of unit owners prior to the 2017 Special Assessment is not reasonable.

In summary, I am persuaded that the law sustains the Board’s actions in this case. In the appropriate circumstances, Condominium Boards can levy Special Assessments and have done so as a necessary component of management: McDonough v. York Condominium Corp. No. 41, [1990] O.J. No. 2791, at para. 62. Such assessments for the purpose of remedial work do not require a vote, either by the declaration or under the Act.

The Court added, however, that the reasoning behind the Board’s decision-making was not “fully transparent” and said that the lack of transparency may have contributed to the particular Court dispute.

So, in summary, this case again confirms a Board’s mandate to make decisions about repair and maintenance (and related required funding)….as long as the Board’s decision-making process is reasonable in the sense that the Board gives the matter fair and reasoned consideration. But the case also notes the benefits that can come from transparency on the part of a Board.