Condo Litigation ' Section 67 Of The Condominium Property Act

• Published date: 14 May 2020
• Author: Ms Madyson Dietrich and Peter Major QC
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Real Estate
• Law Firm: McLennan Ross LLP

As condo development increases across Canada, especially in urban centers, we can expect an influx of litigation over the interpretation and application of condo legislation and their bylaws. One common trend in Alberta is the reliance on section 67 of Alberta's Condominium Property Act, ("CPA") in the litigation process to enforce reasonable behavior.

Section 67 allows the Court, on application by an "interested party", to impose certain remedies if improper conduct has taken place. Interested parties include condo owners, condo corporations, members of the condo board, or any other persons with a registered interest in a condo unit. Sometimes referred to as the 'oppression section', section 67 seeks to restrain unfair conduct Oppression remedies are also available under the Alberta Business Corporations Act, but the degree of conduct required under section 67 of the CPA may be less onerous than its counterpart, at least for the moment.

Remedies under section 67 include:

· Directing an investigator to be appointed to review the improper conduct and report to the Court;

· Directing improper conduct to cease;

· Giving directions on how matters are to be carried out to avoid recurring issues;

· Awarding compensation in respect of any losses resulting from improper conduct;

· Awarding costs or

· Providing any other directions that the Court considers appropriate.

Improper Conduct Warranting a Section 67 Remedy

Improper conduct can mean a number of things including non-compliance with the CPA, its regulations or the condo's bylaws, as well as conducting business affairs of a condo corporation or exercising condo board powers in an oppressive or unfair manner.

In The Owners Condominium Corporation No. 0211096 v Clayton, 2019 ABQB 877 the Court granted a section 67 remedy to a condo corporation who claimed that an owner was not complying with the bylaws. The owners had a dog and the condo corporation subsequently enacted a bylaw prohibiting dogs, which was to be grandfathered in. Despite the enactment of the new bylaw prohibiting dogs, the owners decided to get another dog.

While the Court was sympathetic to the owner's situation, it held that permitting the owners to keep the dog in these circumstances would be unfair to other residents who follow the bylaws and policies and are entitled and expect the condominium corporation to enforce the bylaws as required under the CPA. Finding otherwise may impair or limit a condo corporation's ability to enforce their rules in the future. The Court made an order under section 67 for an order to relocate the dog.

In Condominium Corporation No. 0613837 v Tien Ngoc Ho, 2019 ABQB 967, a condo corporation applied for declaratory relief under section 67 that they were absolved from all responsibility and liability with respect to the repairs of a unit. The owner's unit was damaged as a result of a leak in another owner's unit. The condo corporation maintained proper insurance but hired a contractor themselves to complete the repairs because the deductible exceeded the cost of repairs. The owners disputed the repairs claiming that their unit was unlawfully entered and the repairs were poor...