The Ontario Superior Court has just ruled that unit owners allowing third party contractors access to a condominium property to perform non-urgent work in their unit constitutes a matter of urgency. Last week, in York Condominium Corporation No. 419 v Black, 2020 ONSC 2066, a condominium corporation in Ontario sought an emergency court injunction against two unit owners when it discovered they were allowing painters into their unit to complete renovations while the COVID-19 restrictions were in force. The condominium property in question is primarily occupied by senior citizens, and this appeared to be a significant factor for the Court in arriving at its decision.
In considering the issue, the Court unsurprisingly found that this was “a matter of great urgency”, and ordered an immediate case conference that same afternoon, which was conducted via telephone conference call. Ultimately, the owners conceded the concerns of the condominium corporation, and agreed that the public health directive of social distancing was incompatible with allowing visitors to the unit at this time. While the parties ended up reaching an agreement during the case conference, the Court made an interim Order directing the unit owners to not allow any third parties to enter the unit pending a further order of the Court.
Courts across the country are currently only considering civil matters that are either urgent or emergent. In light of this decision, it is clear that condominium corporations still have court remedies to enforce compliance by unit owners if these circumstances are met. Provided the corporation (or unit owner) can demonstrate that the basis for the relief being requested is protecting the health and safety of residents from the threat of COVID-19, it seems that the courts will hear these types of applications on an emergency basis. Court applications like this can be still filed by email, with a summary of why the matter is urgent contained in the body of the email itself, or in an attached cover letter.
While this decision underscores the ability of condominium corporations to enforce public health restrictions on their properties, undoubtedly, the courts will still be concerned with ensuring fairness and respecting the rights of unit owners vis-a-vis other owners, occupants and the corporation as a whole. This has often been described as one of the primary goals of condominium legislation in Alberta. With that in mind, if a condominium corporation has such concerns, it should afford unit owners with an initial opportunity to change their behaviour, by providing a written notice and/or demand letter, before proceeding with an application to the Court. Unit owners, for their part, must understand that this decision means they cannot simply ignore such notices/demands.
We encourage all condominiums and unit owners to defer or postpone unnecessary maintenance, repairs and upgrades during this time, but particularly if they cannot be completed without violating social distancing requirements or if there are elderly or at-risk occupants who may be impacted.
If your condominium corporation is experiencing similar issues or has concerns about the activities of its residents during the COVID-19 crisis, please contact Erin Berney at Field Law to learn about your options and potential remedies.