Ontario court sides with strata corporation in parking-lot dispute


14 July 2016

By Kevin Zakreski

Cheung v York Region Condominium Corporation No. 759, 2016 ONSC 4236, involved a claim that an Ontario condominium corporation’s bylaw governing allocation of parking stalls amounted to oppression of a condominium unit owner. The case reviews the general principles of the Condominium Act, 1998’s oppression remedy and applies them to the often-fraught issue of managing parking.

The condominium at issue contained 33 units. Its “declaration was registered on October 19, 1990.” It “is part of the York Corporate Centre, a large area made up of several developments,” located in the town of Richmond Hill. Condominium units were used for nonresidential purposes.

Since 1989 (i.e., prior to registration of the condominium declaration), the applicant has owned three condominium units. She has rented these units out to restaurants. Her current tenant “is a very popular restaurant.”

As the court put it, this “restaurant’s popularity is the crux of the problem on this application. There is simply not enough parking on the grounds to accommodate the patrons.”

The condominium has 162 parking spaces. From 1990 to 2009, they were allocated “on a first-come, first-served basis.” This system apparently resulted in restaurant patrons dominating and monopolizing the parking spots. Other unit owners complained to the respondent condominium corporation about the “very toxic parking situation.”

The respondent addressed these concerns by implementing changes to its bylaws. Ultimately, these changes “authorized the lease of four common element parking spaces to each condominium unit.”

The applicant raised two arguments against the bylaw. First, she argued that the bylaw was invalid for a number of technical reasons concerning the scope of the respondent’s authority under the Condominium Act, 1998 and the condominium’s declaration. The court rejected this aspect of the applicant’s claim.

The applicant’s second point of attack was to characterize the bylaw as “oppressive primarily because it is contrary to her reasonable expectation to have shared parking.”

The court reviewed leading authorities on oppression in corporate law and strata-property law. It adopted the following comments as “the proper approach”:

It must be recognized that the Board is charged with the responsibility of balancing the private and communal interests of the unit owners and their behaviour must be measured against that duty. The court does not look at the interaction between the Board and the Plaintiff in isolation. Justice Juriansz (as he then was) articulated some limits to the oppression remedy’s power and the balance of interest that must be borne in mind in McKinstry v. York Condominium Corp. No. 472, 2003 CanLII 22436 (ON SC), [2003] O.J. No. 5006, 2003 CarswellOnt 4948 (S.C.J.):

It must be remembered that the section protects legitimate expectations and not individual wish lists, and that the court must balance the objectively reasonable expectations of the owner with the condominium board’s ability to exercise judgment and secure the safety, security and welfare of all owners and the condominiums property and assets . . . .

This approach led the court to conclude:

first come, first served appears to mean, in practice (and in Ms. Cheung’s expectation) that the patrons of the restaurant could use every single un-allocated parking spot. That, of course, is not a legitimate or a reasonable expectation. Indeed, it is what led to the parking problems in the first place.

***

I find it difficult to understand how the actions of the Board could be called oppressive when the owner of three units in a 33-unit development wishes to use 100% of the available shared parking for her tenant. I think, frankly, that the oppression goes in the other direction.

***

Ms. Cheung’s real complaint, with respect, is not that the Board treated her differently from the other owners. The Applicant’s real complaint is that the Board did not treat her differently from the other owners. In essence, Ms. Cheung says that the board has acted unfairly and oppressively by taking away her special extra parking privileges. That is no basis upon which to grant a remedy. [emphasis in original]

In the result, the court dismissed the application, with costs to the respondent.


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