CONDOMINIUM AUTHORITY OF ONTARIO
DATE: October 3, 2024
CASE: 2024-00285N
Citation: Tartakovsky-Guilels v. York Region Condominium Corporation No. 829, 2024 ONCAT 152
Order under section 1.44 of the Condominium Act, 1998.
Member: Keegan Ferreira, Vice-Chair
The Applicant,
Yesenya Tartakovsky-Guilels
Represented Jacob Oziel, Agent
The Respondent,
York Region Condominium Corporation No. 829
Represented by Robert Weinberg, Agent and Andrea Lusk, Counsel
Hearing: Written Online Hearing – June 27, 2024 to August 27, 2024
REASONS FOR DECISION
A. INTRODUCTION
[1] Yesenya Tartakovsky-Guilels (the Applicant) is an owner in York Region Condominium Corporation No. 829 (the Respondent). This case relates to a dispute about the Respondent’s “visitor parking policy” and to actions that the Respondent has taken to enforce compliance with the policy.
[2] For the reasons set out below, I find that the Respondent’s visitor parking policy is an improperly implemented rule and that it is invalid and unenforceable. I also find that the corporation’s actions to enforce compliance with the policy were likewise invalid and order the Respondent to reimburse the Applicant $200 for their CAT fees, and for the cost of a ticket issued by the City of Vaughan, if the Applicant requests.
B. PRELIMINARY ISSUE
[3] Shortly after the hearing commenced, the Applicant raised a preliminary issue, alleging that the Respondent’s board of directors may have lost quorum on May 3, 2024.
[4] The Applicant noted that section 6.3 of the Respondent’s By-laws states that: “A director immediately ceases to be a director if a certificate of lien has been registered against a unit owned by the director and the director does not obtain a discharge of the lien within ninety (90) days of the registration of the lien.” The Applicant advised that the owners had received an email from the Respondent on February 3, 2024, listing the units which had had liens placed upon them. That email indicated that liens had been imposed on the units of four of the five then current board members. The Applicant advised that the liens had not been discharged, as indicated by an email confirmation from the Respondent’s representative on June 19, 2024.
[5] I invited submissions from the Respondent through its representative, Mr. Weinberg, licensed condominium manager. He advised that the Respondent’s position is that these directors remained on the board and that the corporation retained quorum. The corporation advised that “the Condominium Act 1998 refers only to liens registered on title for arrears in contributions to common element fees or such other board-levied assessments or court approved chargebacks.” The Respondent further submitted that these liens had been illegally imposed by a contractor, that the unit owners who are facing these liens have all hired the Gardiner Miller Arnold law firm to represent them, and that “construction liens that are placed by an outside third party are not applicable.”
[6] Subsection 29 (2) of the Condominium Act, 1998 (the “Act”) provides that a person immediately ceases to be a director if “(d) a certificate of lien has been registered under subsection 85 (2) against a unit owned by the person and the person does not obtain a discharge of the lien under subsection 85 (7) within 90 days of the registration of the lien.” This provision certainly refers and applies only to liens for unpaid common expenses, which are governed by s. 85 of the Act.
[7] The text of the Respondent’s by-law, though, is different than that of the Act. The text of the by-law does not refer only to liens for unpaid common expenses, as the Act does, but appears to refer generally to all liens. Each corporation has the authority, under s. 56 (1) (a) of the Act, to adopt by-laws “to govern the number, qualification, disqualification, nomination, election, resignation, removal, term of office and remuneration of the directors,” and I asked the Respondent to advise whether the more general language in the by-law had any impact on the corporation’s position on the quorum issue. The Respondent confirmed that it did not.
[8] I advised the parties that I was prepared to proceed with the hearing on the basis that the corporation’s position is that these liens were improperly imposed, and that they are the subject of ongoing litigation.
[9] The Respondent’s representative then advised that the corporation would be having its counsel join the case on its behalf. The Respondent’s counsel, Andrea Lusk, joined the case and I set a deadline for the corporation’s submissions for August 16, 2024, based on her availability. I did not receive submissions from Ms. Lusk, however, as Mr. Weinberg subsequently re-joined the case.
C. ISSUES & ANALYSIS
[10] The issues to be decided in this case are:
1. Are the Respondent’s visitor parking rules and/or policies consistent with the Declaration? Are they valid and enforceable?
2. Is the Respondent’s determination and classification of the Toyota Corolla vehicle as being a resident vehicle, thereby prohibiting this vehicle from accessing visitor parking spaces, valid, reasonable and enforceable?
3. Should there be an award of costs?
Issue 1: Are the Respondent’s visitor parking rules and/or policies consistent with the Declaration? Are they valid and enforceable?
[11] At the outset of the hearing, I reviewed the provisions in the Respondent’s governing documents that relate to parking. Provision III (5) of the Respondent’s Declaration provides that:
Each parking space in the common elements shall be used only by visitors and guests of the unit owners for the purpose of parking thereon one vehicle and each such space shall be individually so designated by means of clearly visible signs and spaces shall not be assigned, leased, or sold to any unit owner or otherwise.
[12] The Respondent’s By-laws also included the following two provisions:
16. No motor vehicle, other than a private passenger automobile, station wagon, shall be parked on any part of the common elements (including any part thereof, of which any owner may have the exclusive use) nor shall any repairs be made to such motor vehicle on the common elements including exclusive use common elements and no motor vehicle shall be driven on any part of the common elements other than on a driveway or parking area designated for parking by the board.
17. No motor vehicle including commercial vehicles, trailer, boat, snowmobile, mechanical toboggan, machinery or equipment of any kind shall be parked on any part of the common elements other than an area designated for parking by the board.
[13] Finally, the Respondent’s Rules also include the following provision:
16. No motor vehicle, other than a personal use motor vehicle or motorcycle shall be parked on any part of the common elements, including exclusive use common area, nor shall any repairs be made to such motor vehicle on the property, and no motor vehicle shall be driven on any part of the common elements other than on a roadway, driveway or parking area designated for parking by the board. Any damage caused to lawn, driveways, patio stones or garage doors by any vehicle shall be repaired at the owner’s expense.
[14] The above-noted provisions from the By-laws and Rules do not deal specifically with visitor parking. I confirmed with the parties that there were no other provisions in the corporation’s governing documents respecting the use of the visitor parking spaces. Both parties advised, however, that the Respondent has a “visitor parking policy” which requires that each owner who wants to have a visitor vehicle park overnight in the visitor parking register that vehicle with Authorized Parking Only Limited (“APO”), a third-party parking enforcement company with which the Respondent has had a contract for more than 25 years.
[15] Under the arrangement that the corporation has entered into with APO, owners are permitted to register a visitor’s vehicle to park overnight in the visitor parking for up to 8 nights per calendar month. If the guest is staying more than three consecutive nights, the owner must contact the corporation’s condominium manager to request an extended permit. Failure to register a visitor’s vehicle may result in the vehicle being ticketed or towed.
[16] The Applicant pointed out that these restrictions are not set out in the Respondent’s governing documents. The Applicant also noted that the governing documents do not define the terms “visitor” or “resident,” and that there is no rule or even policy that specifies the criteria under which a vehicle may be deemed to belong to a resident or a visitor. The Applicant uploaded correspondence with the Respondent in which the Respondent’s representative acknowledged that there are no provisions regarding visitor parking in the corporation’s Rules, but still insisted that owners must comply with these requirements.
[17] Having reviewed the Respondent’s governing documents, I find that there is no provision in them:
• That requires that visitor’s vehicles be registered at all.
• That establishes that visitor vehicles can be registered for a maximum of eight days per calendar month.
• That authorizes or entitles the Respondent to ticket vehicles that do not comply.
[18] Nevertheless, the Respondent’s position is that their visitor parking policy is “part of the original corporation documents” and that it is, and always has been, valid and enforceable.
[19] Under the Act, the board of a condominium corporation may make, amend or repeal rules to promote the safety, security or welfare of the owners and the corporation’s property and assets, or to prevent unreasonable interference with the use and enjoyment of the units, the common elements or the assets of the corporation. The Rules are required to be reasonable, and when the board makes, amends or repeals a rule, they are required to provide owners with a notice in accordance with s. 58 (6), which requires that the board advise the owners that they have a right to requisition a meeting under s. 46 to vote on the proposed rule.
[20] The Respondent’s position in this case is, in essence, that it is entitled to govern by policy what the Act permits it to govern through its Rules, and that its informal policies are fundamentally the same and are equally enforceable as its Rules. The Respondent is incorrect. While corporations may adopt rules governing the use of their visitor parking facilities, the Act does not authorize condominium corporations to impose the types of restrictions outlined in the Respondent’s visitor parking policy through a policy, or to side-step the formal requirements of s. 58.
[21] The Applicant raised parallels between this case and a previous decision of the Tribunal – Boodram v. Peel Standard Condominium Corporation No. 843, 2021 ONCAT 31 (“Boodram”). In that case, a unit owner challenged their corporation’s determination under its “visitor parking policy” that a vehicle belonged to a resident rather than a visitor and was therefore prohibited from parking in the visitor parking. The Tribunal found that the respondent did not have reasonable grounds or authority to determine that the driver was a resident and went on to find that “what the Respondent calls its visitor parking policies are improperly enacted rules of the condominium and, as such, are invalid and unenforceable.” I agree with the Applicant that these cases are very similar: in both the present case and the former, the respondent condominium corporation sought to govern the use of its visitor parking through a “visitor parking policy” rather than through the corporation’s governing documents, which would have been the appropriate mechanism.
[22] For these reasons, I find that the Respondent’s visitor parking policy is an improperly implemented rule and that it is neither valid nor enforceable. As in Boodram, the corporation may resolve this situation by enacting these policies as rules in accordance with s. 58 of the Act. I understand from the submissions of both parties that the Respondent sent a notice of proposed changes to the Rules to the owners on July 2, 2024, which would become effective on August 2, 2024 (unless a meeting were requisitioned). Accordingly, it is possible that the corporation has already done so.
Issue 2: Is the Respondent’s determination and classification of the Toyota Corolla vehicle as being a resident vehicle, thereby prohibiting this vehicle from accessing visitor parking spaces, valid, reasonable and enforceable?
[23] The Applicant argued that the Respondent’s determination and classification of the vehicle was invalid, unreasonable, and unenforceable because the corporation’s governing documents do not authorize the corporation to make such a determination, and even if they were so authorized, because the evidence does not support them making such a determination.
[24] While the Respondent’s initial position was that its classification of the vehicle as a resident vehicle was reasonable, valid and enforceable, the Respondent acknowledged during the hearing that its enforcement actions against the Applicant were inappropriate and unreasonable. Further, in light of my ruling above that the Respondent’s visitor parking policy is an improperly implemented rule, and that the corporation is not permitted to enforce them in the same manner as the corporation’s governing documents, I find that the Respondent’s actions taken to enforce compliance with that policy are likewise invalid.
Issue 3: Should there be an award of costs?
[25] The Applicant seeks reimbursement of their Tribunal fees. Rule 48.1 of the Tribunal’s Rules of Practice states that if a Tribunal Member makes a final Decision, the unsuccessful Party will be required to pay the successful Party’s CAT fees unless the CAT member decides otherwise. The Applicant has been successful in this case. Accordingly, I order the Respondent to reimburse them $200 for their CAT fees.
[26] I understand that the Applicant is currently disputing the ticketing of the Toyota Corolla with the City of Vaughan. Given my finding above about the validity of the Respondent’s enforcement actions, if the Applicant is unsuccessful in contesting the ticket with the City of Vaughan, I order that the Applicant is entitled to present the Respondent with proof of payment of the ticket. If they do, I order the Respondent to reimburse them for the cost of the ticket within 30 days of receipt of proof of payment.
[27] Throughout the hearing, Mr. Weinberg’s messages to the Applicant and to the Tribunal were rude, dismissive, and consistently lacking in civility. Further, based on a message that Mr. Weinberg posted (apparently at the direction of the Respondent’s board of directors), it also appears that he engaged the Respondent’s counsel to join and participate in the case on the Respondent’s behalf without the knowledge and/or approval of the Respondent’s board. While I am not making any order for additional costs against the Respondent here, such conduct could warrant an order for costs in the future.
D. ORDER
[28] The Tribunal orders that:
1. The Respondent shall cease treating its visitor parking policy as enforceable, unless and until they are duly enacted as rules of the condominium in accordance with s. 58 of the Act.
2. Within 30 days of the date of this Order, the Respondent shall pay to the Applicant costs in the amount of $200 pursuant to s. 1.44 (1) 4 of the Act and the rules of the Tribunal.
3. If the Applicant provides the Respondent with proof of payment of the ticket for the Toyota Corolla, the Respondent will reimburse the Applicant for the cost of the ticket within 30 days of receipt of proof of payment pursuant to s. 1.44 (1) 7 of the Act.
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Keegan Ferreira |
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Vice-Chair, Condominium Authority Tribunal |
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Released on: October 3, 2024