Anderson v. Owners-Condominium Plan No. 99SA34021, (2010) 352 Sask.R. 106 (QB)

• Judge: Goldenberg, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 05, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 352 Sask.R. 106 (QB);2010 SKQB 53

Anderson v. Condo. Plan 99SA34021 (2010), 352 Sask.R. 106 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. MR.006

In The Matter Of Judicial Review pursuant to part fifty-two of the Queen's Bench Rules

Andres Anderson and Shirley Anderson (applicants) v. Owners: Condominium Plan No. 99SA34021 (respondent)

(2009 Q.B.G. No. 1373; 2010 SKQB 53)

Indexed As: Anderson v. Owners-Condominium Plan No. 99SA34021

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Goldenberg, J.

February 5, 2010.

Summary:

The applicants applied for (1) an order under Queen's Bench Rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent condominium association to remove or cause to be removed the satellite dish on the roof of a unit; or in the alternative, (2) an order under rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent to move or cause to be moved the satellite dish from the front portion of the unit to the rear, above the unit's garage. The unit was next to the applicants' unit.

The Saskatchewan Court of Queen's Bench dismissed the motion and awarded $500 costs to the respondent.

Administrative Law - Topic 571

The hearing and decision - Decisions of the tribunal - Academic or moot matters - The applicants applied for (1) an order under Queen's Bench Rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent condominium association to remove or cause to be removed the satellite dish on the roof of a unit; or in the alternative, (2) an order under rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent to move or cause to be moved the satellite dish from the front portion of the unit to the rear, above the unit's garage - The unit was next to the applicants' unit - The Saskatchewan Court of Queen's Bench held, inter alia, that the applicants did not have a sufficient interest to bring the application (rule 665) - When a court determined whether it would grant a discretionary declaratory action, the two main considerations were: whether the remedy would be useful and whether it would settle the question at issue between the parties - A court would not grant declaratory relief if a dispute was over or had become academic - Given that the applicants had moved and listed their unit for sale, the dispute was academic - See paragraphs 47 to 50.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - The applicants applied for (1) an order under Queen's Bench Rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent condominium association to remove or cause to be removed the satellite dish on the roof of a unit; or in the alternative, (2) an order under rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent to move or cause to be moved the satellite dish from the front portion of the unit to the rear, above the unit's garage - The unit was next to the applicants' unit - The Saskatchewan Court of Queen's Bench held, inter alia, that if judicial review was available, it was barred by the adequate alternate remedy principle - Arbitration, as provided for under s. 100 of the Condominium Property Act, was a more convenient and cost effective remedy - See paragraphs 34 to 40.

Administrative Law - Topic 3503

Judicial review - Mandamus - General - When available - The applicants applied for (1) an order under Queen's Bench Rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent condominium association to remove or cause to be removed the satellite dish on the roof of a unit; or in the alternative, (2) an order under rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent to move or cause to be moved the satellite dish from the front portion of the unit to the rear, above the unit's garage - The unit was next to the applicants' unit - The Saskatchewan Court of Queen's Bench held that the applicants had no legal right to have a satellite dish either removed or moved to a different place on a unit - Nor did the association have a legal right to the applicants to remove the satellite dish or have it moved to another part of the unit - This was especially so as the satellite dish was not breaking any of the association's bylaws, or affecting any property other than the unit whose side of the roof it was on - The satellite dish decision was a discretionary decision by the association which was made in compliance with its bylaws - With no legal duty, there was no need to look at whether the duty was demanded and refused - Where a statutory duty existed to enforce the law, only complete inaction in this respect could give rise to a judicial remedy - The court could not determine the manner of enforcement - See paragraphs 41 to 46.

Administrative Law - Topic 3553

Judicial review - Mandamus - Conditions precedent - Existence of duty - [See Administrative Law - Topic 3503 ].

Administrative Law - Topic 3553

Judicial review - Mandamus - Conditions precedent - Existence of duty - The applicants applied for (1) an order under Queen's Bench Rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent condominium association to remove or cause to be removed the satellite dish on the roof of a unit; or in the alternative, (2) an order under rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent to move or cause to be moved the satellite dish from the front portion of the unit to the rear, above the unit's garage - The unit was next to the applicants' unit - The Saskatchewan Court of Queen's Bench stated that it was common ground that for judicial review to lie there had to be a statutory or public duty owed - The court held that a condominium association did not meet the definition of a body which owed a public duty - The court found that there were statutory duties owed by a condominium association to unit owners under the Condominium Property Act - However there was no statutory duty corresponding to the issue the applicants sought to have judicially reviewed - Therefore, the application for judicial review was dismissed - See paragraphs 9 to 25.

Administrative Law - Topic 3557

Judicial review - Mandamus - Conditions precedent - Existence of right - [See Administrative Law - Topic 3503 ].

Administrative Law - Topic 3586

Judicial review - Mandamus - Bars - Existence of alternate remedy - [See Administrative Law - Topic 3302 ].

Administrative Law - Topic 3589

Judicial review - Mandamus - Bars - Discretionary power - [See Administrative Law - Topic 3503 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Administrative Law - Topic 571 ].

Injunctions - Topic 1563

Permanent injunctions - Practice - Application - How made - The applicants applied for an order under Queen's Bench Rule 664(2)(b), or an order in the nature of mandamus under rule 664(1), directing the respondent condominium association to remove or cause to be removed the satellite dish on the roof of a unit - The unit was next to the applicants' unit - The Saskatchewan Court of Queen's Bench refused to grant an injunction under rule 664(2)(b) - That relief was being sought independent of relief in the nature of mandamus under rule 664(1) - An application for an injunction could not exist in a vacuum - There had to be a base from which to proceed - The base could be established by notice of motion under rule 664(1) seeking relief as set out in rule 664(1), with an injunction as collateral relief thereto - Once the base had been established, an application for an injunction could be brought - See paragraphs 2 to 5.

Real Property - Topic 9051

Condominiums - Judicial review - General (incl. when available) - [See Administrative Law - Topic 3302 , Administrative Law - Topic 3503 and second Administrative Law - Topic 3553 ].

Real Property - Topic 9052

Condominiums - Judicial review - Standard of review - The Saskatchewan Court of Queen's Bench held that the standard of review of a condominium association's decision was what was reasonable for the condominium association in carrying out its statutory duty - A court ought not lightly to interfere in the decisions of a democratically elected board of directors acting within its jurisdiction - The court should defer to duly elected condominium boards, and only if it was satisfied of improper conduct should it direct and/or grant any remedies - See paragraphs 32 and 33.

Real Property - Topic 9063

Condominiums - Arbitration - Enforcement - [See Administrative Law - Topic 3302 ].

Cases Noticed:

Pradzynski v. Prince Albert (City), [1985] S.J. No. 573 (Q.B.), appld. [para. 4].

Koshurba v. North Kildonan (Rural Municipality) (1965), 52 D.L.R.(2d) 84 (Man. C.A.), refd to. [para. 11].

Owners-Condominium Plan No. 0020701 v. Investplan Properties Inc. et al., [2006] A.R. Uned. 192; 57 Alta. L.R.(4th) 310; 2006 ABQB 224, refd to. [para. 13].

Buskell v. Linden Real Estate Services Inc. et al., [2004] 4 W.W.R. 366; 178 Man.R.(2d) 132; 2003 MBQB 211, refd to. [para. 32].

Baliwalla v. York Condominium Corp. No. 438 (2007), 224 O.A.C. 192 (Div. Ct.), refd to. [para. 32].

Devlin v. Owners-Condominium Plan No. 9612647 (2002), 318 A.R. 386; 2002 ABQB 358, refd to. [para. 32].

Desjardins v. Winnipeg Condominium Corp. No. 75, [1991] 2 W.W.R. 193; 71 Man.R.(2d) 227 (Q.B.), refd to. [para. 33].

934859 Alberta Ltd. v. Condominium Corp. No. 031 2180 (2007), 434 A.R. 41; 2007 ABQB 640, refd to. [para. 33].

Commandant v. Wahta Mohawks (2007), 315 F.T.R. 82; 2007 FC 692, refd to. [para. 34].

Kuzminski v. Regina (City) (2000), 196 Sask.R. 229; 2000 SKQB 317, refd to. [para. 41].

Northern Lights Fitness Products Inc. v. Canada (Minister of National Health and Welfare) et al. (1994), 75 F.T.R. 111 (T.D.), refd to. [para. 45].

Shiell v. Saskatchewan (Minister of the Environment) (1987), 64 Sask.R. 34 (Q.B.), refd to. [para. 47].

Shiell v. Amok Ltd. and Saskatchewan Mining Development Corp. et al. (1987), 58 Sask.R. 141 (Q.B.), refd to. [para. 47].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 49].

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 664(1), rule 664(2)(b) [para. 2].

Counsel:

Davin R. Burlingham, for the applicants;

Ashley M. Smith, for the respondent.

This application was heard by Goldenberg, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on February 5, 2010.