Chapter 3: Governing Documents

• Pages: 44-68
• Author: Robert Mullin

44

CHA PTER 3

GOVERNING

DOCUMENTS

1 INTRODUCTION

[1] Condominiums, as creatures of statute,1 must strictly follow the

Condominium Act, 1998 (the “Act”).2 Akin to an iceberg, this legi sla-

tive and regulatory regi me only represents the v isible peak cresting the

water. Below the surface are a series of governing, hierarchical docu-

ments completing a condominium’s legal structure. These include the

declaration, the descr iption, by-laws, and rules.3

[2] In Ontario, understanding the Act is integral to h ave an intro-

ductory understanding of condominium law. However, navigating a

condominium through legal waters demands a t horough understand-

ing of the condominium’s governing documents. As the court s have

repeatedly upheld, “[t]he provisions of the Act and the declaration, by-

1 Peel Standard Condominium Corp No 668 v Daysp ring Phase 1 Ltd, 2006 Cars wel-

lOnt 767 (ONSC). See also Eber ts v Carleton Condominium Corp No 396, 2000

CarswellO nt 3750 (ONCA); Cottage Advisors of Canada v Prince Edward Vacant

Land Condominium Cor p No 10, 2021 ONSC 1203 at para 14 [Cottage Advis-

ors]; Peter M Dunbar, The Condominium Concept: A Practi cal Guide for Ocers,

Owners, Realto rs, Attorneys, and Directors of Florida Con dominiums, 17th Edit ion

(Lanham: P ineapple Press, 2024) at 20.

2 Condominium Act, 199 8, SO 1998, c 19, ss 119 and 176 [Condo Act].

3 Ibid, ss 7(5), 56(6), and 58(2). See also Chown v Fronte nac Condominium Corp No

19, 2024 ONCAT 133 at para 10.

Governing Documents 45

laws and rules are ‘ vital to the integr ity of the title acquired by’ unit

owners.”4 Therefore, nothing may be overlooked.

[3] With the explosive growt h of condominiums in Ontario ha s

also come great legal diversity.5 Two condominiums sharing the same

street, developer, vintage and layout may be ordered very dierently:

one may invite pets, the other prohibiting them. With such legal com-

plexity, nothing may be ignored in the fine print. In short, the courts

have held that the prima ry purpose behind a condominium’s governing

documents is to define the unique relationship between the condomin-

ium and unit owners.6 Therefore, properly navigating any condomin-

ium legal issue requires careful observance of the visible legislative

peak while accurately sounding the depths of a condominium’s gov-

erning documents.

2 THE DECLARATION

[4] Sitting atop the governing document s is the declaration. The dec-

laration has been refer red to as the condominium’s “constitution.”7 It

is a foundational document aorded a higher legal standing than an

agreement.8 In keeping with such, while a declaration may be con-

sidered a version of a contract, the courts have held that a declaration

is a statutory or special form of agreement, with a structure and foun-

dation adhering to legi slation.9 In turn, t he courts have furthered that

4 York Condominium Corp No 137 v Hayes, 2012 ONSC 4590 at para 23; Carleton

Condominium Corp No 279 v Rochon, 1987 Carswel lOnt 665 at para 27 (ONCA).

5 Condominium Author ity of Ontario, CAO Best Practices Guide (Condomin ium

Authority of Onta rio, 2022) at 5 [CAO Best Practice s].

6 Peel Condominium Corp No 16 v Vaughan, 1996 CarswellOnt 1128 at par a 39

(ON CJ(G D)).

7 Perrault v Toronto Standard Condominium Corp No 2298, 2020 ONSC 1011 at para

4 [Perrau lt]. See also Audrey Loe b, The Condominium Act: A User’s Manual, 5th

ed (Toronto: Thomson Reuters, 2018) at 105; YCC No 50 v Demong, 2024 ONSC

6291 at 37.

8 Lexington on th e Green v Toronto Standard Condominium Cor p No 1930, 2010

ONCA 751 at para 47 [Lexington]; Perra ult, above note 7; Kumar v Toronto

Standard Condominium Cor p No 2492, 2020 ONSC 956 at para 4 [Kumar]; Pe el

Condominium Corp No 449 v Hogg, 1997 Cars wellOnt 630 (ONCJ(GD)).

9 Metropolitan Toronto Condominium Corp No 590 v The Registe red Owners and

Mortgagees of Metropolitan Toronto Condominium Corp No 590, 2020 ONCA 471

at para 15 [Registered Owners].