Chapter 4: Governance

• Pages: 69-118
• Author: Robert Mullin

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CHA PTER 4

GOV ER NA NCE

1 INTRODUCTION

[1] To operate a condominium successfully asks two questions. Fir st,

“what is a condominium?” This may be more than academ ic. Ontario’s

Condominium Act, 1998 (the “Act”), expansively oers, “a corporation

created or continued under this Act.”1 Black’s Law Dictionary, 11th edi-

tion, generously adds, “[c]ondominium: ownership in common with

ot he r s.” 2 The Dictionary of Canadia n Law, 5th edition, oers a compara-

tively lavish definition:

1. A system of property owner ship of multi-unit housing or commer-

cial projects in whic h each unit owner is a tena nt-in-common of the

common elements and each un it is owne d separately in fee simple.3

Read together, a condominium is a legal vehicle, allowing lands with-

in it to be severed into parcels of real e state that are individual ly and

communally owned. However, this oers the second question, “how is

a condominium to be governed?” The tempting response, “According to

the Condominium Act, 1998,” ignores the fact that condominiums may

1 Condominium Act, 1998, SO 1998, c 19, s 1(1) [Condo Ac t].

2 Bryan A Gar ner, Black’s Law Dictionary, 11th ed (St Paul: Thomson Reuters,

2019) at “condomin ium” [Black’s].

3 Nancy McComack, The Dict ionary of Canadia n Law, 5th ed (Toronto: Thomson

Reuters Canad a, 2020) at “condomin ium.”

CONDOMINIUM LAW IN ONTAR IO

70

follow legislation with precision and stil l find themselves immersed in

turmoi l.

[2] For decades, the question of governance h as been wrestled with

by the courts. In 2020, Ontario’s Superior Court of Justice adopted the

United States’ leading case on condominium governance.4 The source,

a 1975 ruling from Florida’s Court of Appeals styled Hidden Harbour

Estates Inc v Norman,5 is perhaps t he most quoted condominium case

in the United States.6 After five decades, it still gives an accu rate picture

on condominium governance. Hidden Harbour held:

[I]nherent in t he condominium concept is the princ iple that to pro-

mote the health, happine ss, and peace of mind of the majority of the

unit owners since t hey are living in such clo se proximity and using

facilities i n common, each unit owner must give up a cer tain degree

of freedom of choice which he might other wise enjoy in separate,

privately owned proper ty. Condominium unit owners compri se a little

democratic sub-soc iety of necessity more restrictive as it pertain s to use

of condominium property t han may be exi stent outside the condo-

minium organi zation. The Declaration of Condomin ium involved

herein is replete with e xamples of the curt ailment of individual

rights usua lly associated w ith the private owner ship of property.7

[Emphasis added.]

[3] Ontario’s court expanded on this concept, stating that unit

owners, “must enter a social contract which relinquishes their abso-

lute interests to do as they please w ith thei r real property, and inste ad

balance their interests with those of others.”8 Another cou rt cited,

“[c]ondos are small communities, wit h all the benefits and the poten-

tial problems that go with l iving in close collaboration with former

strangers.”9 Academically, it has been remarked that becoming a un it

owner means entering a democratic community, filled with mutual

rights and responsibility, yet surrendering some full-fledged property

4 Metropolitan Toronto CC No 933 v Lynn, 2020 ONSC 196 [Lyn n].

5 Hidden Harbour Est ates Inc v Norman, 309 So 2d 180 [Hidden Harbour].

6 As of June 2021, over 500 citation refere nces, with 144 coming from seconda ry

sources.

7 Hidden Harbour, above note 5 at 181–82, as q uoted in Lynn, above note 4 at p ara

28. See also Way ne S Hyatt, Condominium and Homeowner A ssociation Prac-

tice: Community Associ ation Law, 3rd ed (Philadelphia: Americ an Law Insti-

tute-America n Bar Association, 200 0) at 53.

8 Lynn , above note 4 at para 28. Se e also Rahman v Peel Standard Condominium

Corp No 779, 2023 ONCAT 46 at para 35.

9 Shaw Cablesystems L td v Concord Pacific Group, 2007 BCSC 1711.

Governanc e 71

expectations in return for the right to participate in governa nce.10

Ontario’s Court of Appeal has held:

A condominium is a form of propert y ownership which combine s

individual proper ty interests, exc lusively owned by individu al “unit

owners,” and common elements that are joi ntly owned by all unit

owners as tena nts in common.11

[4] Ontario’s Condominium Authority Tribunal (“CAT”) has furthered

that, “[l]iving in a condominium community requires respect and con-

sideration for one’s neighbours”12 and that this communal relationship

consists of the balancing of individual rights w ith mutual obligations.13

In sum, condominiums approach a quasi-level of self-government,14 in

which individual right s are willingly subsumed for the larger good.15

Condominium legislation attempts to achieve the di sparate goals of

private property and communal r ights through a tightly-regulated gov-

ernment structure.

[5] To provide this, condominium governance mirrors a repre-

sentative democracy,16 defi ned as, “[a] democracy in which the people

elect representatives to make law and policy decisions for them.”17 Unit

owners, akin to voters, elect a board of directors.18 This board, akin to

a cabinet, exercise signi ficant powers to manage the day-to-day aairs

of the condominium.19 In keeping with a representative democracy, the

board seldom seeks input or permi ssion from unit owners between an-

nual elections. However, unlike a representative model, milestone deci-

10 Jason Le slie, “The Philosopher and the Developer: Plura list Moral Theory and

the Law of Condomi nium” (2017) 54 Osgoode Hall L J 2 at 19.

11 3716724 Canad a Inc v Carleton Condominium Corp No 375, 2016 ONCA 650 at

para 8 [37167 24], citing 511666 Ontario Ltd v Confederation Life Insurance Co,

1985 CarswellOnt 717 (ONHCJ). See also Wentworth Condominium Cor p No 198

v McMahon, 2009 ONCA 870 at para 1 [McMahon].

12 York Region Standard Condominium Corp No 1201 v Us, 2022 ONCAT 133 at para

12.

13 Kore v Niagara South Condominium Corp No 12, 2022 ONCAT 19 at para 35.

14 Oxford Cond ominium Corporation No 16 v Collins, 2000 CarswellOnt 4 009 at

para 8 (ONSC). See also Branco v Toronto Standard Condominium Corp No 1930,

2025 ONCAT 23 at para 39.

15 Ottawa Carleton Standard Condominiu m Corp No 671 v Frie nd, 2019 ONSC 3899

at para 23 [Frie nd].

16 Michael Gib son & Robert Noce, Condominium Law in Alber ta (Toronto: Thom-

son Reuters, 2022) at 86.

17 Bl ack’s, above note 2 at “representative democ racy.”

18 Condo Act , above note 1, s 28.

19 For example, see Con do Act, above note 1, ss 17, 35, and 119.