Owners-Condominium Plan No. 822 2909 v. 837023 Alberta Ltd. et al., 2010 ABQB 111

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 12, 2010
• Citations: 2010 ABQB 111;(2010), 497 A.R. 342 (QB)

Condo. Plan 822 2909 v. 837023 Alta. Ltd. (2010), 497 A.R. 342 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MR.100

The Owners: Condominium Plan No. 822 2909 (applicant) v. 837023 Alberta Ltd., 346804 Alberta Ltd. and 1139897 Alberta Ltd. (respondents)

(0903 03008; 0903 15874; 2010 ABQB 111)

Indexed As: Owners-Condominium Plan No. 822 2909 v. 837023 Alberta Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

March 12, 2010.

Summary:

The Owners of the Water's Edge condominium applied to evict the owner of certain condominium units which were operated as a restaurant known as New Asian Village on the ground floor of the residential condo tower, complaining of unauthorized renovations and nuisances. In the alternative, the owners asked the court to direct the restaurant owner to, inter alia, obey and adhere to the condominium corporation bylaws. The restaurant owner applied for a declaration that the condominium owners were attempting to impose improper sanctions.

The Alberta Court of Queen's Bench dismissed the eviction application, but ordered the restaurant owner to comply with the bylaws. The court allowed the restaurant owners' application in part. The condominium board had no authority under the bylaws to impose fines on the restaurant owner.

Real Property - Topic 8808.1

Condominiums - General - Eviction of unit holder - The owners of a condominium complex applied to evict the owner of certain units which were operated as a restaurant on the ground floor of the residential condo tower, complaining of unauthorized renovations and nuisances - The condominium bylaws did not provide for eviction - The Alberta Court of Queen's Bench held that the restaurant/unit owners committed some egregious breaches of the condominium bylaws which constituted "improper conduct" within the meaning of s. 67 of the Condominium Act and some breaches which were minor in nature - The court stated that even though this condominium's bylaws did not anticipate the eviction of owners, and even though the legislation did not expressly authorize the eviction of owners, there might well be situations in which the extreme sanction of eviction would be appropriate - However, the court opined that it would not be fair to evict without giving the restaurant owner the chance to remedy the situation - See paragraphs 1 to 80.

Real Property - Topic 8808.1

Condominiums - General - Eviction of unit holder - Section 67 of the Condominium Property Act (CPA), provided the court with power to grant remedies for improper conduct by a condominium developer, corporation, employee of a corporation, a member of a board or an owner - Section 67 did not mention eviction, however s. 67(2)(f) provided the court the power to "give any other directions or make any other order that the Court considers appropriate in the circumstances" - The Alberta Court of Queen's Bench concluded that "... while the CPA does use very broad language - 'any other directions or make any other order' - so that eviction may possibly come within the language of the statute, it is at the least very clear that the CPA itself outlines a framework of incrementation. That incremental approach must be respected by condo associations, condo owners, and the courts" - See paragraphs 48 to 56.

Cases Noticed:

934859 Alberta Ltd. v. Condominium Corp. No. 031 2180 (2007), 434 A.R. 41; 2007 ABQB 640, refd to. [para. 8].

Gentis v. Strata Plan VR 368, Owners, [2003] B.C.T.C. 120; 8 R.P.R.(4th) 130 (S.C.), refd to. [para. 8].

Ram v. Jinnah (1982), 39 A.R. 40; 1982 CarswellAlta 422 (Q.B. Master), refd to. [para. 8].

Spronken et al. v. Schilger et al. (1998), 213 A.R. 30; 1998 CarswellAlta 43 (Q.B.), refd to. [para. 8].

Owners-Condominium Plan No. 9524710 v. Webb et al. (1999), 236 A.R. 364 (Q.B.), refd to. [para. 8].

Condominium Corporation No. 8110264 v. Farkas, [2009] A.R. Uned. 575; 2009 ABQB 488, refd to. [para. 8].

Owners-Condominium Plan No. 932 2887 v. Redweik, [1994] A.J. No. 1020 (Q.B. Master), refd to. [para. 8].

Owners-Condominium Plan No. 022 1347 v. N.Y. (2003), 351 A.R. 76; 2003 ABQB 790, refd to. [para. 8].

Owners-Condominium Plan No. 822 2909 v. Li, [2007] A.R. Uned. 649; 2007 ABQB 693 (Master), refd to. [para. 8].

Saskatchewan River Bungalows Ltd. and Fikowski v. Maritime Life Assurance Co. (1992), 127 A.R. 43; 20 W.A.C. 43; 1992 CarswellAlta 382 (C.A.), affd. [1994] 2 S.C.R. 490; 168 N.R. 381; 155 A.R. 321; 73 W.A.C. 321; 1994 CarswellAlta 769, refd to. [para. 9].

Mah v. Truscan Realty Ltd., 1996 CarswellAlta 570 (Q.B.), refd to. [para. 9].

Alwell Mechanical v. Royal Bank of Canada (1985), 41 Alta. L.R.(2d) 8 (C.A.), refd to. [para. 9].

Dovale v. Metropolitan Toronto Housing Authority, [2001] O.T.C. 87; 2001 CarswellOnt 400 (Sup. Ct.), refd to. [para. 9].

361488 Alberta Ltd. v. Westwinds Club, 1989 CarswellAlta 127 (C.A.), refd to. [para. 9].

Shivji v. Owners-Condominium Plan No. 012 2336 et al. (2007), 427 A.R. 361; 2007 ABQB 572, refd to. [para. 9].

York Condominium Corp. No. 136 v. Roth, [2006] O.J. No. 3417 (Sup. Ct.), refd to. [para. 10].

York Condominium No. 382 v. Dvorchik, [1997] O.A.C. Uned. 93 (C.A.), refd to. [para. 10].

Sterling Village Condominium Inc. v. Breitenbach, 1971 Fla. App. LEXIS 6191, refd to. [para. 10].

Taylor et al. v. Registrar of South Alberta Land Registration District et al. (2005), 367 A.R. 73; 346 W.A.C. 73; 2005 ABCA 200, refd to. [para. 11].

Northwestern Metal & Salvage Ltd. v. Alltar Roofing Ltd., [1994] A.J. No. 432 (C.A.), refd to. [para. 12].

Statutes Noticed:

Condominium Property Act, R.S.A. 2000, c. C-22, sect. 67 [para. 48].

Authors and Works Noticed:

Grassnick, D.E., Note: Minding the Neighbor's Business: Just how far can condominium owners' associations go in deciding who can move into the building?, 2002 U. Ill. L. Rev. 185, generally [para. 10].

Kim, M.C., Symposium, Involuntary Sale: Banishing an owner from the condominium community (1998), 31 J. Marshall L. Rev. 429, generally [para. 10].

Counsel:

Sandeep K. Dhir and Christopher W. Spasoff (Field LLP), for the Condominium Board;

Jerritt R. Pawlyk (Bishop & McKenzie LLP), for the owner of the New Asian Village.

This matter was heard on February 9 and 10, 2010, before Veit, J., of the Alberta Court of Queen's Bench, who delivered the following memorandum of decision on March 12, 2010.