Digest: Goertz v The Owners Condominium Plan No. 98SA12401, 2018 SKCA 41

Date:May 18, 2018
 
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Reported as: 2018 SKCA 41

Docket Number: CACV 3089 , CA17152

Court: Court of Appeal

Date: 2018-05-18

Judges:

  • Ottenbreit
  • Whitmore
  • Schwann

Subjects:

  • Statutes � Interpretation � Condominium Property Act, 1993, Section 41, Section 77

Digest: The appellant appealed from the decision of a Queen�s Bench chambers judge that determined that the respondent, a condominium corporation, properly suspended the appellant�s right to vote at its annual general meeting (AGM) of owners for failure to pay monies owed by him to the respondent and dismissed his application respecting oppressive conduct and other relief sought against the Board of Directors of the respondent (see: 2017 SKQB 135). The appellant owned 10 units in the condominium development and rented all but the one in which he resided. In February 2015, the board passed a resolution requiring each owner to pay a deposit of one month�s rent on each unit rented by the owner pursuant to s. 77(1) of The Condominium Property Act, 1993 (CPA). The board purported to pass the resolution in accordance with a provision of the respondent�s bylaws. The deposit was assessed because the respondent had been required to pay a $4,000 insurance deductible because of damage caused to common property after the pipes in a tenant�s unit had frozen and cracked. The appellant was notified in March 2015 of the obligation but refused to pay the deposit owed for units. After the respondent made repeated requests to collect the arrears, the board informed the appellant that he would not be allowed to vote at the March 2016 AGM pursuant to s. 41(8) of the CPA. At the AGM, the owners passed various amendments to the bylaw including a definition of the term �contributions�. The impasse continued and in October 2016, the respondent commenced a small claims action for the deposits. The board notified the appellant that he would not be permitted to vote at the next AGM unless he paid the deposits. Before the hearing of the small claims action, the appellant commenced his unsuccessful proceeding in the Court of Queen�s Bench. He had requested, among other things, a declaration that the definition of��contributions� in the bylaw was�ultra vires�the statutory definition in the CPA, a declaration that he was not in arrears of contributions and that he would be allowed to attend and vote at AGMs. He also requested an order under�s. 99.2 of the�CPA prohibiting the board from engaging in oppressive conduct to him. Among the appellant�s grounds of appeal were whether the chambers judge erred: 1) by determining that the respondent properly assessed deposits; 2) in his interpretation of the term �contributions� in the CPA and the bylaw; 3) in holding that the respondent could deny the appellant the right to vote at the AGMs; and 4) in failing to find the conduct of the respondent and board was oppressive.
HELD: The appeal was dismissed. The court found with respect to each ground that the chambers judge had not erred: 1) in holding that the respondent had the authority to determine whether a deposit was necessary and to assess one under s. 77(1) of the CPA. The only condition precedent to assessment of a deposit under the legislation was the passage of a bylaw allowing a condominium corporation to do so and the respondent had complied. The court rejected the
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