Digest: Harvard Developments Inc. v Park Manor Condominium Corp., 2018 SKCA 81

• Date: October 18, 2019

Reported as: 2018 SKCA 81

Docket Number: CACV 3063 , CA18080

Court: Court of Appeal

Date: 2019-10-18

Judges:

• Richards
• Herauf
• Ryan-Froslie

Subjects:

• Condominium � Unit Factors Statutes � Interpretation � Condominium Property Act, Section 99.2 Statutes � Interpretation � Condominium Property Regulations

Digest: The appellants owned a condominium in a building operated by the respondent. The appellant applied, unsuccessfully, to the Court of Queen�s Bench pursuant to the oppression remedy in s. 99.2 of The Condominium Property Act, 1993 and pursuant to s. 49(1)(a) of The Condominium Property Regulations, 2001 for an order prohibiting an amendment to the bylaws that changed the manner of calculating condominium fees. The appeal dealt with whether or not the chambers judge erred in his interpretation or application of the provisions. The appellants owned one of the largest units in the condominium complex. The original calculation of the expenses paid by owners was based solely on square footage. The calculation was altered in 2007 to use hybrid unit factors that reflected both square footage and an equal sharing of some of the common expenses. In 2014, the Condominium Board resolved to amend the corporation bylaws to provide a new scheme of apportionment based on unit size. The amendment passed with 75 percent of the unit owners voting in favour of it. Four unit owners, two of whom were the appellants, did not consent. One of the appellants� condominium fees increased by $179.71 per month and the others decreased by $24.64 per month. The chambers judge found that s. 49(5) allowed the appellants to bring the application and the court had broad discretion. The chambers judge concluded that the amendment had been made with the proper procedures, so it could not be interfered with unless the respondent�s conduct in amending the bylaw was oppressive, unfairly prejudicial or it unfairly disregarded the interests of the appellants as set out in s. 99.2 of the Act. The chambers judge used a two-step test for oppression. The chambers judge did not find that the respondent�s conduct was oppressive, or unfairly prejudicial, or that they unfairly disregarded the appellants� interests. The issues on appeal were: 1) whether the chambers judge erred in his application of s. 99.2 of the Act; and 2) whether the chambers judge applied the proper test with respect to s. 49 of the Regulations.
HELD: The chambers judge did err in his...