Nipissing Condominium Corp. No. 4 v. Kilfoyl et al., 2010 ONCA 217

• Judge: Gillese, Juriansz and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 03, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 217;(2010), 260 O.A.C. 94 (CA)

Nipissing Condo. v. Kilfoyl (2010), 260 O.A.C. 94 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.094

Nipissing Condominium Corporation No. 4 (applicant/respondent) v. Paul Kilfoyl, Stephanie Kilfoyl, Chris McGuire, Trevor Mous, Chris Bruce and Kristen Campbell (respondents/appellants)

(C51101; 2010 ONCA 217)

Indexed As: Nipissing Condominium Corp. No. 4 v. Kilfoyl et al.

Ontario Court of Appeal

Gillese, Juriansz and LaForme, JJ.A.

March 3, 2010.

Summary:

The appellants owned units in the condominium operated by the respondent condominium corporation. The appellants rented their units to students who were not living together because of any familial connection. The respondent applied pursuant to, inter alia, s. 134(1) of the Condominium Act, seeking to enforce the terms of the Declaration and Bylaw which stipulated that the units were to be occupied as a "one family residence". The respondent obtained a judgment which declared that the appellants were in breach of the Condominium Act, that the condominium units could be occupied only as a one family residence as defined in the Declaration, and that occupation by multiple unrelated tenants was a breach of the Declaration and Bylaw. The appellants appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 916

Discrimination - Family status - General - [See Real Property - Topic 8988 ].

Real Property - Topic 8925

Condominiums - Declarations - Breach - [See Real Property - Topic 8988 ].

Real Property - Topic 8988

Condominiums - Bylaws, resolutions and restrictive covenants - Occupation restricted to one family - The appellants owned units in a condominium - They rented their units to students who were not living together because of any familial connection - The respondent condominium corporation applied pursuant to, inter alia, s. 134(1) of the Condominium Act, seeking to enforce the terms of the Declaration and Bylaw which stipulated that the units were to be occupied as a "one family residence" - The Declaration defined "family" as "a social unit consisting of parent(s) and their children, whether natural or adopted and includes other relatives if living with the primary group" - The respondent obtained a judgment which declared that the appellants were in breach of the Condominium Act, that the condominium units could be occupied only as a one family residence as defined in the Declaration, and that occupation by multiple unrelated tenants was a breach of the Declaration and Bylaw - The appellants appealed - They argued that it was unreasonable to restrict occupancy in this day and age on the basis of whether the occupants were related to one another - The Ontario Court of Appeal dismissed the appeal - The application judge correctly decided that the occupancy provision did not infringe any ground listed in s. 2(1) of the Human Rights Code - There was no error in the application judge's exercise of discretion under s. 134 of the Condominium Act.

Cases Noticed:

R. v. Bell, [1979] 2 S.C.R. 212; 26 N.R. 457, refd to. [para. 5].

Statutes Noticed:

Condominium Act, S.O. 1998, c. 19, sect. 7(4)(b), sect. 119(1) [para. 5]; sect. 134(1) [para. 2].

Human Rights Code, R.S.O. 1990, c. H-19, sect. 2(1) [para. 6].

Counsel:

Paul E. Trenker, for the appellants;

Sonja Hodis, for the respondent.

This appeal was heard on March 3, 2010, before Gillese, Jurianz and LaForme, JJ.A., of the Ontario Court of Appeal. The following endorsement of the Court of Appeal was released orally on March 3, 2010, and in writing on March 19, 2010.