Tofin v. Spadina Condominium Corp. et al., (2011) 376 Sask.R. 140 (QB)

• Judge: Dovell, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 02, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 376 Sask.R. 140 (QB);2011 SKQB 219

Tofin v. Spadina Condo. (2011), 376 Sask.R. 140 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JL.006

Dennis Tofin (applicant) v. Spadina Condominium Corporation (respondent corporation) and Tony Boryski, Maurice Duval, Benjamin Goldstein, Elaine Malkin, Tom McClocklin, Jr., Tom McClocklin, Sr. and Sandy Rees (respondent directors) and Rembrandt Holdings Ltd. and Commerce Holdings Limited (respondent commercial owners)

(2010 Q.B.G. No. 1500; 2011 SKQB 219)

Indexed As: Tofin v. Spadina Condominium Corp. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Dovell, J.

June 2, 2011.

Summary:

Tofin, a residential unit owner at Spadina Condominium Corporation, brought an application against the corporation, its board of directors and the owners of three commercial units, seeking relief pursuant to rule 664 of The Queen's Bench Rules. In particular, Tofin asked for a declaration interpreting a bylaw of the corporation with regard to the election of the members of the board with a view to determining the voting rights of the commercial owners.

The Saskatchewan Court of Queen's Bench dismissed the application. The interpretation of the bylaw as adopted by the board of directors was reasonable and consistent with the language of the bylaws.

Real Property - Topic 8861

Condominiums - Corporation - General - The applicant, a unit owner at a condominium corporation, sought an order in the nature of a declaration interpreting a bylaw of the corporation - The Saskatchewan Court of Queen's Bench stated that "in order to succeed on an application such as this one, the applicant must point to a clear public or statutory duty on the part of the Condominium Corporation. As was determined in Anderson [v. Owners-Condominium Plan No. 99SA34021 (2010) (Sask.)], a condominium corporation does not meet the definition of a body which owes a public duty. However, in certain circumstances, a condominium corporation owes a statutory duty ... A condominium corporation is mandated by s. 35(1) of the [Condominium Property] Act to interpret and enforce its bylaws" - See paragraphs 24 and 25.

Real Property - Topic 8873

Condominiums - Corporation - General - Decisions of - Judicial review - [See Real Property - Topic 9052 ].

Real Property - Topic 8997

Condominiums - Bylaws, resolutions and restrictive covenants - Interpretation - The applicant, a residential unit owner at a condominium corporation, brought an application against the corporation, its board of directors and the owners of three commercial units - He asked for a declaration interpreting a bylaw of the corporation with regard to the election of the members of the board with a view to determining the voting rights of the commercial owners - The Saskatchewan Court of Queen's Bench dismissed the application - The interpretation of the bylaw as adopted by the board was reasonable - The wording of the bylaw was clear, plain and unambiguous - The Condominium Property Act provided that all owners were to vote on all questions proposed at any meeting - The applicant was asking the court to interpret the bylaw in such a way that the commercial owners would only be permitted to vote for their own nominees and would be barred from voting for or against anyone nominated by the residential owners - There was no specific provision in the bylaws that would allow such an interpretation - To imply such a provision would result in the bylaw being in contravention of the voting rights set out in s. 41 of the Act, and that was prohibited by s. 47 - See paragraphs 34 to 39.

Real Property - Topic 8997

Condominiums - Bylaws, resolutions and restrictive covenants - Interpretation - The Saskatchewan Court of Queen's Bench concluded that principles of contract interpretation had no place within the scope of the within application, being the interpretation of a condominium bylaw - "This process is not analogous to the interpretation of a contract. The owners of condominiums within a condominium corporation are not in the same position as the parties to a specific contract ... Notwithstanding some of the owners of a condominium corporation not being in agreement with certain provisions of the bylaws, those same owners are bound to comply with all of the provisions of the bylaws eventually enacted by that condominium corporation" - As such, the court was not prepared to consider the arguments of the applicant's counsel with regard to the intent of the applicant at the time the bylaws were enacted or apply other principles of contract interpretation in determining whether the condominium board's interpretation of the bylaw was reasonable - See paragraphs 40 to 43.

Real Property - Topic 9025

Condominiums - Elections and voting rights - Unit owners - [See first Real Property - Topic 8997 ].

Real Property - Topic 9051

Condominiums - Judicial review - General (incl. when available) - [See Real Property - Topic 9052 ].

Real Property - Topic 9052

Condominiums - Judicial review - Standard of review - The applicant, a unit owner at a condominium corporation, sought an order in the nature of a declaration interpreting a bylaw of the corporation - He argued that the appropriate standard of review was correctness - The Saskatchewan Court of Queen's Bench rejected that proposition - The appropriate standard of review was reasonableness - In Anderson v. Owners-Condominium Plan No. 99SA34021 (2010), the court considered the standard of review to be applied when faced with an application for judicial review of a condominium board's decision - Although in that case the court concluded that judicial review did not apply to discretionary decisions of a condominium board, it concluded that in a situation where judicial review did apply, such as a statutory duty situation, the standard of review was reasonableness - As held in the Anderson decision, due deference should be given to the condominium board with regard to its interpretation of the bylaw - See paragraphs 28 to 30.

Cases Noticed:

Anderson v. Owners-Condominium Plan No. 99SA34021 (2010), 352 Sask.R. 106; 2010 SKQB 53, folld. [para. 25].

Devlin v. Owners-Condominium Plan No. 9612647 (2002), 318 A.R. 386; 2002 ABQB 358, refd to. [para. 31].

London Condominium Corp. No. 13 v. Awaraji et al. (2007), 221 O.A.C. 240; 2007 ONCA 154, refd to. [para. 32].

Wilson v. Condominium Corp. No. 021 1057 et al., [2010] A.R. Uned. 432; 2010 ABPC 150, folld. [para. 42].

Statutes Noticed:

Condominium Property Act, S.S. 1993, c. C-26.1, sect. 35(1), sect. 37(1), sect. 39(1), sect. 41, sect. 44(3), sect. 47 [para. 23].

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 664 [para. 1].

Counsel:

Gary A. Meschishnick, Q.C., for the applicant;

M. Kim Anderson, for the respondent corporation;

Naheed Bardai, for the respondent commercial owners.

This application was heard before Dovell, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision dated June 2, 2011.