Simon's Megalomaniacal Legal Resources

Condominiums - Oppression

. LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046

In LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046 (Ont CA, 2021) the Court of Appeal considered the test for oppression under the Condominium Act, 1998:

(a) Application of the Test for Oppression

[13] First, the appellant asserts that the application judge applied the wrong legal test for the oppression remedy under the Condominium Act by focusing on whether the respondent’s conduct was reasonable and whether the business judgment rule applied.

[14] We do not accept that the application judge applied the wrong test. As conceded by the appellant, she correctly identified the appropriate two-pronged test for oppression earlier in her reasons. In that regard, see Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, 285 O.A.C. 372, at para. 6. She headed her analysis of the parking garage negotiations: “Was MTCC Oppressive in Its Conduct of the Parking Garage Negotiations with LMC?” indicating that she knew to apply the same oppression analysis to the issue of the negotiations.

[15] We are satisfied that the application judge clearly understood and applied the correct test. Although it would have been preferable for her to have used the term “reasonable expectations” in her discussion of the parking negotiations, she was responding to the terminology used by the parties and to the arguments as framed by them. In addition, in relying on the business judgment rule, she correctly applied this court’s decision in 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375 and examined the context of the respondent’s decision-making. As stated by Hoy A.C.J.O (as she then was) at para. 53 of that decision:

Therefore, to summarize, the first question for a court reviewing a condominium board’s decision is whether the directors acted honestly and in good faith and exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. If they did, then the board’s balancing of the interests of a complainant under s. 135 of the Act against competing concerns should be accorded deference. The question in such circumstances is not whether a reviewing court would have reached the same decision as the board. Rather, it is whether the board reached a decision that was within a range of reasonable choices. If it did, then it cannot be said to have unfairly disregarded the interests of a complainant.

[16] In this case, the application judge concluded that there was no evidence of bad faith or oppressive conduct and that the respondent had acted reasonably. She accordingly applied deference to the respondent’s balancing of the interests of the appellant with those of the other unitholders. We see no error.

. Mohamoud v. Carleton Condominium Corporation No. 25

In Mohamoud v. Carleton Condominium Corporation No. 25 (Ont CA, 2021) the Court of Appeal set out the test for oppression under s.135 of the Condominium Act, 1998:

[8] Under s. 135(2) of the Act, the court must determine whether the impugned conduct is, or threatens to be, oppressive or unfairly prejudicial to the applicant or unfairly disregards their interests. The test under s. 135(2) has two prongs. First, the court must assess whether there has been a breach to the claimant’s reasonable expectations. If the answer is yes, the court must then go on to consider whether the conduct complained of amounts to oppression, unfair prejudice, or unfair disregard of the relevant interest: Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, 285 O.A.C. 372, at paras. 5-6; 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, 61 B.L.R. (5th) 173, at para. 29.

. Amlani v. YYC 473

In Amlani v. YYC 473 (Div Ct, 2020) the Divisional Court identifies a leading case on the oppression provisions of s.135(2) of the Condominium Act:

[29] The application judge correctly stated the legal test for oppression under s. 135(2) of the Act and applied the leading case, BCE Inc., Re, 2008 SCC 560, as well as several recent condominium oppression cases. The application of the oppression remedy is based on findings of fact and the exercise of discretion by the Court.