By Caleb Edwards -
Please note, this article is current as of its date of publication. Events during this COVID-19 pandemic are rapidly developing. To ensure you have the latest information, you should contact the author of this article.
During the current COVID-19 pandemic, many condominium corporations have brought in bans on short-term rentals and/or renovations to support government-mandated social distancing measures and prevent the spread of the coronavirus.
At the same time, the courts remain closed to many civil matters. This leaves a conundrum. Corporations have reasonable and enforceable rules, and potentially no ability to resort to court.
In our experience, the courts are not accepting new compliance applications. As this is the primary external method of enforcement, it is possible that unit owners may simply ignore demand letters and proceed on with short-term rentals or renovations despite prohibitions.
A corporation faced with such a unit owner is not without options, however. The courts remain open for urgent civil matters. This definition includes matters relating to COVID-19. In York Condominium Corporation No. 419 v. Black, 2020 ONSC 2098, our firm was able to obtain an interim consent order preventing unit owners from having third-party visitors attend at the unit. As set out in the endorsement of Myers J., and an earlier endorsement on the same day,[1] the corporation was concerned that third-party tradespeople were attending at the unit to conduct renovations. Those renovations were alleged to be occurring contrary to the corporation’s declaration, by-laws and rules.
In exchange for agreeing to defer the balance of the compliance application, the unit owners agreed to an order stating that they would “allow no one to enter into their condominium unit until further order of the court.”
As demonstrated, provided there is a sufficient connection to protecting the public from COVID-19, it is possible to have applications heard on an interim basis.
There is no specifically prescribed procedure for this approach. In this case, the complete application record, unissued, was provided to the court by email together with a cover email explaining why the matter was urgent. We suggest a similar approach in future cases.
The courts appear to be rapidly assessing these matters. As is evident from the two endorsements, the interim order was granted a few hours after the initial endorsement setting up the hearing.
Provided the question is urgent, the parties will be heard by telephone conference with a judge of the superior court.
We suggest some common sense practical tips for ensuring that the corporation is able to obtain the ruling it seeks:
Have all materials prepared: these matters move rapidly and are initiated by providing materials to the court by email. Being able to provide a full application record (which should be under 10mb) will help.
Warn the Unit Owner: the courts remain concerned with fairness in this process. If you can show that the unit owner was aware that the corporation was seeking court sanction, then there will be less concern of ‘ambush’. Being in regular contact with the unit owner will also reassure the court that the unit owner will be made aware of the implications of any orders.
Ask for Specific Relief: make sure that materials seek a waiver of regular service and whatever COVID-19 related relief (perhaps in the form of an interim order). In this time of social distancing, personal service may be unnecessarily dangerous. If you are prepared to show the court that you have clearly made the materials available to the unit owner, then you will likely at least get interim relief.
Be prepared to compromise: corporations are unlikely to get full resolution of all outstanding issues. One way to achieve much of the results sought is to compromise on an interim order providing relief related to the COVID-19 (or other urgent) risk. Other compliance infractions can be left to be dealt with at a later point. This has the benefit of allowing the court to grant more stringent (and swift) interim relief since the matter can be reheard at a later date.
If you have questions or wish to discuss the implications for your corporation, please do not hesitate to contact us. Each matter is unique and we cannot promise the same result or quick treatment on other matters.
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.