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TRIBUNAL refuses on specifics SENIOR COMMUNITY'S no decal Rule / community ambiance 2023/04/13 18:43  
Not legal advice, as usual.

Some American shared ownership communities - even low density ones - have seen incredibly bitter wars over decaled business pickup trucks left visible . Pickup trucks are mainstream. Some residents include state police or hydro employees with vehicles; some folks do home business.

Here - purely on the facts of this specific case - an ONCAT Ontario Condominium Authority Tribunal adjudicator refuses to grant enforcement of a senior / golfing community's application to expel a condo tenant's pickup truck bearing some sorta decal(s) and visible working equipment.

BUT the Rule is NOT struck down

note : It's left unclear exactly what is objected to, but the applicant seniors argue that the undisputed Rule violation also undermines the golfing community's uniformity or ambiance or whatever.

1 - Details :

Adjudicator refused to enforce ( no decal etc ) Rule against specifics of this otherwise undisputed technical Rule infraction : Allows decaled truck ( with some visible tools ) to stay despite technical violation of seniors condo community RULE.

Despite undisputed & literal technical violation ( & tantalizingly without details ) ONCAT adjudicator holds that IN THIS CASE enforcing the Rule would fail to beat reasonableness criteria & not supportable enough by Act’s ss 58 (1) platform ( scope for Rule-making )

In other words ONCAT makes an exception : these specifics are not established sufficient for no decal / no commercial vehicle Rule to be enforced but only in this specific case. Dictum that same Rule might be enforceable on other specifics ; Rule per se is NOT ultra vires. ? septic system pumper truck ? giant transit vehicle ? school buses ? ambulance ? morgue wagon ?

Simcoe CC 104 v Leary et al 2023 ONCAT 52 issued March 30/23

2 - Toronto condo law specialist Denise Lash discusses the adjudication and recommends some "takeaways" for condo Boards.

April 3/23
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TRIBUNAL refuses on specifics SENIOR COMMUNITY'S no decal Rule / community ambiance 2023/04/13 19:14  
Simcoe CC 104 v Leary et al 2023 ONCAT 52 issued March 30/23

Xcrtp :

“ . . . [2] Both the Respondent and Intervenors take the position that the Rule is unreasonable and/or is being enforced inconsistently and that the Tribunal should order that it be repealed. They further submit, that should the Rule not be repealed, an exception to the Rule should be granted to the Intervenors for the duration of their tenancy.

[3] For the reasons set out below, I find that parts of the Rule are not in accordance with s. 58(1) of the Condominium Act, 1998 (the “Act”) and are unenforceable.

Consequently, under s. 1.44(1) 2 of the Act, I order that SCC 104 refrain from enforcing this Rule against the Intervenors.


Issue No. 1: Is SCC 104’s Rule 4 unreasonable?

[8] Section 58(2) of the Act requires a rule to be reasonable. It reads, “The rules shall be reasonable and consistent with this Act, the declaration and the by-laws.”.

[9] Therefore, I must first determine whether the Rule falls within the parameters of s. 58(1) and then, if it does, I will consider whether it is reasonable.

[10] I asked both parties to provide submissions specifically on the Rule within the context of s. 58 of the Act.
. . . [17] I acknowledge that the Rule may be a longstanding one and that the ‘look’ of the community may be important for some owners, but the length of time a rule is in place and its importance to some owners are not factors that fall within s. 58(1) of the Act.

[18] While there might be instances where the facts show that a commercial vehicle or advertising and signs on a vehicle are prohibited because they do cause more than a trivial interference and do unreasonably interfere with the use and enjoyment of units and common elements, perhaps due to safety, size, maintenance issues, or other factors specific to the condominium community, in this case SCC 104’s evidence and submissions do not demonstrate this.

Therefore, I cannot conclude that the parts of the Rule at issue were enacted to prevent an unreasonable interference with the use and enjoyment of the common elements or individual units as per s. 58(1)(b) of the Act.

Nor can I conclude that the Rule was made to prevent a safety, security or welfare risk as per s. 58(1)(a) of the Act.

Accordingly, I find that the parts of the Rule that prohibit the parking of licensed commercial vehicles and vehicles that have advertising or signs affixed to them, on the common elements or in exclusive use areas do not meet the purposes for which rules can be made under s. 58(1)(a) and (b) of the Act.

Under s. 1.44(1) 2 of the Act, I order that SCC 104 refrain from enforcing the parts of the Rule at issue against the Respondent and Intervenors.

[19] Finally, I note that SCC 104 may choose to amend the Rule.

There may well be rules that set out prohibitions regarding advertising on vehicles and the types of vehicles that can be parked on condominium property which are appropriate under s. 58(1) of the Act.

However, should SCC 104 choose to do so, I encourage them to be cognizant of the purposes for which rules can be made. [20] No costs have been requested and none are ordered." - unquote
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