Back in April 2009, the board of directors became aware that Donna Young, one of the owners, had installed in her unit a tankless water heater that vents through the outside wall of the townhouse. The exterior walls are common elements and no alterations may be made without board approval.
Eventually, the board began a court application for an order requiring Young to remove the vent and restore the wall to its original condition.
Young objected saying that the board was selectively enforcing the requirements of the project’s declaration and it would be unfair to enforce it only against her.
When the case came before Justice Douglas Gray last year, the evidence confirmed that there had been other contraventions of the condominium’s declaration which had not resulted in enforcement proceedings.
One unit owner had torn up a common element lawn and converted it to a garden, which was inconsistent with the appearance of other yards. Another owner constructed a furnace vent through the rear wall of the unit, and at least three kitchen exhaust vents were installed through the exterior walls of units.
All of these actions were violations of the condominium declaration, but none had resulted in court proceedings.
At the court hearing last year, Young argued that she was led to believe by the inaction of the board in the other cases that she would be permitted to breach the outside wall of the unit. She also took the position that since the board had selectively enforced the declaration, it would be unfair to enforce it against her in similar circumstances.
The issue that gave Gray the most concern was the one alleging selective enforcement.
That argument, wrote the judge, “raises issues of fairness on both sides. On the one hand, unit owners as a group, and their representatives, the board of directors, have an interest, and indeed a duty, to enforce the declaration. On the other hand, the individual unit holder who violates the declaration has a legitimate cause for complaint where the board of directors has permitted other violations to occur without consequence. The task of the court is to balance these competing interests in a specific case.
“In my view,” he concluded, “there has been a degree of selective enforcement by the (board of directors) sufficient to give rise to a concern. However, it does not approach the sort of rampant nonenforcement that has arisen in some cases, particularly those involving the keeping of pets.”
The judge referred to a 1970 case involving selective enforcement of a Toronto bylaw prohibiting multi-family dwellings in an area zoned for single family use. The Ontario Court of Appeal, later supported by the Supreme Court of Canada, ruled that the public interest in enforcement of the bylaw should prevail over the private interest of one who has violated the law, even though the city had been discriminatory in enforcement.
In the Brampton case, Gray decided that the condominium declaration has the force of law as far as the unit owners are concerned.
“It is a sort of constitution that binds them all,” he wrote, “and which the board of directors is legally obliged to enforce. There is an interest, in the collective, in having the declaration enforced, even if some transgressors have been allowed to violate it. In such a situation, the collective’s interest in having the declaration enforced must prevail over the private interest of the respondent. The situation would undoubtedly be different if there was massive non-enforcement as was the case in some of the cases involving pets.”
Young was ordered to restore the wall and remove the water heater vent, but the judge hinted that the condo’s selective enforcement of the rules would be relevant to the issue of costs it could recover.
Clearly, for the benefit of the community of condo owners, the judge’s decision was correct. But that doesn’t mean it was fair to Young, who was the target of discriminatory enforcement.