The Courts will apply the business judgment rule where the decision of a condominium board is challenged. The rule provides that as long as a director’s decision is found to of been within the range of reasonable choices that could’ve been made in weighing conflicting interests, the court will not go on to determine if the decision was a perfect one. As long as a board asked fairly and reasonably court will not second-guess its decision. These principles were applied to a case where condominium unit owners challenged a condominium rule which prohibited leases having terms of less than six months. Kumar v TSCC No. 2492 2020 ONSC 956 (Canlii)
Minutes of a board meeting must be written documents that record at least the date of the meeting, members present, proposition(s) or issues considered, and the decisions made. Where “meetings” constitute a series of discussions between board members, the totality of which amount to quorum, a written record should be created to reflect the discussions and decision made. (Turner v. Peel Condo. Corp. 42. See 2020 ONSC 738 (Canlii)
Section 23 (2) of the Condominium Act requires a condominium corporation to give written notice of the general nature of any legal action contemplated by the corporation before commencing an action. Ontario’s Court of Appeal recently decided, reversing its own 1983 decision, that the failure to give such notice does not render the legal action a nullity. Such an omission is simply a procedural irregularity that can be cured. See YRSC 1206 v 520 Steeles 2020ONCA63.
Generally an action against the deceased person or their estate must be commenced within two years of the date of death. However, as Wilkinson v. The Estate of Linda Robinson 2020 ONSC 91 (Canlii) makes clear this does not apply to an action in respect of real property. In the latter case the 10 year limitation set out in the Real Property Limitation Act applies in an action claiming rights over such property may be commenced at any time within that 10 year window. This creates some clear problems for the administration of a person’s estate given the uncertainty as to whether a valid, unknown claim exists and may be subsequently exercised, leading to hesitancy on the part of executors/trustees in winding up the estate.
A recent case reminds us that the mediation and arbitration process set out in Ontario’s Condominium Act must be engaged before going to court, but only if the dispute is between one or more owners and the Condominium Corporation. If the dispute arises between a tenant and the Corporation because of the breach, for example, of a bylaw or rule, the interested parties can go directly to court to have the dispute resolved. This does not prevent interested parties, including a tenant, to volunteer to enter the mediation and arbitration process, whether as a precondition to a court action or as a final resolution. See MTCC 933 v Lyn 2020ONSC196 (Canlii).