The (Mis)Use of Common Elements: London Condominium Corp. No. 13 v. Awaraji

On Thursday, August 23rd, the SCC will render judgments in several applications for leave to appeal including London Condominium Corp. No. 13 v. Awaraji, an application regarding restrictions of particular interest to exclusive use common elements in condominiums. Specifically, this leave application considers the standard for the enactment of rules which restrict the common law right to use land for all lawful purposes and the issue of which party is responsible for demonstrating that the rules of the Condominium Corporation further the s. 58(1) objectives of the Condominium Act.

The appellants, Christian Awaraji and Tania Bayoud, both unit holders in a condominium complex, installed satellite dishes on their patio terraces, an exclusive use common element in London Condominium Corporation No. 13. According to the Declaration of the Condominium Corporation:

No television antennae, aerial, tower similar structure and appurtenances thereto shall be erected on or fastened to any units, except for or in connection with a common television cable system.

Further, the Condominium Corporation enacted several rules, one of which being that the Corporation entered into “an agreement with Star Choice for exclusive delivery of Satellite Services”, whose service has one dish per set of units. As such, no other Satellite services are permitted. The purpose of these standards is to “give the complex a uniform standard of appearance and quality that will enable all owners to benefit from well maintained units”. Since the satellite dishes installed by the appellants were serviced by a different satellite provider, they were ordered to remove the dishes.

In February, 2007, the Ontario Court of Appeal dismissed Awaraji and Bayoud’s appeal of this order. The appellants claim that satellite dishes are prohibited by the Declaration as a result of the phrase “except for in connection with a common television cable system”. In contravening the terms of the Declaration and allowing some satellite dishes and not others, the appellants claim that that the Condominium Corporation acted in a discriminatory manner. The Court of Appeal, however, dismissed this argument, explaining that the Declaration was reasonably read by the Condominium Corporation to include both cable and satellite units as part of a common television system, leaving their decision to require the appellants to remove their satellite dishes installed by an unauthorized service provider valid. The Court of Appeal explained, “Moreover, we consider that it is for the Condominium Corporation to interpret its Declaration and By-Laws and that so long as its interpretation is not unreasonable, the court should not interfere.”

The appellants also argued that because satellite dishes are stand-alone units, they cannot be considered part of the Declaration’s definition of “a common television cable system”; the Court of Appeal, however, rejected this argument as well, since the rule clearly stated that a common system includes permitted satellite services. Finally, the appellants claim that because the satellite dishes were installed on their patios, there is no evidence that the dishes were visible to the public and thus, no evidence that they contradicted the rule directed to maintain the consistent appearance of the complex, a permitted purpose of a rule under s. 58 of the Condominium Act. The Court of Appeal, however, found that the appellants must introduce evidence that the application of the contested rule contravenes a permitted purpose of a rule under s. 58 of the Condominium Act. Since the rule clearly states that it was aimed at “preserving a uniform appearance and quality in the condominium complex”, which is a purpose that is consistent with s. 58 of the Condominium Act, and the appellants failed to submit evidence to the contrary, the Court of Appeal dismissed this argument as well.

In order to accommodate the increased population in our largest cities, we are experiencing growth in the number of condominiums being built. With the number of condominium unit owners on the rise, we will likely see more disputes between condominium corporations and unit-holders. While condominium corporations are generally known for stringent rules and guidelines, should the SCC grant this application for leave to appeal and perhaps, reverse the ruling, we may witness more freedom and flexibility for unit-holders.