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Aug 19, 2010 | Article 

Condo Board's Decision Making Process - A Recent Case

A recent June, 2010 decision from BC (Weir v. Strata Plan NW 17) recapitulates the court's deference to a board of director's decision making duties.

In this case, the group of unit owners were unhappy with the strata council’s decisions regarding settling, leakage and drainage problems in their block and they alleged the respondent condominium corporation was in breach of their fundamental duty to act reasonably in repairing and maintaining common property .

The unit owners sought an order requiring the strata council to investigate and repair the settling, leakage and drainage problems. Alternatively, they sought the appointment of an administrator to replace the respondent and make decisions relevant to the issues raised in this litigation.

The court held that the starting point for the analysis should be deference to the decision made by the strata council and where the court determines that the strata council has breached its duty the court may grant a mandatory injunction or appoint an administrator to perform the role of the strata council

In this case the court found that the unit owners failed to meet the onus of establishing a failure by the condominium corporation (the strata counsel) to carry out their duty to repair and maintain common property such that the court should intervene.

The judge provided the follow comments, which aligns with the court's position taken in many Ontario proceedings when the decisions of a board of directors are being challenged by unit owners:

"In resolving problems of this nature, there can be "good, better or best" solutions available. Choosing an approach to resolution involves consideration of the cost of each approach and its impact on the owners, of which there is no evidence before the court. Choosing a "good" solution rather than the "best" solution does not render that approach unreasonable such that judicial intervention is warranted.

In carrying out its duty, the respondent must act in the best interests of all the owners and endeavour to achieve the greatest good for the greatest number. That involves implementing necessary repairs within a budget that the owners as a whole can afford and balancing competing needs and priorities.

The course of action chosen by the respondent may or may not resolve the problems. If it does not, further remedial work, including separation of the two drainage systems, may be required. The respondent acknowledges that it will undertake that remedial work if it proves reasonably necessary.

It may even prove to be the case that the approach of the petitioner is the wiser and preferable course of action. Again, that does not render the approach of the respondent unreasonable.

Disagreements between strata councils and some owners are not infrequent. However, courts should be cautious before inserting itself into the process, particularly where, as here, the issue is the manner in which necessary repairs are to be effected. " 

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