January 16, 2023

By: Jae Shim & ​Sachira Wimalaweera  

Are you a developer of a Condo or a member of a Condo Corporation?

Then, here is why you need to retain the services of the experienced lawyers at Shim Law to draft or amend your Condo Bylaws, or to advise you on issues relating to your Condo Corporation Bylaws.

We understand and appreciate the tiresome efforts you put in to maintain your condo community and make it a better place for you as well as all others living with you, especially if you are a member of the Board of Directors of your Condo Corporation. However, we also feel your difficulty in comprehending and adhering to all the legal requirement and the numerous issues put in front of you by the owners and residents, not to mention the developments and changes brought into the laws governing condo properties, despite the property being a residential, commercial or a mixed purpose condo.

In relation to all condominium properties, “Bylaws” are a crucial and mandatory element, in terms of Section 32 (1) of the Alberta’s Condominium Property Act – Revised Statutes of Alberta 2000, Chapter C-22 (CPA); (httpss://canlii.ca/t/55pk2)

32(1) The bylaws shall regulate the corporation and provide for the control, management and administration of the units, the real and personal property of the corporation, the common property and managed property

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At Shim Law, we are experienced and well-equipped to ease-off the burden of your shoulders, when it comes to drafting, amending or otherwise advising you on issues relating to the bylaws of your condo. 

1. Drafting bylaws  –

• If you are a developer of a Condo;

As you know that even if you can resort to the default bylaws set out in the CPA according to Section 33, it is always good to have a set of bylaws, unique and specific to your condo property to have been drafted, which will enable you to cover a wider scope of aspects of the issues relating to your property, in your own way. If you are about to register your Condominium Plan, once you retain us, we can ensure to have a strong, relevant and valid set of bylaws drafted for you. With our experience, we will ensure the bylaws to perfectly fall in place with provisions of the CPA and to have you less worried when the bylaws are implemented in the future. 

2. Amending bylaws –  

• If you are a member of a Condo Corporation or the Board of Directors of a Condo Corporation;

With the introduction of the amendments to the CPA to govern the condominium properties in Alberta, also known as the Bill 19, many significant changes are introduced. 

• reduce the financial risk as well as the cost of litigation, in the event damages are occurred to the property, by allowing condominium corporations to charge back costs related to damages to the owner;
• changes to the voting options –
• to make the processes at the annual general meeting more effective, in particular to introduce an owner-based method of voting, in addition to the unit-factor votes currently existing;
• to establish an alternative to owner votes;
• allow owners to request a vote by unit-factor prior to the results of an owner vote being announced;
• clarify that, for a special resolution, unit factors owned by the corporation vote with the majority;
• introduce ‘Converted Property Study’, in place of the ‘Building Assessment Report’;
• move provisions respecting responsibility for doors and windows from the regulation into the Act, to have all provisions outlining responsibility for property in one place;
• remove expired provisions related to updating bylaws;

In view of the aforementioned changes, you would understand that it is always a prudent choice to retain the services of the experienced professionals in the field of laws relating to condo properties and their management, for you to be competent enough to face the challenges posed by the legal requirements in continuing with your condo corporation membership or discharging the duties as a Director of a Condo Corporation.

3. Advisory capacity –

One of the main reasons why Bill 19 – amendments to the CPA will be introduced is due to the increased number of disputes which arise in terms of condo management and related affairs. We at Shim Law completely understand how difficult it can be when multiple issues arise in terms of governing the condo corporation, especially when it concerns safeguarding the best interests of all stakeholders to the property. 

In order to ease off the negative impacts that can be caused by the Board of Directors of your Condo Corporation, we suggest that you appoint well-versed professionals in the field of condo-related laws, to act in the Advisory capacity. Once you retain us as the Legal Advisors of the Board of Directors of your Condo Corporation, we will assure to provide the best alternatives available within the legal parameters, to resolve disputes, leading to saving hundreds of thousand dollars, which otherwise would be spent on litigation. 

We are competent to provide you the best of legal advice and services in your specific matter relating to the Condo Corporation, with the experience we have gained over the years. Our legal team can help you in drafting Condo bylaws as well as in acting as advisors, coupled with the litigation experience that we have developed. 

Litigation involved against or on behalf of the residential and/or commercial condo corporation

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Thinking of how to deal with the legal matter that had come-up at your condo corporation? Or do you feel that your condo rights have been violated?

Why don’t you consider reaching Shim Law to find the solution?

We are a well-experienced and confident team of legal professionals, who strive to deliver justice to our clients, to the maximum level possible; you might be a condo owner and a member of the Condo Corporation or a member of the Board of Directors of the Condo Corporation, who is facing or about to face a legal action initiated by you or against you, in terms of the provisions of Alberta’s Condominium Property Act – Revised Statutes of Alberta 2000, Chapter C-22 (CPA). (httpss://canlii.ca/t/55pk2)

With the increased rate of real estate development projects taking place within the province, it is notable that the construction of the condo properties has also increased, leading to the legal issues arising in relation to the particular type of real estate to increase at a drastic rate. Our experience has been that the litigation relating to Condo Properties are mostly based on the wide scope of the Section 67 of the CPA. This section mainly deals with the remedies that are ordered by the court in relation to the “improper conduct” of an “interested party” of a particular Condo Corporation. 

67(1) In this section,

 (a) “improper conduct” means

 (i) non-compliance with this Act, the regulations or the bylaws by a developer, a corporation, an employee of a corporation, a member of a board or an owner, 

 (ii) the conduct of the business affairs of a corporation in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party,

 (iii) the exercise of the powers of the board in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party,

 (iii.1) the conduct of an owner that is oppressive or unfairly prejudicial to the corporation, a member of the board or another owner,

 (iv) the conduct of the business affairs of a developer in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit, or

 (v) the exercise of the powers of the board by a developer in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit;

(b) “interested party” means an owner, a corporation, a member of the board, a registered mortgagee or any other person who has a registered interest in a unit.

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As Section 67 is aimed at curtailing the unfair conducts and practices by one party causing prejudice to another party concerned with the Condo Corporation, it is also known as the “Oppression Section”. Before moving to any further explanations, it is worthwhile to note that remedies for injustice caused by unfair practice is also provided for in the Alberta Business Corporations Act, but Section 67 of the CPA addresses them more extensively. Therefore, we do not find it surprising to see so many cases being instituted in relation to the Condominium Property Law, under this particular section of the CPA. 

As you would understand, the section looks at a varied type of conducts, including but not limited to, not properly adhering to the provisions of the CPA, the regulations under the Act as well as the Condo Bylaws. The section also covers issues arising from parties related to the Condo acting in an unfair and unjust manner to any other party or parties, causing their rights to be violated, despite the property being a residential, commercial or a mixed condo. 

If we may cite a few already decided cases, which are the most notable examples and are helpful to understand in what can be considered as “improper conduct”;

• 934859 Alberta Ltd. v. Condominium Corporation No.031 2180, 2006 ABQB 589 (httpss://canlii.ca/t/1p1hv), the Applicants in this matter resorted to legal action to remedy the unfair and unjust manner of conducting business by the Condominium Corporation had failed in allocating the expenses, costs or charges in an equitable manner, based on the unit factor – 

The court decided that “…..the board has unfairly disregarded the interests of the applicant and the other main floor owners. The board shall reallocate the costs of utilities as noted above and charge only the second floor owners with the expenses for security and janitorial expenses. Additionally the parking shall be reallocated based on unit factors. The parking spaces shall be allotted to the unit owners fairly, having regard to the location of the spaces in relation to the owners’ units. The applicant shall be entitled to its costs of the application payable by the Respondent. These costs and the legal fees payable to the respondent’s own counsel shall not be an expense allocated to the applicant in any future assessment…”

• Lupuliak v Condominium Plan No 8211689, 2022 ABQB 65 (httpss://canlii.ca/t/jm082), the applicant sought action against the Condo Corporation from removing the doorbell installed by the applicant on the applicant’s unit on the contention that the Applicant has a right to install and maintain the doorbell as the Condo Corporation had failed to enforce the bylaws relating to the modification of the condominium unit doors – 

The Court found that “…..the condominium board acted reasonably in seeking to have the doorbell removed and has not in any way acted oppressively toward Ms. Lupuliak.  Ms. Lupuliak’s application is dismissed.  I further find that the doorbell was installed contrary to the condominium by-laws and that the condominium board has the authority to require its removal.  The Respondents’ cross-application is granted…”

• Duperron v Condo Plan No 792 2641, 2022 ABQB 436 (httpss://canlii.ca/t/jpxw3), the applicants sought the intervention of the Court in this matter where the applicants had to forego the rental income they were receiving through the unit as the rent agreement was terminated due to the improper conduct of the Condo Corporation with respect to the bed bug infestation of the property – the instant action had dealt in – detail about several important aspects on the remedies available for the litigants, who resort to legal action under Section 67 of the CPA, including special and general damages, declarations, injunctions, appointment of investigators and costs – 

The Court decided that “….the Condominium Corporation breached its bylaws and the Act by failing to address the bed bugs in the walls between condominium units. I also find that the Condominium Corporation unfairly disregarded the Duperrons’ interests by failing to obtain access to the units adjacent to the Duperrons’ unit for inspection and extermination of bed bugs. The only policy the Condominium Corporation had with respect to bed bugs was to charge the cost of inspections and treatment to the unit owner who reported finding bed bugs in their unit. That policy unfairly disregarded the Duperrons’ interests because it discouraged other unit owners from reporting bed bugs in their units. The Condominium Corporation did not have a policy to require inspection and treatment of adjacent units and it did not actually require inspections and treatments in all units adjacent to the Duperrons’ unit. Lastly, I find that the appropriate remedies are declarations and special damages…”

Accordingly, Section 67 of the CPA has given rise to an increased number of legal suites which addresses different aspects of improper conduct, from and against the various interested parties of a Condo Corporation, despite the establishment being residential, commercial or mixed purpose in its nature, as aforesaid. Similarly, in such an event, the remedies the Court would be inclined to award would vary;

• Directing an investigator to be appointed to review the improper conduct and report to the Court;
• Directing improper conduct to cease;
• Giving directions on how matters are to be carried out to avoid recurring issues;
• Awarding compensation in respect of any losses resulting from improper conduct;
• Awarding costs; or
• Providing any other directions that the Court considers appropriate.

We believe that you have understood how wide the operation of the scope of Section 67 of the CPA span and have realized that it is always the best option to retain the services of the most competent professionals in the field to represent you, in the event you have become or will be becoming a party to a legal action under the guise of Section 67 of the CPA. 

We assure you the best of legal advice and services provided in your matter relating to the Condo Corporation, with the experience we possess in terms of litigation, drafting Condo bylaws as well as in acting as advisors to our clients. 

About Sachira

achira is a Regulated Canadian Immigration Consultant in Canada and he is authorized to deal with Canadian Immigration authorities and advise or consult clients regarding Canadian Immigration matters. He practices in all the areas of immigration matters and is a member of good standing with ICCRC. He also holds a Bachelor of Law from Sri Lanka Law college and a Bachelor of Art in Criminal Justice from the University of Winnipeg.