Boodram v. Peel Standard Condominium Corporation No. 843
2021 ONCAT 31 · April 15, 2021 · Partially upheld
ONCAT ordered Peel Standard Condominium Corporation No. 843 to permit a guest's vehicle to use visitor parking until the corporation could 'demonstrate conclusively' that the driver was actually a resident. Vice-Chair Clifton held that the corporation's evidence of guest-versus-resident status was inconclusive on both sides, and that 'inconclusive' resolves against the enforcing party — not against the owner. The case also voided the corporation's visitor-parking 'policies' (an 8-permit monthly cap, permit-request requirements) because they had never been properly enacted as rules under s.58 of the Ontario Act. Direct authority for two propositions: (1) the burden of proving guest/resident status falls on the corporation, and (2) policies that look and operate like rules ARE rules — and unenacted rules cannot be enforced.
Why this matters for Alberta owners
TL;DR: When the condo claims your guest is actually a resident misusing visitor parking, the burden of proving that is on the corporation — and 'inconclusive' resolves against them, not against you. Vice-Chair Clifton in Boodram v. PSCC 843 also held that any 'policy' the corporation enforces against owners must be enacted as a rule under s.58 of the Ontario Act; unenacted policies — even ones that have been informally in place for years — are not enforceable. The Alberta translation: a fine notice that rests on (a) the corporation's unverified assumption about who's a visitor vs resident, or (b) the corporation's internal policy that was never properly adopted as a bylaw under section 32 of the Condominium Property Act, is substantively defective.
The facts. Kavita Boodram owned a unit at PSCC 843 and had a frequent visitor who drove a distinctive Honda CRV. The corporation, based on the frequency of the CRV's appearances over several years, concluded that the driver was not really a visitor but a resident — and therefore not entitled to use visitor parking under section 17(a) of the declaration. The corporation ticketed the CRV repeatedly. The corporation could point to a pattern of FOB usage from Ms. Boodram's unit that suggested a second person was coming and going, and June 2020 records showing the CRV present 27 out of 30 days. Ms. Boodram produced redacted government ID and mail addressed to the CRV's driver showing a different residential address. Both sides' evidence was, on the Member's reading, inconclusive.
The second holding — the policies issue. PSCC 843 had several visitor-parking practices it called 'policies': an 8-permit-per-month cap, mandatory permit-requesting, specific posting requirements. None of these had ever been adopted as rules under s.58 of the Ontario Act, which requires notice to owners and a 30-day objection window. The corporation argued that 'policies' were a separate category from 'rules' and could be created and enforced by the board without the s.58 process. Vice-Chair Clifton at paragraph 29 rejected this directly: "what the Respondent calls its visitor parking polices are improperly enacted rules of the condominium and, as such, are invalid and unenforceable. The Respondent may repair this situation by seeking to enact such policies properly as rules in accordance with s. 58 of the Act. Until it does so, however, such policies ought not to have been, and hereafter should not be, enforced against the Respondent or any other person."
The Business Judgment Rule was rejected as a workaround. The corporation had argued that the Business Judgment Rule entitled their resident-determination to deference. Vice-Chair Clifton agreed the BJR applies to condominium boards but at paragraph 18 noted the deference does not extend to decisions that are "either unfair or unreasonable." Where a corporation has not defined the criteria it's enforcing, has applied criteria inconsistently, or — worse — appears to have created criteria specifically to justify enforcement against one owner, the BJR doesn't save the decision.
Why this matters in Alberta. Two practical implications. First, on the burden question: Alberta condominium fine notices under CPR s.73.7 must identify a specific bylaw allegedly contravened AND must rest on identifiable contravention facts. Where the corporation's case relies on its own characterization of who-is-or-isn't-a-resident (or who-is-or-isn't-a-tenant, or whose-pet-this-is, or who-owns-this-vehicle), Boodram is direct authority that the corporation bears the burden of proving that characterization. 'It looks like a resident to us' is not the same as 'we have proven this person is a resident.'
Second, on the policies issue: Alberta condominium bylaws are adopted under section 32 of the Condominium Property Act, with strict procedural requirements (special resolution, owner approval, registration). Many corporations have informal 'policies' that have never gone through that process — visitor parking restrictions, key-fob rules, common-element use protocols, fine schedules. The Boodram principle ports cleanly: an Alberta corporation that issues a fine notice citing a 'policy' rather than a registered bylaw has a substantive defect. CPR s.73.7(e) requires the notice to cite the specific bylaw allegedly contravened — and 'policy' isn't 'bylaw.'
The bottom line: a fine notice based on the corporation's assumptions or unenacted policies is two substantive defects in one. Boodram is direct Ontario authority that the burden of proof on factual characterization runs with the enforcer (the corporation), not the owner — and that informal 'policies' don't substitute for properly-enacted bylaws. Run FineCheck on the notice; flag both defect types if they're present.
What the tribunal said
Selected excerpts from the Ontario CAT's reasoning. Full decision on CanLII.
[18] While I agree with the Respondent that the Business Judgment Rule applies to condominium corporations and requires that deference be given to the decisions of a condominium's board of directors, such deference would not be given, as the court states, where it is evident that the decision in question is either unfair or unreasonable. [19] Having reviewed the evidence of both parties, I find that the Respondent's board has not met that standard, and that its determination that the driver of the Honda CRV is a resident of the condominium is not within a range of what is fair or reasonable in these circumstances. No evidence placed before me indicates that the Respondent has taken time to clearly and thoughtfully define the terms of, or establish consistent criteria based on which it will enforce, section 17(a) of its declaration. [20] This is not intended as a finding of fact with respect to whether the driver of the Honda CRV is a guest or resident of the condominium. Based on the evidence presented by the parties, I cannot make that determination. The evidence of both parties is equally inconclusive. In such circumstances, I find that a reasonable person could not conclude one way or the other, nor consider it just or fair to take punitive or enforcement action until further careful and diligent investigation had been conducted. [29] Based on the evidence and submissions of the parties and my analysis set out above, I find that what the Respondent calls its visitor parking polices are improperly enacted rules of the condominium and, as such, are invalid and unenforceable. The Respondent may repair this situation by seeking to enact such policies properly as rules in accordance with s. 58 of the Act. Until it does so, however, such policies ought not to have been, and hereafter should not be, enforced against the Respondent or any other person.
Connects to FineCheck's framework
Jurisdictional note: Ontario CATdecisions are not binding on Alberta's CDRT, but the CDRT will look to other Canadian condo tribunals for guidance under analogous statutory provisions until its own case law develops. The substantial-compliance + prejudice framework used in this decision parallels the test in CDRT Policies and Procedures s.7(b).
Decision date: April 15, 2021 · Citation: 2021 ONCAT 31 · Outcome: partially upheld. FineCheck's commentary is published for research and educational use; not legal advice. Verify any reliance on this decision against the original text.