York Condominium Corporation No. 50 v. Overholt
2023 ONCAT 123 · August 31, 2023 · Notice voided
ONCAT restored a unit owner's legacy smoking status after York Condominium Corporation No. 50 tried to revoke it without following its own rule's revocation procedure or properly investigating the underlying complaint. Member Cook held that the corporation had lost track of the legacy grant entirely (its own lawyer wrote that 'there is no record of legacy status') and then compounded that error by issuing threatening letters, billing for the cost of those letters, and registering a lien — all without the prior written notice the rule itself required. The case is direct authority that vested or grandfathered rights cannot be revoked by board-letter alone; the rule's own revocation procedure must be followed, and the underlying conduct must be properly investigated.
Why this matters for Alberta owners
TL;DR: A 'legacy' or grandfathered right granted by your corporation isn't revocable by board letter alone. The rule that created the right almost always specifies a revocation procedure — written notice, opportunity to respond, proper investigation, acting reasonably. Member Cook in Overholt restored the owner's legacy smoking status because the corporation had skipped that procedure entirely and then compounded the error with threatening lawyer letters, chargebacks, and a lien. The Alberta translation: if your corporation has granted you (or a previous owner of your unit) a grandfathered right under any bylaw — smoking, pets, parking, occupancy — that right has a specific revocation procedure baked into the rule that created it. A corporation that tries to revoke without following the procedure has a substantive defect that voids any enforcement.
The facts. York Condominium Corporation No. 50 adopted a smoke-free rule in July 2018 with a legacy carve-out for existing smokers — they could continue smoking subject to specific conditions including a 'nuisance' override that allowed the board to revoke the legacy 'with written notice ... acting reasonably.' Tammie Overholt and her sons had been granted legacy status under this carve-out. Years later, after one resident complained about smoke odours, the corporation sent the Overholts a compliance letter on August 26, 2022 from the manager, followed by a September 21, 2022 letter from the corporation's lawyer demanding compliance, billing the Overholts for the cost of the letter, and warning of lien registration. The lawyer's letter notably said the corporation had 'no record of legacy status' — meaning the corporation had lost track of the grant they themselves had issued.
What the tribunal held — three layered findings. First, the legacy grant was still in effect. At paragraph 18: "The board has never provided written notice to Ms. Overholt of an intention to revoke the legacy status. It follows that Ms. Overholt and her sons continue to have legacy status." Notice the structure: the rule itself required written notice of intent to revoke. No written notice = no revocation. The corporation's failure to follow its own rule meant the right hadn't actually been revoked.
Third, the compounding effect of the unreasonable conduct. At paragraph 20: "These problems were then compounded by the threatening letter from the lawyer less than a month later. The letter contained misleading and false information about the underlying complaints. The problems were further compounded by the demand for payment of the costs of preparing the lawyer's letter followed very quickly with placing a lien and demanding more money to cover the costs associated with that activity." The unreasonable revocation became unreasonable enforcement became an unreasonable chargeback chain — each step amplifying the defect.
Why this matters in Alberta. Many Alberta corporations granted legacy or grandfathered rights when new bylaws were adopted — particularly when smoking restrictions were tightened in the 2010s, when pet rules were standardized, when short-term-rental restrictions came in. Those legacy grants typically have explicit revocation procedures in the original rule or bylaw text. CPR s.73.7(e) requires any Proposed Sanction notice to cite the specific bylaw allegedly contravened — and where the alleged breach IS the loss of legacy status, the corporation has to show the legacy was properly revoked first. Overholt establishes the analytical structure: (1) what does the legacy rule's own revocation procedure require; (2) did the corporation follow it; (3) did the corporation act reasonably in the underlying judgment.
The Bridglall connection. The investigation-duty piece of Overholt parallels Bridglall (see /tribunal-decisions/2022-oncat-132) — the corporation cannot rest enforcement on unverified complaints. The two cases together establish a robust principle: corporations enforcing against owners (whether for legacy revocation, bylaw breach, or nuisance) must investigate before acting, and 'we got a complaint' is not the same as 'we have proof.'
The bottom line: legacy rights have specific revocation procedures embedded in the rules that created them. Corporations that try to short-circuit those procedures by issuing direct compliance letters, threatening lawyer letters, and chargebacks — without first complying with the revocation procedure itself — produce voidable enforcement. Overholt is direct Ontario authority. Run FineCheck on the notice; pull the original legacy grant; map the corporation's actions against the revocation procedure; raise any mismatch as a substantive defect.
What the tribunal said
Selected excerpts from the Ontario CAT's reasoning. Full decision on CanLII.
[17] The smoke free environment rule does allow the board to revoke legacy status, with written notice, if smoking in a unit is 'deemed to be a nuisance by the Board or manager in their discretion, acting reasonably.' [18] The board has never provided written notice to Ms. Overholt of an intention to revoke the legacy status. It follows that Ms. Overholt and her sons continue to have legacy status. [19] Even if either the August 26 or the September 21 letters are taken as written notice of an intent to remove the legacy status, the rule requires that YCC 50 must 'act reasonably'. I find that YCC 50 did not act reasonably. First, the allegations from the one resident who complained were not investigated. The person 'thought' that smoke odours were coming from the unit, but this was not verified. The first step should have been to investigate the source of the odours and not to assume that unverified allegations were true. [20] These problems were then compounded by the threatening letter from the lawyer less than a month later. The letter contained misleading and false information about the underlying complaints. The problems were further compounded by the demand for payment of the costs of preparing the lawyer's letter followed very quickly with placing a lien and demanding more money to cover the costs associated with that activity.
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: August 31, 2023 · Citation: 2023 ONCAT 123 · Outcome: notice voided. FineCheck's commentary is published for research and educational use; not legal advice. Verify any reliance on this decision against the original text.