Simcoe Condominium Corporation No. 104 v. Leary
2023 ONCAT 52 · March 30, 2023 · Notice voided
ONCAT ordered Simcoe Condominium Corporation No. 104 to stop enforcing two specific parts of its parking rule (the prohibitions on commercial vehicles and on vehicle signage/advertising) — not just against the Leary unit, but against any owner. Member Aylwin held that a corporation's rule must satisfy the substantive requirements of s.58(1) of the Ontario Act: the rule must promote the safety, security, or welfare of owners and the property, OR prevent unreasonable interference with the use and enjoyment of units and common elements. A rule justified only by 'longstanding existence' and 'aesthetic consistency' does not meet these requirements. Critical authority for the proposition that the tribunal will void rules, not just individual enforcement decisions, where the rule itself fails the s.58(1) test.
Why this matters for Alberta owners
TL;DR: When the rule your corporation is enforcing against you isn't just badly applied but is fundamentally invalid, the tribunal can strike it down — across the board, not just against you. Member Aylwin in SCC 104 v. Leary ordered the corporation to STOP enforcing two specific parts of its parking rule entirely. The rule prohibited commercial vehicles and vehicle signage/advertising, justified only by 'longstanding existence' and 'aesthetic consistency.' The Member held that s.58(1) of the Ontario Act requires rules to be tied to safety, security, welfare of residents OR prevention of unreasonable interference — and aesthetic preference alone doesn't meet that test. The Alberta translation: bylaws and rules adopted by Alberta corporations under section 32 of the Condominium Property Act must serve substantive purposes; rules that exist only because they've always existed are vulnerable to challenge.
The facts. Brandy Leary owned a unit at Simcoe Condominium Corporation No. 104, part of a multi-phase condominium community organized around a golf course. She leased the unit to Theodore Augustyniak and Antonia Spriteri. Mr. Augustyniak drove a truck for work — equipment in the truck for his job, signs and advertising affixed to the vehicle. SCC 104's Rule 4 prohibited (a) commercial vehicles on the property and (b) vehicles with signage. The corporation tried to enforce the rule against the truck. Ms. Leary and the Intervenors challenged the rule itself.
What the tribunal held. Member Aylwin focused the analysis on the s.58(1) test for valid rules under the Ontario Act. Two key holdings:
Holding 2 — what does NOT qualify. At paragraph 17, the Member acknowledged the rule may be longstanding and the community's appearance may be important to some owners, but added: "the length of time a rule is in place and its importance to some owners are not factors that fall within s. 58(1) of the Act." Tradition is not a justification. Owner preferences for aesthetic consistency are not a justification. The rule has to satisfy the substantive purposes the statute permits.
The corporation's actual justification fails. At paragraph 16, SCC 104 stated the purpose of the rule was to promote consistency in the community's appearance and safeguard a 'park like setting' aesthetic. The Member acknowledged this speaks to the character of the neighbourhood — "This is an argument that speaks to the character of the neighbourhood and is a valid consideration. However, this is only one factor to be considered and does not outweigh all other factors." Translation: aesthetics is in the mix, but it cannot be the sole justification.
The road map for the corporation. At paragraph 19, the Member gave SCC 104 a path forward: "SCC 104 may choose to amend the Rule. There may well be rules that set out prohibitions regarding advertising on vehicles and the types of vehicles that can be parked on condominium property which are appropriate under s. 58(1) of the Act." Notice the implication: there's no constitutional bar to regulating commercial vehicles — there IS a bar to regulating them on aesthetics-alone grounds.
Why this matters in Alberta. Section 32 of the Condominium Property Act and the bylaw-making framework in the Condominium Property Regulation impose similar substantive requirements. Bylaws can address safety, security, common-property protection, and the orderly management of the condominium. They cannot impose arbitrary restrictions justified only by tradition or aesthetic preference. The Leary framework — identify the substantive purpose the rule serves, weigh that against the factors at paragraph 15, reject justification-by-tradition — ports directly.
This matters for Alberta fine notices in two ways. First, CPR s.73.7(e) requires the notice to cite the specific bylaw allegedly contravened. If the cited bylaw is itself invalid under the substantive Alberta-equivalent test, the enforcement collapses regardless of how procedurally compliant the notice is. The bylaw's validity is a logically prior question to the notice's compliance.
Second, the broader tribunal-power to invalidate bylaws (not just individual enforcement decisions) is real under section 35 of the Condominium Property Act. The CDRT can — and based on Leary's reasoning, likely will — strike down bylaws or specific portions of bylaws where they fail the substantive test. This is a more powerful remedy than just voiding the notice against you; it removes the bylaw from the corporation's enforcement arsenal entirely.
The bottom line: tribunals have the power to strike down rules and bylaws, not just to void individual enforcement decisions. Where a corporation is enforcing an aesthetic-only or tradition-only rule against you, Member Aylwin's Leary decision is direct authority that the rule itself can be invalidated. Run FineCheck on the notice; consider whether the cited bylaw can withstand the Leary substantive test; if it can't, plead bylaw-invalidity as your primary defence.
What the tribunal said
Selected excerpts from the Ontario CAT's reasoning. Full decision on CanLII.
[15] In considering whether an interference is unreasonable (and thus would require a rule to prevent such interference) some of the factors that may be considered are the severity of the interference, the character of the neighbourhood, the impact of the interference, and whether or not the community should be expected to tolerate the interference under the circumstances. [16] In this case, SCC 104 has clearly stated the purpose of the Rule is to promote 'consistency' in the appearance of the community, and to safeguard a particular type of aesthetic, i.e., a 'park like setting.' This is an argument that speaks to the character of the neighbourhood and is a valid consideration. However, this is only one factor to be considered and does not outweigh all other factors. [17] I acknowledge that the Rule may be a longstanding one and that the 'look' of the community may be important for some owners, but the length of time a rule is in place and its importance to some owners are not factors that fall within s. 58(1) of the Act. [19] Finally, I note that SCC 104 may choose to amend the Rule. There may well be rules that set out prohibitions regarding advertising on vehicles and the types of vehicles that can be parked on condominium property which are appropriate under s. 58(1) of the Act. However, should SCC 104 choose to do so, I encourage them to be cognizant of the purposes for which rules can be made.
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: March 30, 2023 · Citation: 2023 ONCAT 52 · 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.