In a recent judgement of the Court of Quebec, Small Claims Division¹, a co-owner who sued his syndicate of co-owners for damages, i.e. for repayment of sums paid to the syndicate as a penalty for late payment of his condo fees, and for fees charged to the co-owner when his new tenant was moving in. He sues at the same time two administrators of the syndicate for the sum of $3,888.90 for non-specified damages. Nevertheless, he saw his request rejected by the Court because, at the basis, his request seeks the annulment of the regulations of the co-ownership, which is not within the jurisdiction of the Small Claims Division of the Court of Quebec.
Summary of the facts found by the Court
The applicant co-owner has owned, for many years, a unit in a co-ownership comprising forty-eight units. The co-owner is a holding company that owns the unit, which has been leased to a succession of tenants over the years.
In 2012, the building’s co-owners’ assembly adopted certain amendments to the deed of co-ownership. The first one has the effect of creating a system of penalties against those co-owners who pay their condo fees too late. A second one sets at a $1,000 the fee that must be paid by the co-owners who rent their units when a new tenant is moving in.
In March 2012, the applicant co-owner has some delays in the payment of his condo fees, and has therefore accumulated penalties totaling $110, which he pays to the syndicate. In July 2013, the applicant co-owner pays a $1,000 to the syndicate for covering the fees payable under the deed of co-ownership when his new tenant is moving in.
The Court finds that these fees and penalties were required by the syndicate pursuant to the amendments to the deed of co-ownership adopted by the assembly of the co-owners.
The evidence accepted by the Court
The Court’s judge heard the testimony and documentary evidence of the administrators of the co-ownership, as well as the one of the co-owner. The syndicate of the co-owners argues that the fees and penalties are justified and reasonable. The administrators of the syndicate invoke that the building occupies a prime location, and that it is the will of a majority of co-owners to preserve and enhance the residential nature of the co-ownership.
For his part, the co-owner applicant argues the opposite, that is to say, that these fees cannot be justified, and that they are unreasonable.
The analysis by the Court
After hearing the testimony and reading the documents of the parties involved, the Court concludes that the applicant co-owner’s request is inadmissible before the Small Claims Division of the Court of Quebec. The Court believes that to accept that the co-owner has a real claim against the syndicate of co-ownership would be tantamount to saying that the provisions of the co-ownership’s deed, on which the syndicate bases itself, are null and void. However, the Court reminds the applicant co-owner that Section 1103 of the Civil Code of Quebec allows him to apply to the Court to annul the decision of the co-owners’ assembly of the syndicate. Section 1103 of the Civil Code reads as follows:
1103. Any co-owner may apply to the court to annul a decision of the general meeting if the decision is biased, if it was taken with intent to injure the co-owners or in contempt of their rights, or if an error was made in counting the votes. The action is forfeited unless instituted within 60 days after the meeting. If the action is futile or vexatious, the court may condemn the plaintiff to pay damages.
However, the judge stipulates that the "Court" referred to in Section 1103 of the C.c.Q, is not the Quebec Court, Small Claims Division, but rather the Superior Court. The judge stipulates that under Sections 31 and 33 of the Civil Procedure Code of Quebec, the Superior Court is the court of law in the province in the first instance and where no express provision of the law empowers another provincial court. Sections 31 and 33 of the Civil Procedure Code read as follows:
31. The Superior Court is the court of original general jurisdiction; it hears in first instance every suit not assigned exclusively to another court by a specific provision of law.
33. Excepting the Court of Appeal, the courts within the jurisdiction of the Parliament of Quebec, and bodies politic, legal persons established in the public interest or for a private interest within Quebec are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this article is excluded by some provision of a general or special law.
Consequently, the Court indicates that it is not the competent court to judge on the claim of the co-owner, as it belongs to the Superior Court to decide whether the decisions of the assembly which adopted the changes to the deed of co-ownership, are null and void. However, the co-owner had to file an appeal in this regard before the Superior Court within sixty days from the date of the decision, which he did not do. The Court therefore held that the request of the co-owner should be rejected on those grounds.
As for the claim against the administrators of the syndicate, the Court held that it was unfounded. It reminded the applicant co-owner that administrators are agents of the syndicate, and that there is no evidence that they have committed a misconduct or abuse in the exercise of their functions. The Court commented that although the applicant co-owner and the administrators could have opposing positions on the application of the provisions of the deed of co-ownership, the fact of being in disagreement does not amount to an abuse of power on the part of the administrators.
For all these reasons, the Court rejected the request of the co-owner, both against the syndicate and the administrators, and it ordered the co-owner to repay the syndicate’s court costs of $174.
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