



COURT OF APPEAL FOR ONTARIO

CITATION: White Snow and Sunshine Holdings Inc. v.
    Metropolitan Toronto Condominium Corporation No. 561, 2018 ONCA 196

DATE: 20180227

DOCKET: C64155

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

White Snow and Sunshine Holdings Inc.

Applicant (Appellant)

and

Metropolitan Toronto Condominium Corporation No.
    561

Respondent (Respondent)

Morris Cooper, for the appellant

Joshua Milgrom and Joseph Salmon, for the  respondent

Heard and released orally: February 23, 2018

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated July 28, 2017.

REASONS FOR DECISION

[1]

The appellant corporation, White Snow and Sunshine Holdings Inc. (White
    Snow) owns the only two commercial units in a residential condominium
    building. The condominium corporation is the respondent, Metropolitan Toronto
    Condominium Corporation No. 561.

[2]

White Snow is aggrieved that only owners of condominium dwelling units
    and their guests can use the buildings recreational common elements, including
    a swimming pool, a gymnasium, a library, and a squash court. White Snow wants
    its employees to be able to enjoy those facilities, which its commercial
    condominium fees help to pay for.

[3]

After failed efforts to persuade the condominium board to change the
    rules to allow its employees access to the recreational common elements, White
    Snow brought an application under s. 109(3) of the
Condominium Act
,
    S.O. 1998, c. 19, asking the Superior Court to amend the MTCCs Declaration. White
    Snow argues that the access restriction contained in Article I(7) should be
    removed because O. Reg. 48/1 requires all exclusive-use areas within the
    condominium to be contained in Schedule F to the Declaration, and Schedule F of
    the respondents Declaration does not specify that the recreational common elements
    are for the exclusive use of dwelling unit holders. White Snow argues that,
    because this restriction is not specified in Schedule F, it is inconsistent
    with the
Condominium Act
.

[4]

The application judge dismissed White Snows application. He held that
    the restriction of recreational common elements to dwelling unit holders does
    not have to be listed in Schedule F. Only common elements that are to be used
    by the owners of one or more designated units but not by all owners, as
    provided for in
Condominium Act
, s. 7(2)(f), needs to be listed in
    Schedule F. This would include things such as terraces that are set aside for
    the exclusive use of particular units. In contrast, things such as the
    exclusive use by dwelling unit holders of recreational facilities are provided
    for in s. 7(4)(b), as restrictions with respect to  the use of  common
    elements, and s. 7(4)(b) restrictions do not have to be specified in Schedule
    F. As a result, the Declaration is not inconsistent with the
Condominium
    Act
and does not require amendment.

[5]

White Snow argues in this appeal that the application judge erred in law
    in giving this interpretation to the statutory provisions. It also argues that
    the application judge misdirected himself by using a zoning by-law to interpret
    the statute. The City of Toronto site-specific zoning by-law at issue requires
    recreational space to be provided for residents of the building.

[6]

We would dismiss the appeal relating to the correct interpretation of
    the relevant provisions of the
Condominium Act
, for the reasons of the
    application judge, with which we agree.

[7]

We would also dismiss the appeal relating to the application judges use
    of the zoning by-law. In our view, the application judge did not use that
    zoning by-law to interpret the
Condominium Act
. He used it explain the
    proper interpretation of the impugned Declaration. He committed no error in
    doing so.

[8]

The appeal is dismissed. Costs in the amount of $10,000 inclusive of
    disbursements and applicable taxes are awarded to the respondent.

Doherty J.A.

J. MacFarland J.A.

David M. Paciocco J.A.


