Only bylaws, not rules, can have fines attached for non-compliance
Q Five years ago, the owners in our condominium complex approved a new set of bylaws. About two years ago, the board told the owners at the annual general meeting that amendments to the bylaws were needed to address some outstanding issues. With COVID shutting everything down last year, the board failed to move forward with the changes it wanted in the bylaws. Therefore, last August, instead of moving forward with amendments to the bylaws, the board passed a set of rules to supplement the bylaws. The rules were approved by the board, not the owners. The rules state that a fine can be levied against an owner who contravenes the rules. I have been fined several times in the past two months for breaching some of the rules. Is this legal? Please help!
A The short answer to your question is: No, this is not legal. The corporation cannot levy any monetary sanctions for breach of a board policy or rule. The Condominium Property Act is clear. Section 35 states a corporation may by bylaw establish monetary or other sanctions (fines) that may be imposed on owners, tenants and occupants who fail to comply. A fine imposed under a bylaw must not exceed the amount prescribed by the Condominium Property Regulation.
The corporation must have the authority under the bylaws to levy fines and the fine amount must be set out in the bylaws. The fine amount cannot exceed the prescribed amounts under law. With respect to the violation of any of the rules, the Condominium Property Regulation provides that no monetary sanction (i.e., fine) may be imposed for a failure to comply with a rule. It is also important to remember the direction from Master Smart in his decision in Condominium Corporation No. 042 5636 v. Chevillard, 2012 ABQB 131, where he held that “a board of the Condominium Corporation cannot establish policies, rules or guidelines that contradict or have the effect of amending an existing bylaw. Clearly that must be done through an amendment to the bylaws despite language in the bylaws which purport to give policies the force of a bylaw.” Helpful Hint: A board may, by resolution, make, amend or repeal rules respecting procedures used in the administration of the corporation or the real and personal property of the corporation, the common property and managed property. The rules must be reasonable and consistent with the Condominium Property Act, the regulations and the bylaws. The rules cannot restrict the uses of units. And at least 30 days before a new rule is to come into effect, the board must provide written notice. Even though rules do not carry the same weight as bylaws, owners and occupants must follow the rules.
Roberto Noce, Q.C. is a partner with Miller Thomson LLP in both the Edmonton and Calgary offices. He welcomes your questions at albertacondolaw@millerthomson. com. Answers are not intended as legal opinions; readers are cautioned not to act on the information provided without seeking legal advice on their unique circumstances. Follow Noce on Twitter at @Robertnoce.