Parking Policy Was Unenforceable: Key Lessons!

Key Lessons from a Tribunal Decision

In a recent case, Tartakovsky-Guilels v. York Region Condominium Corporation No. 829, a tribunal ruled that a condominium corporation’s visitor parking policy was unenforceable because it was not properly enacted as a formal rule. This decision sheds light on the differences between policies and rules in the condominium world and offers valuable insights for boards looking to govern effectively.

The Case: Parking Policy vs. Rules

The condominium corporation’s Declaration stated that parking spaces on the common elements were reserved exclusively for visitors. To enforce this, the corporation implemented a parking policy—likely passed by a board resolution—that required visitors’ vehicles to be registered with the corporation. The policy included procedures and penalties, including potential ticketing or towing for non-compliance.

However, the condominium corporation attempted to enforce this policy against an owner, who had not registered their visitor’s vehicle. The vehicle was ticketed, and the owner challenged the enforcement.

Tribunal’s Ruling: Policies Are Not the Same as Rules

The tribunal found that the corporation’s parking policy was not enforceable because it had not been passed as a formal rule in accordance with Section 58 of the Condominium Act. The tribunal rejected the corporation’s argument that informal policies could be equated with rules and imposed the same level of authority.

The key point made by the tribunal was that while a corporation may adopt rules governing the use of visitor parking, it is not permitted to impose such restrictions through a policy. The Condominium Act requires that these types of rules be passed in compliance with formal procedures, specifically Section 58, which provides clear guidelines for creating enforceable rules.

What Does This Mean for Condo Corporations?

This decision prompts important questions about the role of policies in condominium governance: Can policies be enforceable? Are they necessary?

In many cases, policies can be useful tools for outlining procedures and principles that guide the actions of the condominium corporation. However, most policies are not directly enforceable against owners unless they are backed by formal rules or are intended to clarify existing obligations in the governing documents (Declaration, By-laws, or Rules).

In general, policies provide guidance for the corporation and help ensure consistency in decision-making. They are often implemented through board resolutions and may be shared with owners for transparency. However, policies are not typically binding on owners in the same way that rules are. If a corporation fails to follow its own policy, owners may argue that the corporation is not meeting its fiduciary or statutory obligations, but this does not automatically create an enforceable legal duty.

Policies vs. Rules: What’s the Difference?

Policies are typically created by board resolution and offer guidance on how the corporation will handle specific situations. They may not be enforceable against owners unless they clarify or explain an existing rule or provision in the governing documents.
Rules, on the other hand, are passed in accordance with Section 58 of the Condominium Act. These are enforceable and can impose specific dos and don’ts on owners.

For example, some policies that make sense in a condominium setting and may be legally required include:

Workplace Violence and Harassment Policies
Human Rights Policies
Customer Service Policies (under the Accessibility for Ontarians with Disabilities Act)
Privacy Policies

In some cases, a policy may provide clarity around an existing provision in the governing documents, which could make it enforceable in practice. For instance, if a policy explains how a rule will be interpreted or enforced, it may support the enforcement of that rule.

The Takeaway: Use Rules, Not Policies, to Create New Obligations

The Tartakovsky-Guilels case highlights a critical lesson: if a corporation wants to create new obligations for owners—such as additional restrictions on visitor parking—it is safest to pass a formal rule rather than rely on an informal policy. Policies can be helpful for guiding the corporation’s internal operations, but when it comes to imposing enforceable duties on owners, the proper legal process must be followed.

To avoid legal challenges and potential enforcement issues, corporations should ensure that any new obligations are properly enacted as rules or by-laws. This will ensure compliance with the Condominium Act and protect the corporation from disputes over enforceability.