The Plaintiff homeowners (the Homeowners) purchased a condominium in late 2019 which they intended to renovate before moving in. However, the Defendant Condominium Corporation (the Condominium) imposed a temporary moratorium on construction due to the COVID-19 pandemic, delaying the Homeowners' renovations.

The Homeowners applied for Summary Judgment, pursuant to Rule 7.3, arguing that there was no defence to the Plaintiffs’ claim that the Board engaged in improper conduct, as set out under Section 67 of the Condominium Property Act, RSA 2000, c C-22 (the Act). The Condominium cross-applied for Summary Dismissal, arguing that it was objectively reasonable that the Condominium protect the health and safety of the residents by placing a moratorium on construction activities until the COVID-19 pandemic improved. The Condominium took the position that the Board did not act in a manner that was oppressive or unfairly prejudicial, or that unfairly disregarded the interests of the Homeowners under Section 67 of the Act.

As explained in Leeson v Condominium Plan No 9925923, 2014 ABQB 20, the purpose of the oppression remedy in Section 67 of the Act is to protect the objectively reasonable expectations of an interested party from oppressive or unfairly prejudicial treatment. The courts defer to decisions of condominium boards. The decision is presumed to be reasonable until proved otherwise. Applications Judge Birkett noted that the reasonable expectations, as expressed by the Homeowners, invited an analysis of these three questions: (i) did the Board act under the powers and authority afforded to them?; (ii) did the Board make its decisions based on the facts and information available to it in a non-arbitrary manner?; (iii) were the Homeowners treated in the same regard as all other owners?

Applications Judge Birkett found that the Board acted under the powers and authority afforded to them. The Condominium had statutory authority to make decisions regarding construction in the condominium building. Given the local, provincial, and federal health orders and mandates to manage the unprecedented COVID-19 pandemic, the Condominium had the authority to issue a temporary moratorium on new construction as a means of protecting the health and well-being of the owners. Implementation of the temporary moratorium on new construction was not ultra vires and not improper conduct as contemplated by Section 67 of the Act.

The Board made its decisions based on the facts and information available to it. It was reasonable to consider the general restrictions that the public was made aware of during the pandemic as a basis for placing a moratorium on new construction, including the Homeowners’ renovations.

Lastly, Applications Judge Birkett held the Homeowners were uniquely affected by the temporary moratorium on construction as they were the only owners with plans to renovate their unit before occupancy at the time. However, this did not mean that the Homeowners were singled out and held against a standard that applied to no one else in the building. The steps taken by the Board in the face of the pandemic did not indicate preferential treatment afforded to the other owners over that of the Homeowners.

Ultimately, it was held that there was no merit to the Homeowners’ claim that the Condominium engaged in improper conduct as set out in Section 67 of the Act. The Application by the Condominium for Summary Dismissal of the Homeowners’ Claim was granted. The Application by the Homeowners for Summary Judgment was dismissed.