This case is an example of the sometimes-paradoxical behaviour of certain co-owners. It also illustrates that it is always possible to obtain payment of common expenses by way of a safeguard order. The opponents in this dispute are a co-owner, Geoffrey Stanley (“Stanley”), and his syndicate of co-ownership (“Syndicate”).
In 2019, Stanley institutes proceedings against his Syndicate alleging that the latter has been negligent and for several years has not carried out required work on the façade of the building. He particularly claims that the Syndicate should carry out this work, and this, without him having to contribute financially to it on the grounds that the Syndicate would have neglected to take care of the situation and to constitute a contingency fund as required.
For these reasons, Stanley believes he is entitled not to pay his contribution to the common expenses since January 1, 2021. The Syndicate being in a financially precarious situation seeks, during the course of the proceedings, an order for the payment by Stanley of the accumulated arrears and interest in addition to his future contributions until the merit judgment.
The Superior Court rules in favour of the Syndicate, based on article 1080 of the Civil Code of Quebec (“C.C.Q.”), which is a public order of direction. Indeed, the Honourable Mark Phillips, j.s.c., concludes that Stanley’s refusal to pay his contributions, contrary to articles 135 and following of the Declaration of Co-ownership binding the parties, constitutes a serious and irreparable prejudice in that “there is an increase in indebtedness due to the unilateral cessation, by the debtor, of his performance of successive obligations”. In the opinion of Honourable judge Phillips, there is no need to add other criteria to those set out in article 1080 C.C.Q. ¹ (non-compliance with the declaration of co-ownership and prejudice). The Court explains that the purpose of applications during the proceedings “is to maintain a certain status quo during the proceedings, where the parties are bound by obligations which, by reason of the nature of their relationship, require that the parties continue to comply with them during the proceedings. It is in the interest of preserving the balance to order that these obligations be respected during the proceedings” (our translation).
The Court therefore grants the Syndicate’s requests and orders Stanley to pay the Syndicate all arrears and interest applicable as of the date of the judgment. The Court also declares that Stanley is required to contribute his share of future common expenses and special contributions until judgment is rendered.
This decision is part of a particular line of jurisprudence² that appears to be contrary to some recent ³ decisions rejecting similar claims. It allows syndicates to hope to obtain more quickly the sums due and necessary for the proper functioning of the co-ownership they govern. It will be interesting to see the future jurisprudential application of this decision.
In this simple case, the Syndicate Les Cours Bossuet phase 1 (“Syndicate”) applies to the Court of Quebec in its small claims division to recover the sum of $6,302 representing the difference between the cost of the repairs made by the Syndicate ($11,302.22) and the amount of the insurance deductible ($5,000) which the insurer of the co-owner at fault, Hakim Debbih, (“Debbih”) offers to reimburse.
Considering the application of article 1074.1 C.C.Q., the Court rejects the Syndicate’s request that it not claim insurance indemnity from its insurer. As mentioned, “if the Syndicate chooses not to claim from its insurer, it cannot make the damaging party suffer from its choice (…)”. The Syndicate may decide not to make a claim to its insurer (to avoid increases in the insurance premium), but it cannot do so at the expense of those it has the obligation to protect (understand here: its co-owners). Thus, in this case, the fault of the co-owner being admitted, the Syndicate is only entitled to the amount of the insurance deductible that it should have assumed, that is to say the $5,000 offered by the insurer. The Syndicate must therefore assume the amount of $6,302 which would otherwise have been covered by its insurer and the legal costs incurred by the co-owner.
¹ Understand here: the criteria applicable to applications in the course of proceedings provided for in the Code of Civil Procedure, such as provisional or interlocutory injunctions or safeguard orders.
² Tuli c. Syndicat des copropriétaires Les Jardins de l’Église, 2008 JL. 2167 (QC C.S.), j. Hélène Le Bel. ; Syndicat La Centrale c. 5831 Côte-des-Neiges Inc., 2009 QCCQ 5825 (C.Q.), j. Jacques Paquet.
³ Syndicat de la copropriété 1265 à 1269 rue Amherst, Montréal c. Robertson, 2022 QCCS 3796 (CanLII).