Stop building apartment complex, court orders

A Whitehorse company has been ordered by the court to stop construction of an apartment building in the Logan subdivision.

A Whitehorse company has been ordered by the court to stop construction of an apartment building in the Logan subdivision.

Justice Ron Veale of the Yukon Supreme Court agreed Tuesday with the Whitehorse Condominium Corporation No. 95 that a permanent halt to construction was warranted.

The condominium corporation argued 37724 Yukon Inc. and Brian Little began building the multi-unit apartment complex on land under the control of the condominium owners, without securing the required approval from each owner.

Veale agreed.

He went on to order Little and his company to pay the corporation’s legal fees, after finding that Little’s behaviour in the whole affair was reprehensible.

It didn’t matter that Little and 37724 Yukon Inc. had a large share of ownership in the Condominium Corporation, because it’s clear a change in plans for the condominium property required the approval of all the owners, Veale ruled.

The condominium development in the Logan subdivision is comprised of single-family, stand-alone units.

The plan for the condominium describes the site where the apartment building is being constructed as vacant land.

In his opening remarks to the 50-page decision delivered Tuesday, Veale notes this is the first time the court has had to interpret the Yukon’s Condominium Act.

“In recent years, condominium construction and condominium ownership have become popular in Whitehorse,” Veale points out in the decision.

“What follows is a cautionary tale for condo developers, condo corporations and condo owners.”

Construction of the apartment building began in July 2012, and the condo corporation filed its application to halt construction in late November, arguing that 37724 Yukon did not have the required permission of the individual owners.

The company, on the other hand, argued planning for the apartment building began back in 2010 with the full knowledge of the board of directors representing the condominium corporation.

To allow for the project, the company pointed out, it had actually relocated a building at the request of the corporation’s board.

Shortly after the corporation filed its request for a permanent halt to construction, Little responded with a request to have the court dismantle the corporation and its board of directors.

The corporation, the company argued, shouldn’t be allowed to bring forward such an action after having participated in the planning as much as two years ago, and meeting with the company about the project as recently as last spring.

Veale, however, ruled that the board of directors cannot assert any authority over the individual rights of the condominium owners.

That the company spoke with the board of directors does not remove the requirement to get the approval from each and every condo owner for changes in plans for the condominium site, he pointed out.

Veale also found that approval for the project expressed last spring by the newly appointed president of the condominium corporation appeared to arise out of pressure tactics Little applied on the president of the corporation.

Veale’s decision also points to a letter sent in November to condominium president Helen Booth. It indicated she and other board members could be held financially and individually responsible for losses incurred by the company.

The letter, he finds, was clearly meant to intimidate Booth, and cannot be condoned by the court.

Veale pointed out that as the new president of the corporation last spring, Booth was not familiar with all the rules and regulations governing the condominium corporation when Little approached her to sign certain documents.

She was unaware at that point of the requirement to obtain consent from all the condo owners before plans for the site could be changed, Veale says in his decision.

He found there was no evidence indicating individual owners were aware of the development discussions between the company and the board back in 2010.

There are no grounds to support the company’s request to dismantle the corporation and its board, says Veale.

He said the request was merely an attempt to remove the corporation so that subdivision of the condominium property could occur to allow for the continued construction of the apartment building.

In his decision, Veale notes there was a delay in applying for the court injunction, but that in itself does not invalidate the condominium corporation’s case.

Furthermore, Veale points out, concerns about the project proceeding without the required approval from individual owners were conveyed to the company in August 2012.

The decision says the 37724 Yukon Inc. is not allowed to use the vacant land for any buildings or construction without the approval of the individual condo owners.

Little and his lawyer, Gary Whittle, declined comment this morning.

Jim Tucker, the lawyer who represented the condo owners, is out of town.

Tucker did indicate during last month’s hearing that if the condominium corporation was successful, it may return to court for a further order requiring 37724 Yukon to remove the partially completed apartment building.