Executive Summary: Key Legal and Evidentiary Issues

• The dispute centers on whether the phrase "single-family residence" in the condominium's Declaration prohibits owners from housing non-family occupants while continuing to reside in their own units.
   
• Affidavit evidence from board members described both respondents' long-running practices of taking in non-family occupants, spanning several years in each case.
   
• Justice Roy applied a reasonableness standard in assessing the Condominium Corporation's interpretation of its own Declaration and By-laws.
   
• Ontario condominium jurisprudence on the meaning of "single-family" and "one-family residence" informed the court's reasoning, despite differing factual backgrounds.
   
• Neither the Declaration nor the By-laws contained any provision authorizing the fines the Corporation had threatened to impose on the respondents.
   
• Costs were ultimately awarded against both respondents after the court found their occupancy arrangements breached the Declaration.
   

Facts of the case

Westmorland County Condominium Corporation No. 85 is a condominium corporation incorporated under New Brunswick's Condominium Property Act, comprising 36 units spread across 17 buildings in Moncton. The Corporation applied for a determination of whether its Declaration permitted two unit owners, Caroll Forde and Donald Albert, to rent or lease portions of their units to non-family members while continuing to reside there themselves, and for an order prohibiting the practice if it was not permitted. Forde, who bought her unit in July 2021, hosted roughly 30 Ukrainians between June 2022 and March 2024 for periods ranging from about two weeks to six months, and began taking in foreign students from countries including Haïti, Ghana, and Bangladesh starting around May 2024. Albert, who has lived in his unit since July 2013, took in a university professor as a "roomer" from September to April each year beginning in 2014, later describing the same arrangement as a "friend" or "guest" staying with him rather than renting from him. Both respondents confirmed these arrangements to John Pearson, the Corporation's president, and Paul Mazerolle, its treasurer, and both were asked to stop. The issue went unresolved at board meetings in October and November 2024, leading to a special general meeting on March 31, 2025, where a motion passed authorizing mediation and, as a last resort, litigation. A fire prevention officer who inspected Forde's basement in July 2025 found a renovated bedroom lacking adequate window egress, meaning the space did not meet code for use as sleeping quarters. Pearson also warned the respondents that fines of $800 per month would be applied retroactively to November 17, 2025, if a judgment against them was granted and the rentals continued, though the court later noted no fining provision existed in the governing documents. The Corporation filed its application on August 11, 2025, and the matter proceeded to a hearing on February 19, 2026.

Policy and legislative provisions at issue

Article IV(1)(a) of the Declaration states that each unit "shall be occupied and used only for residential purposes, as a single family residence, and for no other purpose," subject to an exception for the Declarant's model and display units. The Corporation argued this language barred owners from renting or leasing while still residing in a unit, since doing so meant the unit was no longer occupied as a single-family residence. The respondents pointed to Article V of the Declaration, which permits leasing subject to conditions, including notice to the Corporation, a minimum one-year lease term, and a signed tenant covenant, and to Article XII, clause (f) of the By-laws, which allows up to two additional occupants provided any charges are not commercial or profit-driven. They also relied on Article VII's insurance provisions, noting the Corporation had refused their requests to review the master insurance policy. Sections 23 and 32(5) of the Condominium Property Act require unit owners to comply with the Declaration and By-laws and require the By-laws to remain consistent with the Act and the Declaration. On costs, Rule 59 of the New Brunswick Rules of Court provides that costs normally follow the cause, while the Charter and the New Brunswick Official Languages Act guarantee the right to proceed in English or French in any provincial court matter.

Reasoning and analysis

Justice Roy adopted a reasonableness standard for reviewing the Corporation's interpretation of its own Declaration, drawing on Ontario authorities including Kapoor v Toronto Standard Condominium Corp No 2450 and Cottage Advisors of Canada Inc v Prince Edward Vacant Land Condominium Corp No 10, both of which held that a condominium board's interpretation of its governing documents is owed deference so long as it is not unreasonable. Applying that framework, the court found the Corporation's reading of "single-family residence" consistent with jurisprudence such as Nipissing Condominium Corp No 4 v Kilfoyl, where a one-family residence was described as involving more than shared short-term sleeping quarters on a rental basis, and Ottawa-Carleton Standard Condominium Corp No 961 v Mezies, which defined "family" as a social unit of parents and children or other relatives living together. The judge rejected the respondents' argument that Article XII(f) of the By-laws contradicted the Declaration, reasoning that the Corporation's interpretation focused on the nature of the unit's use rather than the number of occupants, and that By-laws must in any event remain consistent with the Declaration under the Act. He also dismissed Forde's characterization of the application as a vendetta, finding instead that the Corporation's board had acted in line with its duty to enforce compliance and had followed through on the mediation-then-litigation path authorized by its March 2025 resolution. On the facts, both respondents' arrangements were found to breach the Declaration: Forde's hosting of Ukrainians and foreign students, corroborated by Pearson and Mazerolle, and Albert's eight-month annual arrangement with the professor, which the court described as systematic, of substantial duration, and involving exclusive possession during Albert's winters in Mexico. Albert's relabeling of the professor as a "friend" or "guest" did not change this conclusion, nor did his absence from the unit during winter months affect his status as continuing to reside there. The court further noted Albert had not complied with Article V's leasing requirements, including delivery of a signed tenant covenant to the Corporation.

Ruling and overall outcome

Justice Roy ruled that the Declaration does not permit the respondents' units to be rented or leased to non-family members while the respondents continue to reside in them, and ordered both Forde and Albert to cease this practice and refrain from renting or leasing to non-family members while continuing to live in their units. On costs, the court rejected the Applicant's submission that Albert's decision to proceed in French had caused an unwarranted adjournment, calling that argument unfounded and giving it no weight in the costs assessment. Applying the general rule that costs follow the cause, and noting the Corporation's full success along with Albert's late filing of pre-hearing submissions, the court awarded the Condominium Corporation costs of $1,500 from Forde and a separate $1,500 from Albert.