An Ancaster condo owner's tribunal loss unwound the week her sale was set to close

The situation

The fear Cristina called us with was not abstract. If the compliance order against her unit was not resolved, cleared, or at least explained to the buyer's satisfaction within days, the sale scheduled to close that same week would fall through, and she would be left carrying two properties, a bridge loan she had already arranged around the assumption of a clean closing, and a buyer with every right to walk away and keep her deposit.

Cristina, a specialist physician, and her spouse Faisal, a surgeon, had bought a large unit in a condominium building in Ancaster several years earlier, planning to use it partly as their own residence and partly, for a period, as a rental while their primary home went through a lengthy renovation. During that rental period, their tenant, Bilal, had made unauthorized changes to the unit's balcony enclosure without informing either the property manager Cristina had hired or Cristina herself, changes the condominium corporation later flagged as a bylaw violation once Bilal moved out and Cristina relisted the unit for sale the following spring.

The condominium corporation brought the matter before a specialized tribunal that handles disputes between condo corporations and individual owners. The tribunal found against Cristina, ruling that she bore responsibility for the unauthorized enclosure regardless of who had actually made the changes, and ordered her to restore the balcony to its original condition entirely at her own cost, with a compliance deadline that fell squarely in the middle of her closing week, timed almost precisely to the day the buyer's own conditions were set to be waived.

The dispute value, once the restoration cost, the holdback amounts her lawyer negotiated with the buyer's side, and the real risk of the entire sale collapsing were all added together, reached well into seven figures. Cristina had little quarrel with the idea that some restoration might ultimately be owed. What alarmed her was the tribunal's reasoning, which she felt had barely engaged with the evidence she had put forward about the tenant's role and her own lack of knowledge, and the timing of the order, which threatened to cost her far more than the balcony itself was ever worth.

What the review found

An appeal from this kind of tribunal decision does not simply relitigate the facts a second time in a different room. A reviewing court asks a narrower, more technical question: how much deference does the tribunal's original decision deserve, and did the tribunal apply the right approach in reaching it in the first place. Some tribunal findings, particularly ones grounded in the specialized expertise the tribunal was created to apply, receive significant deference from a reviewing court. Others, especially where a tribunal has stepped outside that expertise or applied the wrong legal approach altogether, receive much less, and can be revisited far more closely.

Our argument to the Divisional Court was that the tribunal had been owed less deference on the central issue than it had effectively given itself. The tribunal's decision treated the question of who was responsible for the balcony changes as a straightforward factual finding, when in reality it turned on a legal question the tribunal never squarely addressed: whether an owner can be held responsible for a tenant's unauthorized alterations without any finding that the owner knew, or reasonably ought to have known, about them. That legal question was not one the tribunal's specialized fact-finding role was designed to answer without closer scrutiny from a court.

The review also examined closely how the tribunal had handled Cristina's evidence about the tenancy. The tribunal's written reasons referred to the tenant only in passing and did not explain why evidence showing Cristina had neither approved nor been informed of the enclosure was effectively set aside. A reviewing court does not need to agree with every factual conclusion a tribunal reaches, and rarely substitutes its own view of disputed facts, but it does expect the tribunal's reasons to show that it actually grappled with the evidence before it, particularly where that evidence goes to the very heart of who should bear responsibility for the cost.

The court ultimately agreed that the tribunal's decision was owed less deference on the responsibility question specifically, because it turned on a legal standard rather than pure fact-finding, and because the tribunal's reasons did not adequately address the tenancy evidence Cristina had submitted. On the narrower question of whether some restoration was owed at all, however, the court found the tribunal's underlying conclusion reasonable and declined to disturb it, leaving that piece of the decision standing.

What we did

1. Sought an urgent stay of the compliance deadline in the days immediately after Cristina contacted us, moving on an expedited basis because the enforcement date fell inside closing week itself. Without a stay, Cristina would have faced a choice between rushing an expensive restoration she believed she did not fully owe or handing the buyer a plain reason to treat the file as non-compliant, before a court had ever looked at whether the tribunal's decision deserved to stand.
2. Communicated directly with the buyer's counsel to explain the appeal and the stay in plain, non-adversarial terms rather than letting the buyer's side learn about the compliance order secondhand or assume the worst. That early transparency was what gave the other side of the transaction enough information and reassurance to extend patience through closing week instead of treating the order as a closing condition that had simply failed outright.
3. Reviewed the tribunal's full record and written reasons line by line, cross-referencing the findings against the evidence Cristina had actually filed, to identify exactly where the decision had blended a factual finding with an unstated legal standard. That distinction, invisible on a first read of the decision, became the entire foundation of the deference argument once the appeal was drafted, because it was the one place the tribunal's reasoning was genuinely vulnerable to review.
4. Framed the appeal around the standard of review rather than simply re-arguing the underlying facts a second time, since a Divisional Court appeal succeeds or fails on whether the tribunal was owed the deference it assumed for itself, not on whether we personally disagreed with its ultimate conclusion. Keeping the appeal disciplined to that question, rather than a broader complaint about fairness, was what made it a serious legal argument rather than a second attempt at the same facts.
5. Assembled the tenancy evidence into a clear, organized record for the reviewing court, highlighting the specific passages in the tribunal's reasons that failed to grapple with what Cristina had actually submitted about Bilal's unauthorized changes. Presenting the gap this way meant a judge could see the omission directly from the tribunal's own reasons, without having to reconstruct the entire underlying file to understand what had been missed.
6. Negotiated a holdback with the buyer's lawyer to allow the sale to close on its original schedule while the appeal proceeded in the background, rather than asking the buyer to simply wait out a court timeline with no fixed end date. This protected Cristina's transaction from the appeal's own pace, so the closing did not become hostage to how quickly the Divisional Court could hear the matter.
7. Argued the appeal focusing narrowly on the responsibility question, conceding early and deliberately that some restoration obligation was likely to survive review regardless of how the deference argument landed. That concession kept the court's attention on the argument most likely to succeed, rather than diluting a strong point about the standard of review across several weaker ones the tribunal's decision did not actually turn on.
8. Coordinated with Cristina's real estate lawyer throughout so the appeal, the stay and the closing were tracked together on a single timeline rather than three separate ones. That coordination avoided the common failure point in files like this, where litigation counsel and transaction counsel work from different assumptions about deadlines, and a step taken to protect the appeal accidentally jeopardizes the closing, or the reverse.

The outcome

The Divisional Court allowed the appeal in part. It found the tribunal had applied too little scrutiny to the legal question of owner responsibility for a tenant's unauthorized changes, and sent that specific issue back to the tribunal for reconsideration with clearer guidance on the standard it was expected to apply. The court declined to overturn the tribunal's separate finding that some restoration obligation existed in principle, leaving that part of the original decision intact.

On reconsideration, the tribunal reduced Cristina's restoration cost by roughly half, reflecting a finding that she bore some responsibility as the registered owner but not the full cost of changes made without her knowledge or consent. The sale had already closed on schedule by the time the reconsideration concluded, thanks to the holdback arrangement negotiated during the original appeal, so the financial adjustment was resolved as a release of held-back funds rather than a fresh scramble to find new money after closing.

Cristina did not get the outright reversal she had initially hoped for when this began, and she still bore a real, meaningful cost for changes she had not personally made and had not known about. What the appeal secured, in practical terms, was a substantially smaller obligation, a legal record that clarified how much scrutiny this kind of tribunal finding deserves going forward, and, most immediately, a transaction that closed on time instead of collapsing during the single week it could least afford to. Faisal, whose income also depended on the couple's financing plans staying on track, considered that outcome a genuine relief even without a clean win.

What you can learn from this