News
MP Waves Red Flag (and White) at Condominium Corporations
By Ron Danks, Partner, SimpsonWigle Law LLP
On September 27th of this year, John Carmichael, MP for Don Valley West introduced a new Bill into the Federal Legislature. Bill C-288 (The National Flag of Canada Act) is designed to prevent individuals or organizations from stopping citizens from displaying the Canadian flag. The Act indicates that it is prohibited for any person to prevent the displaying of the national flag of Canada provided that:
a) The flag is displayed in a manner befitting this national symbol;
b) The display is not for an improper purpose or use; and
c) The flag is not subjected to desecration.
This legislation makes it a federal offence for any person to interfere with another’s right to fly the flag. The Act provides the Court before which the proceedings are commenced under this legislation, very broad powers, including granting a temporary restraining order or injunction against the offender, ordering any person to comply with the provisions of this Act and/or make such other order as may be deemed necessary to obtain compliance with the Act. It goes on to indicate that if any person fails to comply with any such order, the Judge can fine them any amount the Judge determines is appropriate or the Judge can sentence the offender to a prison term of up to two years.
Should this legislation be approved, and at the current time we see no reason why it would not be especially since the other major parties do not seem to have any great objection to it, Condominium Corporations throughout Canada will not be able to stop individuals from displaying the Canadian flag provided it is done in accordance with this legislation. We only hope that the legislation won’t be interpreted so liberally as to prevent a Condominium from enacting reasonable rules relating to the flying of the flag, such as its size or its replacement when it becomes worn out, tattered and faded. However this may lead to only more litigation when disputes arise as to what may be a reasonable rule.
The United states enacted similar legislation in 2005, specifically aimed at condominiums and community associations however it recognized that some residents may abuse this right and use it as a means to antagonize their neighbours or the association. As such it included a clause that indicated the right to display the flag was subject to, “…any reasonable restriction pertaining to the time, place or manner of displaying the flag ... necessary to protect a substantial interest of the condominium association …”. Not surprisingly this led to many disputes as to whether condominium rules were “reasonable” or not.
In one case out of Georgia a homeowner in a community association erected a 16 foot flag pole on his front lawn without first obtaining the permission of the association. The association requested that he take it down. The owner refused and the matter eventually ended up before a Judge. The association argued that this was not a matter pertaining to the displaying of the flag but rather it was an issue relating to the flagpole which, like any other improvement to the property, required association approval. The Judge rejected this argument stating that, “…the flag and the instrument for flying it are intertwined in the display of the flag, and the associations’ Covenants require association approval for both.” The Judge found that the association’s pre-approval system was, “…a purely arbitrary system with no specific time, place, or manner restrictions …” and that the association, “... is the sole arbiter of construction or modification plans, and it may withhold approval for any reason.” The Judge felt the association’s system for obtaining pre-approval, when applied to displaying the flag imposed “… unreasonable restrictions that are not necessary for protecting its interests.” As such the Judge refused to order the removal of the flag pole.
The American experience is not encouraging for Canadian Condominiums. If this legislation is approved without some thoughtful amendments Condominiums are going to face yet another source of costly litigation.
In Ontario, as in most other provinces, Condominium legislation and Condominium declarations and rules require corporate approval for alterations or improvements made to the common areas. Will our future Flag Act override provincial legislation? It appears so. Will it override the rights of other owner’s who may not want a flag flapping in the wind outside their windows? As it stands now, that would also appear to be the case. Envision this; a unit owner living in a town house condominium erects a 36 foot flag pole on his exclusive use rear yard with a twelve foot long flag hanging on it. Remember he doesn’t own the yard, it may be his exclusive use area but it belongs to everyone who owns a unit in the Condominium, yet under this proposed legislation those other owners have no rights.
It seems Mr Carmichael doesn’t care much about the rights of thousands of his constituents. More likely he didn’t really think this through. Perhaps he should have considered consulting with someone or some organization who knows something about condominiums, maybe the Canadian Condominium Institute, the only National organization representing condominium and strata owners in Canada. It’s not too late!
Ron Danks is a Partner in the Hamilton/Burlington based law firm of SimpsonWigle Law LLP. Ron and the members of his condominium group currently represent members in excess of 650 condominiums throughout Ontario.