Legal

December 2, 2021 Published by Grand River Chapter - By Victor Yee

Winter Is Coming: Ready Your Condo’s Noise And Other Nuisance Enforcements

On September 23rd 2021, the Ontario Ministry of Government and Consumer Services (the “MGCS”) announced that as of January 1st 2022, the Condominium Authority Tribunal (the “CAT”) will have the jurisdiction to hear condominium disputes regarding noise, odour, smoke, vapour, light, or vibration (collectively, “NOSVLV” disputes).

On October 27th 2021, the Ontario Real Estate Association (“OREA”) sent out an e-blast to its 82,000 members, titled “IMPORTANT UPDATE TO CONDO OWNERS”, advising Realtors about the CAT’s expanded jurisdiction into NOSVLV disputes as of the new year.  The OREA update advised that “If you work with clients who buy, sell or own condominium properties this information is important”, and although the e-blast did not specifically reference “noise” as part of the NOSVLV issues that are arriving into CAT’s jurisdiction,[1] the overall message was heard loud and clear: Condominium unit owners will soon be able to file online Applications to the CAT for these day-to-day disputes, “at a total cost of $200”.

Accordingly, Condominium Managers and Boards of Directors should take these next couple of months before January 1st 2022 to get their condominium’s affairs in order – especially with regards to NOSVLV enforcement issues.  As of the new year, a unit owner who finds their neighbour’s late-night television watching or LED balcony lights to be a nuisance, can file an online Application to the 24/7 CAT from any Internet-connected device, for a mere $25 filing fee (Stage 2 Mediation is currently set at a $50 filing fee, and Stage 3 Adjudication is currently set at a $125 filing fee).

Investigate NOSVLV Complaints and Marshal the Evidence

If a unit owner commences a CAT Application against a condominium corporation for allegedly failing to properly enforce against violations by an owner or resident with regards to NOSVLV issues, then the condominium will need to demonstrate to the CAT that it took positive steps to investigate any NOSVLV complaints against the violator and enforce against such violations (if any). 

Under Section 17(3) and Section 119(3) of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), a condominium corporation is obligated to take “all reasonable steps” to ensure that owners and residents are complying with the provisions of the Act and the Declaration, By-laws, and Rules of the condominium (collectively, the “Governing Documents”).

As such, if a condominium receives a complaint that a unit owner or resident is violating a provision in the Act or the Governing Documents with regards to NOSVLV, then the condominium corporation is obligated to investigate such a complaint and take reasonable steps to enforce against such violations.

What “reasonable steps” are required of the condominium, will depend on each condominium corporation’s Governing Documents and the specific situation that the condominium is faced with.  It will certainly be one of the primary tasks of the CAT to set out, through the CAT Applications it decides after January 1st 2022, what the extent of “reasonable steps” are for certain NOSVLV situations.

Under the CAT’s existing jurisdiction (as of October 1st 2020) over condominium disputes regarding pets, vehicles, parking, or storage (collectively, “PVPS” disputes), the CAT has found that reasonable enforcement measures could include a compliance/warning letter from the Manager to the unit owner and/or resident, reminding them of their obligation to comply with the provisions found in the Act and the particular condominium’s Governing Documents.  The CAT has also found that a further “reasonable” enforcement measure could include a legal enforcement letter issued by the condominium’s legal counsel.

Recovering Legal Costs of Enforcement From NOSVLV Violators

As I have written about previously (here and here), a condominium is allowed to charge back its legal costs of enforcing against a violator if the Act or an indemnification provision in that particular condominium’s Declaration authorizes it in the specific circumstances; such a chargeback forms part of the common expenses owed by the violator’s unit to the condominium corporation and can be recovered by the condominium through a lien pursuant to Section 85 of the Act.  Alternatively, the condominium could bring a compliance Application against the violator(s), for example pursuant to Section 134 of the Act, and obtain a Court Order authorizing the chargeback.

As of January 1st 2022, a condominium corporation that enforces against a NOSVLV violator may be brought before the CAT by the unit owner who is alleged to be in violation.  But the CAT’s expansion of jurisdiction into NOSVLV disputes in the new year also means that a condominium corporation could pre-emptively commence a CAT Application against the NOSVLV violator first.

Under the CAT’s existing PVPS jurisdiction, some condominiums have been able to recover their legal costs of enforcement from the PVPS violator.

In Peel Condominium Corporation No. 96 v. Psofimis, 2021 ONCAT 48 (“Psofimis”), which I have written about previously (here), the CAT awarded the condominium with its legal costs incurred in having its legal counsel issue a PVPS legal enforcement letter to the unit owner with the “overweight” German Shepherds.  The CAT also awarded the condominium with its legal costs incurred in having its legal counsel represent the condominium in prosecuting the CAT Application against the pet owner and the condominium’s $200 CAT filing fees.

In Middlesex Vacant Land Condominium Corporation No. 605 v. Cui, 2021 ONCAT 91 (“Cui”), which I have also written about previously (here), the CAT awarded the condominium with its legal costs incurred in having its legal counsel issue two PVPS legal enforcement letters to the unit owner with the nuisance-creating dogs.  The CAT also awarded the condominium with a portion of its legal costs incurred in having its legal counsel represent the condominium in prosecuting the CAT Application against the pet owner.

In Halton Standard Condominium Corporation No. 490 v. Paikin, 2021 ONCAT 95 (“Paikin”), the CAT awarded the condominium with some of its legal costs incurred in having its legal counsel issue two PVPS enforcement letters to the unit owner with the nuisance-creating dog, and awarded the condominium’s $200 CAT filing fees – but declined to award the condominium with its legal costs in having its legal counsel prosecute the CAT Application. 

Even though the CAT found in Paikin that “The situation, in this case, is serious, especially for the complainant as is the Respondent’s failure to follow the condominium’s rules”, the CAT ultimately ruled that “these are not sufficiently exceptional circumstances” to warrant rebutting the CAT’s default presumption against awarding legal costs (an issue that I have repeatedly written about previously here, here, here, and here).  The CAT did not give any detailed reasons as to why it was departing from the CAT’s decisions in the previous cases of Cui and Psofimis.

Convene the Council: Winter Is Coming

Given the ever-changing law and the fact that each CAT case appears to turn on its own facts, condominium corporations should consult with their own legal counsel when faced with a NOSVLV complaint which, upon investigation, indicates that indeed a NOSVLV violation has occurred.

The CAT’s expansion into these 6 new realms of noise, odour, smoke, vibration, light, and vapour will require condominiums to carefully review and weigh their legal options as of January 1st 2022.

The new year will likely arrive with a flood of CAT Applications – by unit owners and by condominium corporations – after the CAT’s front-end staff have reviewed the new NOSVLV Applications filed online.  As such, condominium corporations should be readying themselves now.

 

Victor Yee, Hons. B.A., J.D.

 

[1] To be fair, someone quickly reading the MGCS’ announcement on September 23rd 2021 could be easily misled into that misunderstanding.  “Noise” is specifically enumerated in the new Section 117(2)(a) of the Condominium Act which will be proclaimed into force on January 1st 2022, whereas the other nuisances of odour, smoke, vapour, light, and vibration are merely listed in the new Section 26 of the General Regulation to the Act, which will also come into force on January 1st 2022.  The MGCS announcement discussed both, but specifically set out in bullet points only the OSVLV nuisances – which appears to have been echoed in the OREA e-blast.

 

All of the information contained in this article is of a general nature for informational purposes only and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this article is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.