Legal

February 2, 2022 Published by Toronto and Area Chapter - By Bradley Chaplick

The Hidden Impact of New Nuisance Laws

From the Winter 2021 issue of CCI Toronto Condovoice Magazine, Volume 26, Issue Number 2

Disputes Related to Noise, Odour, Smoke, Vapour, Light, and Vibration (Collectively, any “Nuisance”) Can Now Proceed to CAT

On January 1, 2022, two related amendments to the Condominium Act, 1998 take effect.

Firstly, the Condominium Authority Tribunal’s (“CAT”) jurisdiction is expanded so that disputes between condominium corporations and unit owners relating to noise, odour, smoke, vapour, light, and vibration (collectively, any “nuisance”) now proceed to CAT, rather than to court or to private mediation and arbitration.

Secondly, subsection 117(2) of the Condominium Act, 1998 (the “Act”) comes into force, which prohibits any conduct or activity in any unit or on the common elements that results in an unreasonably disturbing nuisance.

This article discusses:

1. the hidden impact of the new subsection 117(2) of the Act on condominium corporations;
2. whether CAT has jurisdiction over disputes involving tenants in residential condominium buildings;
3. recent condominium “nuisance” case law;
4. best practices for compliance and concluding remarks.

PART ONE

The Hidden Impact on Condominium Corporations

An important, and overlooked, aspect of the new subsection 117(2) of the Act is that it also applies to condominium corporations’ activities, not just the nuisancecreated conduct of residents and their invitees.

Previously, a unit owner complaining about a nuisance from a common element source would have to prove that the nuisance was the result of a failure to maintain and repair the common elements or was “oppressive”.

Owners were rarely successful in these claims because all the condominium corporation had to do to succeed in court was demonstrate that it was following a normal maintenance and repair program, and that it had acted reasonably, even if the problem had not been solved, or took many years to fix.

Condominium corporations tended to succeed even in cases where appropriate repairs or replacement of common elements that could have solved the problem were delayed, sometimes for years, because of limited available funds, or other maintenance and repair priorities.

Under the new legislation, owners will no longer have to prove that a nuisance is oppressive or the result of poor maintenance. Instead, it will likely be sufficient to prove that a nuisance exists and that a condominium corporation has not adequately discharged its positive obligation to rectify it.

The result is that condominium corporations may no longer have the same discretion that they once had to delay repairs because of other priorities in the building if that delay now results in a nuisance to any occupant.

PART TWO

Do Tenants and Other Non-Owners Have the Right to Commence a CAT Application Due to Nuisance?

No. Aside from rare exceptions, only condominium corporations and unit owners have the right to commence a CAT application. That said, the tribunal may add a tenant or other unit occupant as a party to a proceeding and make a compliance order against a tenant in appropriate circumstances. Unit owners and condominium corporations can also name a tenant or other non-owner occupant as a responding party to a CAT application and seek a compliance order, monetary damages, and legal costs against non-owners. A unit owner who has a dispute with his or her own tenant remains under the jurisdiction of the Landlord and Tenant Board, not CAT.

Similarly, a tenant who is experiencing excessive noise or other nuisance may commence proceedings against his or her landlord at the Landlord and Tenant Board, and does not have the right to commence proceedings directly against the condominium corporation or other unit owners at CAT.

PART THREE

Recent Nuisance Case Law: Zaman and Mohamoud

The Zaman and Mohamoud cases demonstrate a condominium corporation’s duty to properly respond to complaints about noise and other forms of nuisance, but these cases were decided under the old rules. As of January 1, 2022, condominium corporations may be held to a higher standard of care based on the new legal duties in subsection 117(2) of the Act.

In Zaman v. TSCC 1643, 2020 ONSC 1262, a unit owner commenced a court application against her condominium corporation due to alleged excessive noise being created by a neighbouring resident, especially late at night. Ms. Zaman claimed that the steps taken by the condominium to attempt to resolve the problem were insufficient, and therefore oppressive.

The Zaman case is precisely the type of dispute that would now proceed to CAT, rather than court.

The court in Zaman found that the condominium corporation ought to have done more to “escalate” Ms. Zaman’s complaints, including by “putting economic pressure on the neighbour for her to behave more appropriately late at night, such as by charging her for the condominium’s legal fees associated with the complaints.”

The court’s recommendation to use legal fees as a form of penalty for compelling compliance with the rules is consistent with industry norms where there is an appropriate indemnification clause in the condominium’s governing documents. Other recent CAT cases relating to pets have similarly upheld pre-litigation legal expense chargebacks for letters sent to unit owners and tenants resulting from a breach of the corporation’s rules.

The court also stated that it was wrong for the condominium to refuse to disclose to Ms. Zaman the details of a written settlement agreement with her neighbour who was creating the noise.

However, the court ultimately applied the relatively strict “oppression” test and found that condominium boards of directors were entitled to broad discretion when deciding how to enforce their own rules. Even though Ms. Zaman had been disturbed for many years, her claim was dismissed as the condominium had not acted unfairly or in bad faith.

In the writer’s view, if the court had been asked to adjudicate Ms. Zaman’s claim under subsection 117(2) of the Act, rather than the oppression remedy, then the case might have had a different outcome.

A CAT adjudicator could have added the neighbour who was alleged to be creating excessive noise as a party to the proceeding, and there could have been a compliance order in Ms. Zaman’s favour against her neighbour, or even potential monetary damages ordered in Ms. Zaman’s favour. Going forward, a new kind of neighbour vs. neighbour noise (and other nuisance) litigation is likely to emerge, with the condominium corporation also involved as a third party to the proceeding.

In Mohamoud v. CCC 25, 2019 ONSC 7127, a unit owner again commenced a court application against her condominium corporation due to alleged excessive noise and vibration, but in this case the noise and vibration related to the common element mechanical equipment immediately above her dwelling unit.

The nuisance allegedly began around 2013 and continued until 2019 when the condominium corporation ultimately replaced two exhaust fans on the roof of the building. The fan replacement did not completely eliminate the noise and vibration, but reduced it to a level that the unit owner considered tolerable. The unit owner then argued that the length of time that it took to replace the two fans (more than five years) was excessive, and therefore oppressive.

The court determined that the fans had been properly inspected and maintained by the condominium corporation, and that the condominium corporation had attempted to address the problem with its mechanical service contractors, and then with a sound engineer, before finally opting to replace the fans. This was not a case of “five years of inactivity” by the condominium corporation.

That said, there was an initial delay of several months before any response was provided to Ms. Mohamoud, and the superintendent’s original memo assessing the complaint as “malicious and a complete waste of time” was found to be unduly sarcastic and dismissive.

The court then confirmed that the condominium corporation was not expected to be “perfect”, it only had to demonstrate that it had acted reasonably. In this case, the court determined that the overall response to Ms. Mohamoud’s concerns was reasonable because of the need to balance the collective best interests of all owners when prioritizing maintenance and repair projects in the building.

Ms. Mohamoud’s application was dismissed, but once again, had this case proceeded to CAT under subsection 117(2) of the Act, the outcome might have been very different. The reason being subsection 117(2) of the Act creates a new positive obligation on condominium corporations to rectify excessive noise and vibration that goes beyond merely ensuring that the equipment is being properly maintained and is kept in good working order.

PART FOUR

Best Practices and Concluding Remarks

For alleged ongoing nuisance conduct, meaning conduct that is persistently breaching the rules and not a one-off incident, condominium corporations should diligently investigate complaints.

This may include:

1. having a staff member attempt to verify the complaint;
2. creating a written record of the incident(s);
3. taking interim action by sending a warning letter or legal demand letter while the investigation is ongoing;
4. communicating with the complainant, explaining what steps the condominium has taken and what steps will be taken in the future, as well as expected timelines;
5. taking a written statement from the complainant;
6. taking written statements from other potential witnesses, such as neighbouring residents;
7. using technology to record or measure the nuisance;
8. taking a written statement from the accused in response to the specific allegations;
9. reporting to the board of directors; and,
10. providing the complainant and the accused with the essential findings of the investigation.

After the investigation is complete, a condominium corporation should attempt to resolve the complaint by communicating expected norms of behaviour to both the complainant and the accused. If the conduct continues, then further enforcement action is necessary, up to and including commencing a CAT application for compliance.

If the alleged nuisance results from a common element source, then the same basic principles of investigation and communication would apply as above, but with necessary modifications. In this case, it may be appropriate to involve qualified experts at the condominium corporation’s cost, and condominium corporation should follow expert advice and keep the complainant informed of the steps being taken as well as expected timelines. Investigations and any necessary repairs should ideally be completed in the span of weeks or months after the matter first comes to the condominium corporation’s attention, depending on complexity, not years.

Over time, precedent case law will establish a consensus standard of care for condominium corporations responding to nuisance complaints, including appropriate timelines for rectifying problems.

Condominium managers and boards of directors should strive to withstand the initial legal uncertainty by taking a diligent approach to nuisance complaints. As always, condominium corporations should seek legal advice at an early stage in the dispute process to ensure that they implement a strong plan of action that satisfies the condominium corporation’s standard of care.