Legal

March 30, 2022 Published by London and Area Chapter - By Kristi Sargeant-Kerr

Reasonableness Regardless of the Route

From the CCI Review 2021/2022-3 March 2022 issue of the CCI London Chapter

As you may have read in our last edition of the CCI Review, on January 1, 2022, amendments to Section 117 the Condominium Act, 1998 (the “Act”) came into effect regarding nuisance and nuisance related disputes.

Previously, Section 117 simply prohibited activities or conditions which were “likely to damage the property or cause injury to an individual,” but the amendments clarify and add to this very important section. It now prohibits conditions and activities in units, common elements, or assets of a corporation that are “likely to damage the property or the assets or to cause an injury or an illness to an individual.” Prohibited activities under this section include “any unreasonable noise that is a nuisance, annoyance or disruption” and any other “prescribed nuisance, annoyance or disruption” (currently being odour, smoke, vapour, light, and vibration).

As you may have also heard, January 1, 2022 brought corresponding changes to the Condominium Authority Tribunal (the “CAT”) as its jurisdiction has been expanded to include disputes regarding nuisance, annoyance, and disruption as described in Section 117 of the Act. This is in addition to disputes related to records, pets, parking and storage. Notably, the CAT’s jurisdiction does NOT cover “dangerous activities” listed under Section 117(1) of the Act, which will still need to be addressed at the Ontario Superior Court of Justice.

There is much uncertainty surrounding these changes and it will be some time before we have a good understanding of how the CAT will deal with concerns related to witness credibility, the involvement of experts, and increasing legal costs for example. It will also be some time before we will know how the Courts will address those cases where a party is claiming that a dangerous activity is taking place, potentially to avoid the CAT, but at the heart of the matter are issues related to a lesser nuisance, annoyance or disruption.

In the meantime, it is critical for all Boards of Directors, owners, residents, and condominium managers to remember that when a dispute arises, reasonableness will always win the day. We were reminded of this in two recent decisions from CAT and the Ontario Superior Court of Justice.

In the CAT case of Halton Standard Condominium Corporation 490 v. Paikin, 2021 ONCAT 95 (CanLII), Ms. Paikin, who lives on the second floor of the condominium building, allowed her dog to urinate and defecate on her balcony. Dog excrement would fall and urine would drip onto the patio area below on a regular and frequent basis. A strong odor of waste also emanated from the balcony above.

Of importance here is that the Corporation and condominium manager appeared not to have attempted to resolve the issue directly with Ms. Paikin in any substantive manner but, instead, escalated the matter directly to their lawyer. Their lawyer advised Ms. Paikin that this was unacceptable and warned her that if it continued, the dog could be deemed to be a nuisance and the board could order the dog to be removed. The owner did not resolve the situation and, as such, the Board declared the dog to be a nuisance and Ms. Paikin was given two weeks to remove the dog. Ms. Paikin retained a lawyer who advised that the situation had been resolved and that the dog was no longer urinating or defecating on the balcony. Unfortunately, this was not accurate.

Upon the Corporation commencing a CAT Application and the matter proceeding to a written hearing, the CAT concluded that this was unacceptable and had to be remedied and ruled that the Board’s decision to deem the animal a nuisance was reasonable and the Board was entitled to order the dog to be removed.

In its decision, however, the CAT stated that it was unfortunate that the Corporation had not first attempted to better understand the situation and to explore solutions other than the removal of the dog. The CAT also concluded that the Corporation should have first considered whether there may have been other ways to resolve the issue with Ms. Paikin without escalating the matter to the point of having the dog removed. For this reason, prior to removing the dog, the CAT ordered the corporation to first consider communicating with Ms. Paikin to try to better understand her situation, clarify some of the related issues and avoid escalation of conflict.

The second case that speaks to the necessity of all parties to be reasonable is Metropolitan Toronto Condominium Corporation No. 1171 v. Rebeiro, 2022 ONSC 503 (CanLII). The heart of this matter was a neighbours’ dispute which involved competing allegations between two residents and each was alleged to abuse the other with name calling, banging on a common wall, and other forms of harassment. The condominium corporation sided with one of the residents and ordered the other out or at least ordered them to comply with the condominium’s rules.

After being presented with evidence which was, in Justice Myers’ opinion, lacking credibility, he candidly held that the matter should have never happened and stayed it pending mediation and arbitration. In doing so, he quoted Justice Dunphy who discussed condominium neighbours’ disputes in TSCC 2204 v. Panagiotou, 2021 ONSC 8199 (CanLII):

This fiasco has gone on long enough. The root of the problem is the ill-advised decision to escalate this dispute to an “on the meter” legal level with an ever-increasing conveyer belt of demands for legal fees instead of deescalating it through mediation as the Legislature plainly intended to occur.

Justice Myers further held that the matter was simple to fix. Rather than being found in an expensive, drawn-out court proceeding, “the fix is in making the parties sit down, hear each other, and realize that the only win-win is peace.” He also questioned why cases such as this one kept happening and why condominium corporations keep coming to court with “she said/she said” neighbour disputes instead of going to mediation and arbitration as intended by the Act and which should be a quicker, cheaper and more conciliatory way to resolve these kinds of disputes.

Going forward, regardless of the expansion of the CAT and the Court’s jurisdiction to continue hearing matters involving dangerous activities, all parties involved in condominium disputes need to ensure steps are being taken by all sides to try and resolve the dispute in as reasonable a manner as possible. This may mean sitting the parties down in an informal setting with a neutral third party, retaining a mediator or attempting more creative solutions that assist in compelling the parties to pause and work towards a resolution.

As such matters are often complex and involve competing evidence and issues surrounding credibility, the assistance of legal counsel specializing in condominium disputes may still be helpful. Our office is always open to working with condominium communities to help navigate such difficult and often emotionally charged issues and find the most efficient and appropriate way forward for all involved.

Kristi Sargeant-Kerr, LL.B. specializes in all aspects of condominium and real estate law, including development, management and litigation at Scott Petrie LLP.
She has been involved in mediation and arbitration at numerous administrative Boards and Tribunals.
Kristi has been appointed to the Advisory Committee of the Condominium Management Regulatory Authority of Ontario (CMRAO) .
She is an active member of the CCI London and Area Chapter since 2017 and currently serves as Secretary. Kristi shares her expertise in publications and education events as a writer, presenter and instructor