Legal

November 21, 2022 Published by Toronto and Area Chapter - By Justin McLarty, Michael Prosia, Jason Rivait

Case Law Update

From the Fall 2022 issue of CCI Toronto Condovoice Magazine, Volume 27, Issue Number 1.

Wong v. TSCC No. 1918, 2022 ONSC 3409
Ms. Wong resides on the ground floor and next to the garbage room which contains a compactor and is the termination point of the garbage chute used by all residents. Soon after moving into the unit in 2010, Ms. Wong experienced loud noise and vibrations emanating from the garbage room. Complaints were made by Ms. Wong to Toronto Standard Condominium Corporation No. 1918 ("TSCC 1918") between 2010 and 2012.

In mid-2012, the Corporation, with the assistance of property management, undertook some informal testing of noise levels and conducted meter readings. In mid-2013, the Corporation undertook certain repairs to the compactor; however, such repairs were not to Ms. Wong's satisfaction. Thereafter, TSCC 1918 posted a notice to advise residents to not use the chute overnight. While this minimized the disturbance to an extent, it did not resolve the issue to Ms. Wong's satisfaction.

In early-2014, TSCC 1918 installed a checkpoint alarm light at the security desk which triggers whenever the compactor is jammed, running too long or running at night. Locks were also installed on the garbage chute doors to prevent overnight access. The solutions seemed to address the issue until Ms. Wong began working from home in 2017. In early-2018, TSCC 1918 engaged an engineer who recommended installing cement block in the garbage room for further insulation. Other steps to reduce noise and vibrations were also undertaken at that time.

While the above steps minimized the noise, Ms. Wong continued to complain. TSCC 1918 subsequently agreed to engage a soundproofing company at its cost. The soundproofing company determined that the noise and vibrations were excessive and provided recommendations to address the issue. TSCC 1918 consulted its legal counsel and a recommendation was made to peer review the report. Such peer review was done by an engineer and it concluded that the soundproofing company's test was flawed and that the sound and vibrations were caused by a different issue.

In late-2020 additional noise testing was done by a different company and recommendations were made to address the issues. TSCC 1918 accepted this proposal but Ms. Wong did not agree that such proposal was adequate as she preferred the recommendations from the original soundproofing company.

Ms. Wong subsequently sought various orders in the nature of declaratory relief and damages under the oppression remedy. The question to be determined by the Court was whether the Corporation's response to the complaints made by the unit owner were reasonable. Ms. Wong had the burden to prove that TSCC 1918 breached its statutory duties to maintain and repair the garbage system or breached her right to quietly enjoy her unit.

The Court held that the actions of TSCC 1918 were insufficient and oppressive. Of note, the Court stated that an "inexcusable length of time" had gone by prior to TSCC 1918 taking real steps to address Ms. Wong's concerns. As a reminder, this matter had gone on for approximately eleven years. The Court noted that there were unacceptable gaps in time between the responses of TSCC 1918.

The Takeaway
As a matter of law, the obligation of a condominium corporation is to do what is reasonable in carrying out its statutory duty of repair and maintenance. There is no standard of strict liability or absolute perfection on the part of the condominium corporation in carrying out this statutory duty. Further, unit owners are not entitled to perfect silence.

TSCC 1918 clearly took steps to address the concerns of Ms. Wong; however, there were gaps in such steps and missteps along the way. Specifically, at one point in time, TSCC 1918 advised Ms. Wong's lawyer that TSCC 1918 would not take further steps to address the noise/vibrations "unless and until Wong rescinded this application". The Court clearly took issue with this statement.

Additionally, condominium corporations must find meaningful solutions. If such solutions do not remedy the deficiency, then additional investigations and steps should be taken in a timely manner. Any delays could expose a condominium corporation to risk.

Unreported Decision
In 2020, a condominium corporation ("Corporation") faced the problem of a tenant ("Tenant") who was creating a nuisance for other residents of the building in the form of excessive noise. The conduct was objectively severe.

The Corporation received a number of complaints from other residents of the building about the Tenant, and the Corporation made significant efforts to resolve the matter informally through demand letters by property management and its counsel. With informal resolution having failed, the Corporation wanted to take legal action to have the Tenant removed from the building.

It is noted by background that the Tenant had a valid tenancy agreement with the owner of the unit where she resided, and the owner was in the process of attempting to evict her at the Landlord and Tenant Board. Pursuant to Fraser v. Beach, 2005 CanLII 14309 (ON CA), the general law is that it is the Landlord and Tenant Board which has exclusive jurisdiction to evict tenants from their residential premises, unless a statute provides otherwise.

The Corporation ultimately proceeded with an application under s. 134 of the Condominium Act, 1998, S.O. 1998, c. 19 (the "Act") for an order to evict the Tenant, and in the alternative for an order for compliance against the Tenant.

The Court held that pursuant to s. 134(4) of the Act, a compliance order must be obtained prior to ordering the removal of the tenant from a condominium building. After the Corporation obtained the compliance order, and the Tenant failed to comply, the Court ultimately granted the removal of the Tenant from the building, which was made enforceable by a private bailiff with police assistance.

The Court's jurisdiction to remove a tenant under s. 134 of the Act has since been confirmed in other lower court decisions, including MTCC No. 1260 v. Singh, 2022 ONSC 1606. There is no known appellate authority yet on this issue.

The Takeaway
Some tenants' rights advocates have suggested that a condominium corporation is prohibited from removing a residential tenant under s. 134 of the Act, and that such removal can only be accomplished by way of application to the Landlord and Tenant Board. This position is not supported by the current law. The current law supports the right of a condominium corporation to remove a problem tenant from the building with the powers granted under s. 134 of the Act.

It is noted that the Act is in the process of being amended, with the removal of s. 134, and the addition of s. 135.1 and s. 135.2. These amendments appear to reflect the intent of the legislature to confirm a condominium corporation's power to remove a problem tenant, while explicitly prohibiting a unit owner from bringing such an application. If a unit owner wishes to have a problem tenant removed, the Landlord and Tenant Board will retain exclusive jurisdiction.

In addition to issues involving the removal of problem tenants is the related issue of whether a condominium corporation can recover its legal costs for the application. There is law to suggest such legal fees can be added to the common expenses for the unit, even in the absence of any fault by the owner (See: Metropolitan Toronto Condominium Corporation No. 933 v. Lyn, 2020 ONSC 196.)

MTCC No. 1260 v. Singh, 2022 ONSC 1606
Singh is a troubling saga of tenants who simply would not control their dogs. The tenants kept what were likely pit bulls in the unit. One of the dogs had previously attacked another resident and that resident's dog, which resulted in an order from the City of Toronto that the dogs were to be muzzled in public.

The attack on another resident and their dog was simply the culmination of a long history of problematic behaviour on the part of both the dogs and the tenants. The tenants frequently failed to keep any control over the dogs and other residents were harassed and frightened by the tenants and their dogs.

The condominium corporation commenced a compliance application and obtained an order from the Superior Court of Justice requiring the dogs to be removed from the unit. The application was commenced after the Condominium Authority Tribunal's jurisdiction expanded to include pet issues.

The tenants did not comply with that court order and the Corporation subsequently had to enlist the help of the Sheriff and Animal Services to have the dogs removed. The tenants were belligerent throughout the process, including threatening the children of the Sheriff and threats to bring more dogs into the building and set them free in the hallways.

The Corporation had to return to court again, this time seeking the removal of the tenants. While the court would not grant an order at that time, it did order that the tenants were restrained from bringing any other dogs into the building without the permission of the court.

The tenants brought dogs into the unit once more and appear to have attempted to hide their presence. Despite the tenants' attempts to hide the presence of the dogs, the Corporation was able to present persuasive evidence to the court that established that the tenants had brought dogs back into the building, in contravention of the court's previous orders.

The court ultimately granted the Corporation's request to terminate the tenancy. As discussed in greater detail earlier in this article the termination of tenancies under Section 134 of the Act has been a contentious question and appears to be occurring more frequently as delays at the Landlord and Tenant Board continue.

The Takeaway
While the jurisdiction of the Condominium Authority Tribunal ("CAT") has been expanded to include a dispute with respect to pets, including disputes with owners and / or occupiers of units, a compliance application to the Superior Court of Justice remains an option when the issue triggers the provisions of Section 117(1) of the Act.

Singh is an important decision which reaffirms the availability of the Superior Court to address activities or conditions that pose a risk of injury or illness to other residents or damage to the property, regardless of whether the broader categorization of that activity falls within the scope of CAT's jurisdiction.

Singh also highlights the high threshold that must be met to convince a court that tenants are not suited for communal living, as an order to terminate the tenancy was not made until the two previous court orders had been violated.