Specific Legal Issues
December, 29 2022 Published by Grand River Chapter - By Kiranpreet Basra, Taylor Blackwell,
Year-End Review of Condominium Cases
Well, another year is over, which means we have another year of decisions from the Condominium Authority Tribunal (the “CAT”). With so many interesting cases, this blog could go on forever. However, we’ve narrowed it down to four cases from 2022 worth knowing about.
A Light Nuisance: Nikolov v. Halton Standard Condominium Corporation No. 476, 2022 ONCAT 65
Ms. Nikolov (“Nikolov”) is a unit owner in Halton Standard Condominium Corporation No. 476 (“HSCC476”) who claimed a security light installed by HSCC476 caused a bright light to shine into Nikolov’s bedroom windows creating an unreasonable disruption. HSCC476 states that the light is not the cause of the disruption. However, Nikolov alleges that in her 12 years of owning the unit, she did not have a light disruption in her unit until the recent installation.
Firstly, CAT established that the light was an unreasonable disruption to Nikolov and therefore, a prescribed nuisance, annoyance, or disruption under the Condominium Act, 1998 (the “Act”). Even with the use of black-out blinds, the light still shined through. HSCC476 claimed the blinds could be installed further up on the wall, however, Nikolov states that the blinds were correctly installed, and it would be difficult to re-install as HSCC476 suggests.
Secondly, Nikolov provided evidence of other units which also recently had lights installed but contained baffles on them. HSCC476 did not mention why they chose to install some lights with baffles and some without. Additionally, the parties did not negotiate a test with a neutral party to determine if the light did in fact shine through the windows.
Nikolov successfully established that HSCC476’s security light caused an unreasonable disruption.
CAT’s remedy to Nikolov was the installation of the light with baffles, changing the direction of the light and HSCC476 would repair any damage to the exterior brick. Nikolov was also awarded $200 – the amount of her filing fees with CAT.
Had Nikolov and HSCC476 completed the light test in agreeable terms, this matter would not have been referred to CAT and would have been more cost effective and timely to all parties.
A Noise Nuisance: Jones v. Toronto Standard Condominium Corporation No. 2017, 2022 ONCAT 139
The case of Jones deals with unreasonable noise from heat pumps in the units above and below since 2019 (the “Noise Nuisance”). Ms. Jones (“Jones”) is a unit owner of Toronto Standard Condominium Corporation No. 2017 (“TSCC2017”). Jones alleged that TSCC2017 failed to meet its obligation under the Act to deal with the Noise Nuisance and is seeking $25,000 in damages.
TSCC2017 states they acted appropriately in response to Jones’ complaints and argue the application should be dismissed. TSCC2017 claimed there was no excessive noise in Jones’s unit and if there was, it was due to the heat pump in her unit which Jones failed to address.
According to the Act and the governing documents, it was held that TSCC2017 did not take reasonable steps to address the Noise Nuisance. TSCC2017 did not provide written evidence to demonstrate that the neighbouring units were advised of the nuisance. TSCC2017 also did not show that the neighbouring unit owners were asked to take steps to rectify the Noise Nuisance. Additionally, TSCC2017 had originally closed the matter in December 2019, and it wasn’t until Jones retained legal representation that TSCC2017 investigated the Noise Nuisance.
Therefore, CAT confirmed Jones experienced a noise nuisance contrary to s.117(2) of the Act and that the neighbouring units had taken reasonable steps to stop the nuisance. CAT further confirmed TSCC2017 failed to take reasonable steps to ensure compliance with the Act and governing documents. As such, CAT ordered TSCC2017 to pay Jones $2100 for compensation, legal fees, and filing fees. It is important that the Condominium Corporations investigate complaints fully in compliance with the Act and governing documents of the corporation.
Dog Must be Removed: Peel Condominium Corporation No. 166 v. Sithamparanathan, 2022 ONCAT 130
In Sithamparanathan a condominium corporation that does not allow any pets was seeking an order to remove the Respondent’s dog from the building. The Respondent argued the dog helped the family with the grieving process after loss of a family member, making a claim for accommodation under the Ontario Human Rights Code. They also argued that the family was being unfairly targeted as there were many unregistered dogs living in the building.
The issue of number of unregistered dogs was explored, with the condo manager asserting there were five dogs in the building, three of which were permitted under the Code, one was a “legacy” pet and the remaining being the Respondent’s dog. The Respondent disputed this and submitted that there were possibly as many as 30 dogs in the building.
The property manager provided evidence that in 2002, contrary to the declaration, many unregistered dogs lived in the building. A special meeting was held where it was agreed that pets who were registered could continue to live in the building as “legacy” pets. In 2016, it was recognized that again there were many unregistered pets in the building. Registered pets at that time were allowed to remain in the building but going forward the no pets rule would be enforced.
The CAT decided the Respondent provided no evidence that the condo manager was unfairly targeting them due to the number of unauthorized pets in the building and there would be no accommodation for the dog under the Code. CAT ordered removal of the dog six weeks from the date of the decision and the Respondent was ordered to pay the $200 CAT fee.
Redacted Records: Petrovic v. York Condominium Corporation No. 60, 2022 ONCAT 49
In Petrovic the question of how much information a condo corporation can redact from records while still complying with the Act was at issue. The Applicant was a unit owner who submitted a records request to gather information after suffering from a series of floods and water damage in the condominium. The Respondent provided some of the records and the issue to be decided was whether the Respondent had satisfied the Applicant’s request and whether the redactions to the records were appropriate.
The Applicant had requested meeting minutes from 2021 and objected to the extent of the redactions, claiming that they were so extensive they rendered the records inadequate for the Applicant’s purposes. The Respondent provided no explanation for why the information was redacted.
The CAT relied on previous tribunal decisions, agreeing that the assessment of adequacy is based on requirements of the Act, rather than whether the records were adequate for the Applicant’s purposes. The CAT determined that the records were adequate for the purposes outlined in the Act. The Respondent, however, did not comply with subsection 13.8(1)(b) of Ontario Regulation 48/01 which requires an explanation of the reasons for each redaction.
The CAT ordered that the Respondent provide an updated statement document explaining the basis for each redaction. The Respondent was also ordered to reimburse the Applicant for the $200 that was paid to bring the issue to Stage 3 of the Tribunal process.
Robson Carpenter LLP
Robson Carpenter LLP
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