Legal

December 29, 2022 Published by Toronto and Area Chapter - By Luis Hernandez, Joy Mathews, Benjamin Rutherford

Decisions From the Courts

From the Winter 2022 issue of CCI Toronto Condovoice Magazine, Volume 27, Issue Number 2.

CAT & Dogs, Jail Time for Harassment, & Defining Seasonal Furniture

Toronto Standard Condominium Corporation NO. 2208 v Kaissi et al. 2022 ONCAT 92
Summary: Dangerous Dog Orders without additional evidence are not sufficient to remove dogs from condominiums.

A few whiskers have been raised from the recent CAT decision with respect to a dog which was classified as a “dangerous dog” by the municipality being permitted to stay in a condominium. 

In Toronto Standard Condominium Corporation No. 2208 v Kaissi et al. 2022 ONCAT 92, the condominium corporation commenced an application against an owner seeking the permanent removal of its dog on the basis that it was a nuisance and a municipal order being issued determining it was a “dangerous dog”. 

The CAT found in favour of the owner and the application was dismissed. 

Adding more “bite” to the story, the owner also successfully obtained costs in the amount of $5,000.00 against the condominium which were ordered as a credit towards the common expenses attributable to the unit. Doggy-related cases are becoming common at the CAT – as of the date of drafting this article, there are 17 pet cases on the CAT’s website and, somewhat noteworthy, is that this is the only case where the corporation had to pay costs (usually the owner pays or there are no costs awarded). 

Lots of issues here, but let’s stick with the big three. 

ISSUE #1 – No more Section 117(1) attempts at the CAT – give it up, ‘ain’t going to happen… 

 The CAT has repeatedly stated that Section 117(1) of the Condominium Act, 1998 (the “Act”) is not within its jurisdiction, specifically section 1(3) of the Regulation 179/17 prohibits the CAT from dealing with applications where the issues in dispute relate to section 117(1) of the Act. These disputes are related to conditions or activities that may cause someone injury or damage to the condominium corporation’s property. Any disputes that primarily relate to injury, violence, or damage, will appear to be outside of the CAT’s jurisdiction. 

The CAT stated that the condominium corporation in this case attempted to rely on the wording of section 117 of the Act without naming it and responded as follows: “[n]otwithstanding that the parties introduced evidence in this case about the Dangerous Dog Order issued by the City of Toronto, the sole focus of this case is whether the Applicant is justified in declaring the Respondents’ dog a nuisance and ordering its removal…”. 

ISSUE #2 – Dangerous Dog Order DOES NOT mean automatic removal of dog 

Before considering the issue of nuisance, we should first clarify what indeed is a “dangerous dog order”. A dangerous dog order will be issued in accordance with  chapter 349-15B (2) of the Toronto Municipal Code. The order includes the following: 

• dog must be muzzled except when on the owner’s premises 
• a warning sign must be posted on the owner’s premises 
• dog is prohibited from using the City’s leash-free dog parks 
• owner must obtain a dangerous dog Tag 
• dog must be microchipped 
• City keeps a photo of the dog on file 
• dog owner must ensure the dog receives socialization/obedience training within 90 days of issuance of the order. 

Dangerous Dog Orders can be appealed to the “doggy tribunal” (otherwise known as 5-member board called the Dangerous Dog Review Tribunal). 

Here is when things get interesting: despite the dangerous dog order being issued, and the corporation’s reliance upon same as evidence of its allegations of nuisance, the CAT found that the owner’s actions immediately upon receipt of order mitigated some, if not all, the concerns which resulted in the order. 

The tribunal accepted the owner’s evidence that she immediately complied with the obedience training within 14- days instead of the 90-days, the statements from an expert veterinarian who confirmed that the dog is no longer a threat, and the fact that this was the only violent incident involving this dog in the condominium. 

ISSUE #3 – Evidence, Evidence, Evidence of Nuisance Only, Please!

The CAT struggled with contradictory witness statements which lead to considerations of possible contributory negligence issues, specifically other owners’ dogs creating the situation which resulted in the attack and the condominium’s practice of not enforcing dog rules on the common elements. 

According to the tribunal, the evidence presented by the corporation was also lacking. In particular, the tribunal noted the following: 

• No thorough investigation of the incident completed by the condominium corporation 
• No direct testimony from the board and/or management 
• No video footage 
• No awareness of the Dangerous Dog Order when the board initially sent its one and only demand letter before commencing the CAT application 

The Tribunal noted that this dispute may been avoided by completing a thorough investigation and providing an opportunity to mediate and/or comply before commencing the CAT application. 

Although seeking an order for the removal of a pet is a serious matter, it may be easier for a condominium corporation to focus on “nuisance” rather than “danger” as demonstrated in the only two (2) successful dog removal cases at the CAT (see: TSCC No. 2370 v. Chong et al.; HSCC 490 v. Paikin). 

Durham Condominium Corporation No. 142 v Glenn Auer - CV-19-00615971-0000 

Summary: Court orders are serious. An owner can be jailed if they do not comply with a court order. 

Mr. Auer was a unit owner in DCC 142. DCC 142 brought an application that alleged he was harassing the manager and his neighbours. Mr. Auer consented to a judgment that he would stop the harassment. Two years later, DCC 142 alleged that the harassment had started again. So DCC  142 made a motion to the court to have Mr. Auer found in contempt of the order to which he consented. 

A contempt motion is very serious because court orders are serious and compliance is not optional. Contempt is considered a “quasi-criminal offence” because it is dealt with in the civil court but can result in criminal-like remedies, such as a fine or imprisonment. Because of the seriousness of a finding of contempt against Mr. Auer, the court gave him opportunities to retain a lawyer and defend himself. However, notwithstanding the very serious contempt motion that had been brought, DCC 142 alleged that Mr. Auer’s contempt-worthy conduct was continuing! 

At one juncture, the court told DCC 142’s lawyer and Mr. Auer to appear for a hearing and to be prepared to make submissions as to whether Mr. Auer should not immediately be jailed. Mr. Auer did not show up for the hearing, a warrant was issued for his arrest, and Mr. Auer thereafter spent approximately five (5) days in jail. 

When Mr. Auer was released, the matter came back before the court. Auer was ordered to sell his unit and to pay DCC 142 its costs of the motion. We argued that Mr. Auer should spend further time in jail, but the court declined to order further jail time because the presiding judge expressed a concern that further jail time might slow the process of Mr. Auer selling his unit and vacating the property.

Sarros v. York Region Standard Condominium Corporation No. 1445, 2022 ONSC 5346 

Summary: Mischaracterizing items as “seasonal furniture” will result in the CAT ordering those items removed. Appeals from the CAT only deal with questions of law. 

Every now and then, condominium owners like to get cheeky when it comes to their interpretation of the rules. In Sarros v. YRCC 1145, the Condominium Authority Tribunal (CAT) considered whether gym equipment could be understood to be “seasonal furniture” for the purposes of a rule regulating what  could be placed on balconies. The CAT reasonably found that the gym equipment, specifically a structure for storing barbells and other weight-training equipment, was not seasonal furniture and had to be removed. It did not award costs to the Corporation even though it was successful. 

The owner appealed the CAT’s order to the Divisional Court on the basis that it allegedly misapprehended material evidence and made a mistake in relying on a Google search that was not a part of the record of evidence at the hearing. This all began when the owner, who happens to be a lawyer, decided to place gym equipment on his balcony to store weighttraining equipment. The Corporation’s rules strictly provided that only seasonal furniture was permitted on balconies, however, it did not define what seasonal furniture was. 

When the owner was advised by the Corporation that he was in breach of the rules, he attempted to comply by “converting” the structure into seasonal furniture “by  adding a piece of wood and hanging flowers and Christmas lights from it.” 

During the original CAT hearing, the owner used the definitions for “furniture”, “seasonal”, and “table” to make his case, but not the phrase “seasonal furniture”. The Corporation submitted that a Google search suggested that seasonal furniture included things like tables and chairs. The owner argued that a Google search was not conclusive on the question but did not object to the CAT member considering it. With respect to the first ground of appeal, the Divisional Court held that it was clear that the CAT member “rejected the appellant’s argument that by adding a piece of wood to the Structure it became a table and by using it to hang flowers or lights, it became “seasonal furniture.” Therefore, the member did not misapprehend material evidence. 

As for the second ground of appeal, the Divisional Court noted that the owner did not object to the use of the Google search at the CAT hearing and commented that “it was open to the appellant, who is a lawyer, to insist on the Google search result being included in the record” and that the “argument should not be raised for the first time on appeal.” 

The Divisional Court ordered the owner to pay the Corporation $3,000 in costs. It is likely that the costs far exceeded what was awarded, but unfortunately even in a situation where an owner is trying to be clever, condominiums will have to incur costs to ensure compliance with their rules.