Legal

June 22, 2023 Published by Toronto and Area Chapter - By Andrea Lusk, An Nguyen

Decisions From the Courts

From the Summer 2023 issue of CCI Toronto Condovoice Magazine.

Corporation Denies Access To Records; Parking Your Work Truck At Home, And More...

Sharma v. Toronto Standard Condominium Corporation No. 2510, 2023 ONCAT 39
Mr. Sharma is a unit owner and director of Toronto Standard Condominium Corporation No. 2510 (“TSCC 2510”). He was elected as a director in September 2022. In October 2022, he submitted a request for an extensive list of records to TSCC 2510. In its response form, the Corporation denied access to some of the requested records because Mr. Sharma was not entitled to records relating to specific unit owners under section 55(4)(c) of the Condominium Act, 1998 (the “Act”).

In response to being denied the records, Mr. Sharma filed an application with the Condominium Authority Tribunal. Mr. Sharma argued that he is entitled to the records about other unit owners because he is a director and needed that info to fulfill his duties under section 37 of the Condo Act. He believed that the Corporation’s board (except him) was “incompetent” and “untrustworthy”. Mr. Sharma sought an order from the Tribunal granting him access to TSCC 2510’s records.

The Tribunal considered a preliminary question – does the Tribunal have jurisdiction to adjudicate a dispute where “a single director wants access to records to which owners do not have access, so that[a] director may fulfill their duties under section 37 of the Act?”

The Tribunal concluded that it did not have jurisdiction because the request for records was not solely related to Mr. Sharma’s interest as a unit owner. The Tribunal reviewed the law:

• Section 55 of the Act outlines which records must be kept by a condominium corporation and those that unit owners are entitled to access.
• Section 13.3 of Regulation 48/01 sets out who can request access to a corporation’s records and for what purpose. The right to examine or obtain a copy of a record applies to an owner, purchaser or mortgagee of a unit and the request is solely related to that person’s interest as a owner.
• The Act and Regulation 179/17 provides that the Tribunal’s jurisdiction on records is limited to owners seeking access to records solely related to their interest as a unit owner, and not as a director to fulfill duties under section 37 of the Act.

Mr. Sharma submitted that he wanted to proceed with his application as a unit owner, and not a director. But when the Tribunal reviewed the substance of Mr. Sharma’s application and submission, it found that Mr. Sharma filed his application to fulfill his duties as a director. He made repeated requests for the board to access to all TSCC 2510’s records to fulfill his duties under section 37 of the Act. The application was dismissed.

Takeaway – Individual directors cannot access records that unit owners do not have access to or use the Tribunal to circumvent the Act by claiming that records are required to fulfill director’s duties.

Simcoe Condominium Corporation No. 104 v. Leary, 2023 ONCAT 52
A unit owner leases her unit and outdoor parking space to tenants. Since the beginning of their lease, the tenant has parked his truck in the rented parking space. His truck has advertisements or signs on the outside of the truck and the cab of the truck contains tools and equipment.

Simcoe Condominium Corporation No. 104’s (“SCC 104”) Rule 4 provides that “no licensed commercial vehicle may be parked in any spot in the condominium, nor can any vehicle parked on the condominium property have advertisements or signs affixed to it.”

The unit owner and the tenants argued that the rule is unreasonable and being enforced inconsistently, and the Tribunal should order that it be repealed.

Under section 58(1) of the Act, rules of a corporation must be made for one of the two purposes:

1. To promote the safety, security or welfare of the owners and the property and assets of the corporation; or
2. Prevent unreasonable interference with the use and enjoyment of units, the common elements or assets of the corporation.

The Tribunal considered whether the rule complied with section 58(1) of the Act under each subcategory:

• Safety, security or welfare – No risk was identified as justification for the rule. No issues affected the common elements or other residents since the truck was parked in a separate driveway to a free-standing unit.
• Unreasonable interference – To assess whether an interference is unreasonable, the Tribunal could consider factors like, the “severity of interference, the character of the neighbourhood, the impact of the interference, and whether the community should be expected to tolerate the interference.”

The Corporation argued that the rule was enacted to preserve an aesthetically pleasing “look and feel” that is consistent with the neighbouring community. The owner and tenants argued that the rule is “out of step with today’s work realities [and] that it was not uncommon for people to drive work vehicles.”

The Tribunal acknowledged that the character of the neighbourhood is a valid consideration, but it concluded that it was only one factor that did not outweigh all other factors. It found that a commercial vehicle may affect the aesthetic of the corporation in some circumstances, but the impact or interference was “trivial in nature” and the community should tolerate it.

Based on the evidence, the Tribunal could not conclude that the parking of a commercially licensed truck or a vehicle with advertising interferes with anyone’s ability to use or enjoy the common elements or amenities or to enjoy, use or access their own unit.

The Tribunal ordered SCC 104 to not enforce (parts of) the rule against the owner and the tenants. The Tribunal also pointed out that it was open to the Corporation to amend the rule to fall within the parameters of section 58(1) of the Act.

Takeaway – Unlike a declaration, rules must be reasonable. What constitutes reasonable or unreasonable interference will depend on the community and the factors considered by the Tribunal in the above case. Rules must address actual interference and the severity must be more than trivial. Boards should carefully consider whether proposed or old rules fit within the requirements of section 58(1) of the Act in the context of their community. Boards should consider that just because a rule has been around since inception does not mean that its application is still relevant or justified in the present community.

Toronto Standard Condominium Corporation No. 2804 v. Micoli et. al., 2023 ONCAT 21
The Corporation brought an application to the Tribunal regarding a tenant’s nuisance, annoyance, objects left in hallways, disturbance of staff, breach of rules and COVID 19 protocols and frequent noisy incidents in the unit and on the common elements. The incidents were serious enough to cause concern amongst neighbours.

The tenant sought two adjournments of the hearing – one because he intended to vacate the unit and another because criminal charges had been laid against him and his lawyer argued his rights in the criminal proceeding could be affected by the Tribunal proceeding. The Tribunal denied both adjournment requests.

With respect to the claims of nuisance, it was accepted by the Tribunal that the tenant treated the condo staff as his own personal food delivery service and that he verbally abused the concierge when he refused to bring his food delivery up to the unit. It was also established that the tenant would leave his food garbage outside the unit in the common element hallway. The Corporation charged him for cleaning.

The Corporation also provided evidence of the noise, nuisance and harassment of staff by the tenant, which was accepted by the Tribunal. The tenant’s representative made several objections to the Corporation’s evidence – that reports were created by staff, that no one talked to the tenant to verify complaints, that some of the incidents reported were minor or related to another occupant of the unit or exaggerated.

The Tribunal found that there was more verifiable and credible evidence supporting the Corporation’s position and that the inclusion of minor complaints went to show how the conduct of the tenant was a habitual nuisance. Despite being informed of the incidents, the owner/landlord took no steps to obtain his tenant’s compliance or have him evicted from the property. He “relied on the Corporation to prosecute the Application for his benefit.”

The Tribunal ordered that both the tenant and owner ensure that all conduct in the unit and on the common elements which creates noise, nuisance or interferes with other owners or residents’ ordinary use and enjoyment of the property cease. This was extended to any guests at the unit. The Corporation sought recovery of over $45,000 including legal fees, tax and disbursements under its declaration indemnification provisions.

The Tribunal will generally reimburse a successful party its $200 filing fee and otherwise order reimbursement of legal fees considering its rules of practice. It may also award damages of up to $25,000 relating to the non-compliance. The Tribunal awarded legal fees to the Corporation of $8,500, payable by the owner.

The Tribunal awarded damages to the condo of $18,000, payable by the owner and tenant jointly and severally. In making the award for legal fees, the Tribunal considered that there were several different steps presented for which costs were claimed, but it could not be determined from the Corporation’s lawyer’s “bill of costs” what was spent on which step and therefore whether it was appropriate to award costs for the step.

On the damages award, the Tribunal considered that it was the conduct of the tenant and occupant that caused the breach. It was content to award damages payable by either or both owner and tenant. However, about $28,000 of the legal fees claimed were incurred in the one year period before the Tribunal proceeding and was undertaken by a senior lawyer. Again, the bill of costs was not sufficiently detailed to show how time and costs were allocated between different legal steps.

The Tribunal considered the “lack of certainty in the bill of costs” and weighed the principles of proportionality and causality and awarded the condo about 65% of its pre-hearing costs as damages.

Takeaway – Past Tribunal cases on rule violations have been dismissed for lack of evidence. In this case, the Tribunal found the Corporation’s evidence “credible, consistent and fulsome” to make a finding that the tenant was a “highly disruptive presence.” There were numerous security reports, several witness statements from neighbors and staff and video and photographic evidence of all the nuisance complained of. When it comes to costs, we see progress in Tribunal awards, which can be split between actual legal fees and “damages.” More detail in the condo’s bill of costs may have resulted in better recovery.

Moran v. Peel Condominium Corporation No. 485, 2022 ONSC 6539
A unit owner submitted a request to renovate the kitchen and washroom in his unit and to use the service elevator to move construction material. The Corporation approved the request provided the project was completed in four days and elevator use was restricted to two occasions for 20 minutes each.

The owner requested more time to complete the project and to use the service elevator for a longer period given the complexity of the renovation work, but the Corporation continued to deny the request without justification. The owner brought an oppression application to Superior Court under s.135 of the Act against the Corporation because it continued to restrict construction work and elevator access even after the owner became homeless as the unit was not habitable.

The court determined that the Corporation acted oppressively. The owner had a reasonable expectation that the Corporation would consider his renovation request fairly and provide timely decisions, but the Corporation ignored communications, delayed responses and did not fairly consider the owner’s situation. The court found that the Corporation maintained an arbitrary position that the service elevator could be reserved only for 20 minutes at a time. Evidence from the owner’s contractor was that this position was not comparable to any other neighbouring condominium. There were no rules or policy that supported the Corporation’s position.

The court awarded the owner special damages of about $36,000 for the cost of moving, storage, renting alternate accommodation and amounts relating to the construction not being completed. The court also awarded the owner costs of $15,000.

Takeaway – What was estimated as a 2-week construction project took over 10 months to resolve through the court process. Owners’ requests cannot be determined arbitrarily and – especially in the absence of a rule or policy – cannot be unreasonable. While there is great discretion to the board on the management of the corporation and common elements, the realities of the community, of a multi residential setting and of managing, the area containing a person’s private dwelling must be balanced.

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Andrea Lusk Lawyer, Gardiner Miller Arnold LLP
An Nguyen Lawyer, Gardiner Miller Arnold LLP