Legal

December 19, 2023 Published by British Columbia Chapter - By James (Jim) Davidson

Condo Cases Across Canada

From CCI BC Strata Connection Magazine, Volume 01, Fall 2023

Condo Cases Across Canada is an on-line library of condominium decisions from across Canada – published by the Canadian Condominium Institute, National Chapter. CCAC includes summaries of the cases, and pdf copies of the actual cases themselves. I’m delighted to be the author of the case summaries. Each quarter, I select a handful of cases that I hope readers will find interesting. [I don’t provide summaries of every decision rendered.]  The full, latest issue – Part 83 – is now available on-line at the CCAC website: www.condocases.ca.  Note to readers: In Ontario, strata corporations are “condominium corporations”. 

Williams v. British Columbia (Civil Resolution Tribunal) (B.C. Supreme Court) February 17, 2023

Court grants petition for judicial review of a decision of the B.C. Civil Resolution Tribunal. Matter referred back to Tribunal for reconsideration.

The B.C. Civil Resolution Tribunal had dismissed the petitioners’ complaints about noise emanating from a neighboring unit in the strata corporation. In doing so, the Tribunal held that the strata corporation had properly investigated the complaints and had properly enforced its by-laws. The Tribunal also held that the strata corporation’s investigation process had been fair and reasonable.

The Court held that the Tribunal’s conclusions (noted above) were patently unreasonable, for the following reasons:

• The Tribunal had relied on a factual finding that was not supported by the evidence before it, namely the finding that the strata corporation had provided the petitioners with contact information for the strata council members. [The petitioners were not given contact information for the current members of the strata council.]
• The Tribunal’s conclusion that the strata corporation had properly investigated the complaints was predicated on a misapprehension of the evidence.
• There was no “rational or tenable line of analysis for the CRT’s conclusion that the Strata properly enforced the Bylaws”.
• The Tribunal had determined that the noise was not unreasonable even though this issue was not before the Tribunal. This breached the Tribunal’s duty of procedural fairness in that this “deprived the petitioners of the opportunity to address the ultimate issue that the CRT determined against them and relied on in dismissing the dispute”.

The Court therefore granted the petition and remitted the matter back to the Tribunal for reconsideration.

Feltmate v. Mansour [File No. CEL-02484-21RV] (Ontario Landlord and Tenant Board) May 30, 2023

Tenancy terminated for violation of condominium corporation’s occupancy standards by-law

The condominium corporation had passed a by-law restricting occupancy of the units to the occupancy load permitted by the Ontario Building Code (which restricted occupancy to two occupants per one-bedroom dwelling). The tenants were not in compliance with this restriction. As a result, the landlord applied to terminate the tenancy on the grounds that this violation substantially interfered with the landlord's lawful right, privilege or interest. The Board had previously ordered that the tenancy be terminated, and the tenants asked for a review of that order. This request was denied. The Board said: An owner of a condominium who has tenants who are not complying with the by-laws of the Condominium Corporation may face consequences from the Corporation if the situation is not remedied. In this case, the Corporation has warned the owner but has not taken action against the owner because the owner is attempting to remedy the situation.

I find the Tenant's violation of the by-law and the consequences to the Landlord, are substantially interfering with the Landlord's lawful right, privilege or interest. Therefore, I find the tenancy shall be terminated based on the notice served to the Tenants and their failure to remedy the issue.

Ambrose v. Campeau et al. (Condominium Authority Tribunal) June 5, 2023

Landlord of noisy tenant ordered to compensate neighboring landlord for lost rent.

The Tribunal held that a landlord’s tenant was causing unreasonable noise which was a significant disturbance to tenants in a neighbouring unit. The landlord of the neighbouring unit suffered lost rent due to tenants deciding to leave because of the disturbing noise. The landlord of the noisy tenant had applied to the Landlord and Tenant Board for eviction of the noisy tenant, but had not pursued this remedy with reasonable haste.

The Tribunal held that the landlord of the noisy tenant had not taken reasonable steps to ensure that his tenant complied with the Condominium Act and the condominium’s governing documents, and ordered him to pay compensation in the form of the lost rent to the other (applicant) landlord. The Tribunal also expressed concern about the efforts of the condominium corporation in the matter. The Tribunal said: I am concerned that PSCC 19 may also have failed to be more engaged in dealing with what is clearly a significant problem. Although the Condominium joined the case as an intervenor, it has not participated or responded to requests for information. Condominiums have a positive obligation to ensure that the Act, declaration, by-laws and rules are followed, particularly if others are impacted by non-compliance.

The Tribunal ordered the condominium corporation to meet with the two landlords to explore possible measures to be taken to help remedy the noise problems. The Tribunal also said:  PSCC 19 is further directed to investigate the complaints made by Ms. Ambrose and to ensure that it uses its powers to ensure that Mr. Campeau and Mr. Bedard are in compliance with the Act, the declaration, bylaws and rules. PSCC 19 shall provide to Ms. Ambrose copies of any communications relevant to its investigation.

James (Jim) Davidson, LLB, ACCI, FCCI,
Davidson Houle Allen LLP Condominium Law, Ottawa

Jim has been practicing condominium law for over 30 years. He represents condominium corporations, their directors, owners, and insurers throughout Eastern Ontario. His experience also includes building deficiencies, shared property interests, co-ownership and construction law. Jim is proud to be an associate (ACCI) and also a felow (FCCI) of the Canadian Condominium Institute. Jim is much sought after in the condominium community, and has been invited by many prominent organizations to speak about condominium law. These include lectures at events by CCI, ACMO, The Law Society of Upper Canada, the Ontario Bar Admission Course, the Ottawa Region Landlords Association and various organizations of insurance adjusters.