Legal

September 9, 2024 Published by Toronto and Area Chapter - By Joy Matthews, Angie Tracey

Decisions From The Courts

From the Summer 2024 issue of CCI Toronto Condovoice Magazine.

Shared facilities dispute • Owners and their disruptive tenants • Pet accomodation clarified • Noise disputes clarified

Shared Facilities Dispute: Carleton Condominium Corporation No. 519 v. Ottawa-Carleton Standard Condominium Corporation No. 656, 2023 ONCA 848.

The recent Ontario Court of Appeal case, Carleton Condominium Corporation No. 519 v. Ottawa-Carleton Standard Condominium Corporation No. 656 held that fairness will trump over condominium documents with respect to shared facilities disputes and upheld the decision and reasoning of the Superior Court of Justice.

Carleton Condominium Corporation No. 519 (“CCC 519”) brought an application against Carleton Condominium Corporation 656 (“CCC 656”) and Carleton Condominium Corporation 522 (“CCC 522”) to determine whether they have a legal obligation to share the replacement costs of an “electric switchgear” (“ESG”) located on the lands of CCC 519. The ESG receives, manages, and distributes power supply to all three condominiums. Although each condominium receives a benefit from the ESG, historically, CCC 519 has borne all repair and maintenance costs.

The dispute arose when the ESG urgently needed to be replaced, which would have caused the relevant condominiums to lose power and heat. CCC 519 was ready to proceed with the replacement, provided that such costs be shared by all three condominiums on an equitable basis yet only one of the corporations, CCC 522, conceded that it was responsible to pay for its proportionate share of the ESG.

Unfortunately, CCC 656 did not agree. CCC 656 argued that it is not responsible for any part of the ESG repair and maintenance costs because:

1. CCC 656’s declaration does not require or authorize it to do so given that the equipment is located on CCC 519’s lands; and,
2. CCC 519’s declaration requires it to maintain its common areas where the equipment is located.

CCC 519 took the position that CCC 656 must contribute to the replacement costs based on the doctrine of unjust enrichment (e.g. when one party is enriched at another party’s expense), by considering the following issues:

1. Has there been an enrichment?
2. Has there been a corresponding deprivation?
3. And, is there a juristic reason for the enrichment? (i.e. a reason/explanation for the enrichment that makes it fair and “ just”).

The lower court judge found that all elements of unjust enrichment were satisfied:

1. CCC 656 would be enriched by the benefit of continuing to receive electricity through the new ESG.
2. CCC 519 would suffer a corresponding deprivation as a result of not receiving any payment.
3. There is no juristic reason for the enrichment.

The Court of Appeal outright rejected CCC 656’s assertion that it did not receive any benefit from the ESG since it was simply not true. The ESG must be functioning properly in order for CCC 656 to receive an electrical supply, which is an obvious benefit to CCC 656. The appellate judge did reconsider the third element though, which was whether the application judge was incorrect in finding no juristic reason for the enrichment.

The appellate judge found that the lower court judge appropriately applied the two-step framework for determining whether there would be a juristic reason for unjust enrichment and made no error in his application of the facts to the law.

Again, both juristic reasons advanced by CCC 656 were rejected.

Takeaway #1: Fairness Trumps “Silent”
Documents Reasonableness prevails when documents are silent. When corporate documents are silent with respect to repair and maintenance issues, it is not always reasonable to conclude that there is no obligation. In this case, although the declarations of CCC 519 and CCC 656 did not expressly address the repair and maintenance of the ESG, there is also a lack of provision that requires CCC 519 to supply benefits to a third party, which in this case would be CCC 656.

Takeaway #2: Absurd Outcomes Should Not Be Permitted in Condos
Reasonableness also prevails when documents do not even exist. Although unsuccessfully argued, the absence of a cost sharing agreement between the condominiums does not entitle CCC 656 to receive the benefit from CCC 519 with no obligation to contribute to costs. Rather, the absence of a cost sharing agreement means that there is no contractual obligation for CCC 519 to continue to supply the benefit to CCC 656 free of charge – an absurd result as it would be to the deteriment of all parties as it would result in no power or heat.

Owners and Their Disruptive Tenants: Toronto Standard Condominium Corporation No. 2637 v. Valerio et al.

Toronto Standard Condominium Corporation No. 2637 (“TSCC 2637”) brought an application to the Condominium Authority Tribunal (“CAT” or the “Tribunal”) regarding a tenant’s unreasonable noise or nuisance and cannabis smoking in the condominium, contrary to the provisions of the governing documents. Not surprisingly in these types of cases, the tenant denied all allegations and blamed others on the property.

Although the owner attempted to assist TSCC 2637’s enforcement, by filing an application with the Landlord and Tenant Board (“LTB”), the CAT found that it was not sufficient in these circumstances for an owner to merely initiate eviction proceedings.

TSCC 2637 did not state what other steps it expected the owner to take, but the CAT nonetheless found that it is still incumbent upon the owner to take all reasonable steps to ensure that her tenant complied with the Condominium Act, 1998 and governing documents.

Issue #1: Noise and Nuisance
Although the tenant claimed they were being blamed for noise created by others, this was not supported by evidence. TSCC 2637 submitted several email complaints from residents with respect to playing loud music and karaoke singing that emanated from a unit from 12 midnight to 5:00 a.m. These complaints were supported by ten (10) incident reports where security investigated noise from the unit during the period of January 2022 to September 2023. When security knocked on the tenant’s door to obtain compliance, the tenant agreed to lower the volume some of the time, yet at other times, either refused to open the door or refused to lower the volume.

The CAT rejected the tenant’s argument that because City of Toronto’s Noise By- Law restricts loud sounds between 11pm to 7am, it is inappropriate for security to knock on his door outside of these hours.

Despite the tenant’s arguments, the CAT found that the tenant had created unreasonable noise and nuisance.

Issue #2: Cannabis Smoking
The tenant claimed that he was being wrongly blamed for smoke and odour created by cannabis smoking in the condominium.

The CAT rejected this claim and found that the tenant was responsible based on an email exchange in which the tenant admitted that he was unaware that he could not smoke on the balcony, and subsequent complaints that identified his unit as the source of cannabis smoke.

Ultimately, the CAT found that the tenant failed to comply with TSCC 2637’s governing documents and the tenant was ordered to comply with the provisions that relate to unreasonable noise and nuisance and cannabis smoking. The tenant was also ordered by the Tribunal, to immediately cease smoking cannabis in the unit and/or on the balcony, and to cease creating unreasonable nuisance in the form of noise.

Takeaway:
What are reasonable steps to take in these circumstances? Each case is different of course, however, we see that there are general principles that should be followed, particularly with respect to communication. In particular, the owner was lacking in their communication with TSCC 2637, which is reflectedd in the CAT’s order for the owner to:

• Provide TSCC 2637 with a written update of any action taken as a response to any further complaints regarding noise or cannabis smoking by her tenant, and
• Provide TSCC 2637 with written status updates on the LTB application.

Overall, the tenant and owner were jointly and severally responsible for compensation to TSCC 2637 in the amount of $508.50 for a penalty, $200.00 for Tribunal filing fees as well as legal costs in the amount of $5,000.00.

Pet Accomodation Clarified: Metropolitan Toronto Condominium Corporation No. 584 v. Kakish, 2023 ONCAT 201

Metropolitan Toronto Condominium Corporation No. 584 (“MTCC 584”) filed an application with the CAT to request an order for the permanent removal of the owner’s dog from the unit due to its “No Pet Rule”. The owner sought an exemption from this rule on the basis that she should be granted an accommodation under the Human Rights Code (“the Code”).

Unfortunately, in this case, the solution became the problem. Instead of obtaining an order from the CAT to permanently remove the dog, the Tribunal clarified the application of the Human Rights Code regarding dog accommodation, possibly making it less strict to restrict.

In response to the first demand letter from MTCC 584’s solicitor, the owner’s daughter sent a letter advising, “Rocky”, is a therapy dog who is “vital” to the owner’s mental health. MTCC 584 replied requesting supporting medical information, specifically “a doctor’s note that provides a diagnosis of your medical condition, with confirmation that your medical condition constitutes a mental disability within the meaning of the Code, and further, confirmation that the use of a dog has been prescribed as a therapy for the medical condition”.

The owner provided a total of three (3) medical letters, each with increasing levels of detail after MTCC 584 requested additional particulars:

Letter #1:
Received by the corporation from the owner’s treating doctor advising the dog acts as a service dog for her, is a necessary part of her life, and that she has developed anxiety and insomnia since being informed that the dog must be removed.

Reply:
MTCC 584 rejected the owner’s request for accommodation on the basis that the medical letter did not indicate she “suffered from a condition amounting to a mental disability”.

Letter #2:
The owner submitted a second medical letter which advised that the owner developed significant anxiety and depression and had difficulty sleeping and carrying out daily life activities. The thought of losing the dog has severely impacted the owner’s mental health, such that she has started medication which may have side effects.

Reply:
MTCC 584 denied the accommodation request because the letter “does not state the Respondent has a mental disability nor that the dog was prescribed as part of a therapy for the medical condition”.

Letter #3:
A third medical letter advised that the owner suffers from anxiety and depression, and that her dog is a recognized support animal that helps decrease her anxiety and depression. Further, the owner’s mental health problems have been exacerbated by threats to make her remove the dog and caused her to need medication.

Reply:
Again, MTCC 584 rejected the accommodation request, stating that the letter is similar to the two previous letters.

During the hearing, the owner provided a fourth (4th) letter, this time from her treating psychiatrist. MTCC 584 took the position that this letter “also does not state that the respondent has a disability within the meaning of the Code”.

Ultimately, the CAT Tribunal disagreed with MTCC 584’s assessment of the letters and found that the owner was entitled to be granted the accommodation to keep Rocky in her unit.

Takeaway:
The Tribunal found that MTCC 584 took a narrow approach and was “quibbling over semantics”. It was not necessary for the letters to explicitly state the words “disability”, “mental impairment”, or “mental disorder”, nor did they need to specifically prescribe Rocky as a support animal.

Rather, MTCC 584 should have referred to the Ontario Human Rights Commission’s policy 13.7 for guidance about the duty to accommodate, which confirms the type of information that accommodation seekers may generally be expected to provide in support of their request. This information may include confirmation that “the person has a disability or mental condition”.

MTCC 584 also should have looked to the definition of “disability” under Section 10(1) of the Code. The definition of “disability” includes “a condition of mental impairment or a developmental disability” and “a mental disorder”. It would be sufficient for the letters to set out the owner’s mental health conditions and diagnosis as it is a common understanding that anxiety, depression, and adjustment disorder are recognized as “mental disorders” or “mental impairments” which impact a person’s functioning. Additionally, the letters clearly described the benefits of having Rocky continue to live with the owner and how his removal would be detrimental to her mental health. The word “prescribed” does not need to be stated explicitly – it can be inferred from the letters that Rocky is vital to managing the owner’s mental health conditions and symptoms.

Noise Disputes Clarified: Kimel v. Toronto Standard Condominium Corporation No. 2026, 2023 ONCAT 186

The owner filed an application with the CAT against Toronto Standard Condominium Corporation No. 2026 (“TSCC 2026”) due to noise and vibration caused by the operation of garage doors below the owner’s unit. The Tribunal determined that the noise and vibration caused unreasonable interference with the owner’s enjoyment of her unit, such that it constitutes a nuisance, annoyance, or disruption that must be alleviated. The Tribunal also considered how to alleviate the noise and vibration, which required TSCC 2026 to carry out the most compelling recommendation in the engineers’ reports.

TSCC 2026 took the position that the decibel level in the owner’s unit caused by the operation of the garage doors is at a level that is considered normal for the interior of a unit. Conversely, the owner took the position that, despite the decibel level, the noise and vibration rise to the level of nuisance due to the nature and frequency. It occurs every few minutes of every day for approximately 15 seconds per occasion.

Each party submitted into evidence a report prepared by qualified engineering consultants. The Tribunal found that the reports demonstrate that the noise is beyond a level that is reasonably expected to be experienced within a residential unit. Some noise from the operation of building systems is expected, but it should not substantially and regularly exceed background noise.

TSCC 2026 argued that the owner should be required to tolerate the noise and vibrations because these conditions were disclosed in the declarant’s disclosure statement when the owner purchased the unit. The Tribunal rejected TSCC 2026’s position as the owner was not the original purchaser of the unit, and therefore did not receive the developer’s disclosure statement.

In assessing whether the noise and vibration rise to the level of being a nuisance, the CAT Tribunal considered the following criteria:

1. it must interfere with the reasonable use and enjoyment of property, and
2. it must constitute a substantial and serious interference, taking into account factors such as its nature, location, duration, frequency, and effects.

The Tribunal concluded that the noise and vibration are unreasonable and constitute an annoyance, if not a nuisance. TSCC 2026 was ordered to take steps to remedy the causes and to reimburse some of the owner’s legal costs and related expenses.

Takeaway: Tribunal’s Jurisdiction – Can it Hear Noise?
The significance of this case relates to the preliminary issue and whether the Tribunal has jurisdiction to hear this case, relating to alleged nuisances, annoyances, and disruptions, under O. Reg 179/17:

1. (1) The prescribed disputes for the purposes of subsections 1.36 (1) and (2) of the Act are,
(c.1) subject to subsection (3), a dispute with respect to subsection 117 (2) of the Act or section 26 of Ontario Regulation 48/01 (General) and

(d) subject to subsection (3), a dispute with respect to any of the following provisions of the declaration, by-laws, or rules of a corporation:

(iii.1) Provisions that prohibit, restrict or otherwise govern the activities described in subsection 117 (2) of the Act or section 26 of Ontario Regulation 48/01 (General).

(iii.2) Provisions that prohibit, restrict or otherwise govern any other nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation.

If the Tribunal did not have jurisdiction, the case would have been dismissed and parties would have needed to hear the matter at a Superior Court of Justice.

However, the issue was raised due to two similar cases (Brady v. Peel Condominium Corporation No. 947, 2023 ONCAT 8 (“Brady”) and Di Domenico v. Halton Condominium Corporation No. 118, 2023 ONCAT 67 (“Di Domenico”) where owners experienced noise disturbances in their units that were caused by an aspect of the respective plumbing systems. In each case, the Tribunal found that it did not have jurisdiction to address issues relating to repairs of the common elements.

Ultimately, the Tribunal found that the present case was within its jurisdiction under Clause 1(1)(d)(iii.2) of O. Reg 179/19 and could be distinguished from Brady and Di Domenico. Furthermore, the dispute was allowed under Clause 1(1) (d)(iii.2) because it related to a provision in TSCC 2026’s Declaration prohibiting conditions that would give rise to an unreasonable interference with use and enjoyment of the property, and that such interferences include nuisances, annoyances, and disruptions.

“Condition” versus “Activity” – Key Issue
The CAT characterized the noise and vibration from the garage doors as a “condition” because it was caused by the regular use of the common elements, as opposed to some other “activity”. As a result, this dispute was not within the purview of Section 117(2) of the Act, which is limited to any unreasonable noise that is a nuisance, annoyance, or disruption to an individual in a unit or on the common elements that is caused by carrying on an activity or permitting an activity to be carried on in a unit or on the common elements.

Although Brady also had a similar provision in its Declaration, the wording was not broad enough to allow the case to proceed under Clause 1(1)(d)(iii.2) of O. Reg. 179/17. In Brady, the Declaration required the condition to originate from within a unit: “no condition shall be permitted to exist in any unit which will unreasonably interfere with use or enjoyment of the common elements and/or other units”.

Conversely, the provision in TSCC 2026’s Declaration prohibits any condition which causes unreasonable interference with the use and enjoyment of the common elements and/or units: “no condition shall be permitted to exist, and no activity shall be carried on, within any unit or upon any portion of the common elements that… will unreasonably interfere with the use and enjoyment by the other owners of the common elements and/or their respective units”.

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Joy Matthews, Matthews Condo Law

Angie Tracey, Matthews Condo Law