Legal

November 26, 2024 Published by Toronto and Area Chapter - By Bharat Kapoor, Julia Lurye

Decisions From The Courts

From the Fall 2024 issue of CCI Toronto Condovoice Magazine.

Owner/hoarder condemned by court for allowing dangerous conditions to exist in his unit • Owner required to cease threatening behaviour • Court finds no-pet rule reasonable

Niagara North Condominium Corporation No. 127 v Chyplik, 2023 ONSC 4856

Mr. Chyplik, an owner of a unit in Niagara North Condominium Corporation No. 127 (the “Corporation”) was a hoarder and stored excessive materials in his unit, including combustibles, which posed a risk of fire and prevented access to the kitchen, among other dangerous conditions.

Following an inspection by St. Catharines Fire Services, an order was issued against the Corporation and Ms. Chyplik to reduce materials stored in the unit.

Thereafter, the Corporation’s engineers inspected Mr. Chyplik’s unit and identified further dangerous conditions in the unit, including exposed pipe chases and shafts throughout the unit resulting in smoke/odour migration, exposed wiring, renovations undertaken without building permits and excessive piles of items stored throughout the unit, among other things.

The Corporation demanded that the owner comply with St. Catharines Fire Service’s order, rectify the issues identified by the Corporation’s engineers and restore the unit to its original condition.

Unfortunately, the owner failed to make any remediation efforts within a reasonable time. The Corporation commenced a compliance application against the owner pursuant to section 134 of the Condominium Act, 1998 (the “Act”) for an order to remediate the dangerous conditions in the unit. The Court found that the conditions in the owner’s unit were likely to increase the risk of fire, hazard and risk of injury to others. The Court noted that the Corporation itself is potentially liable for such hazards if it did not take steps to remediate them. The Court condemned the owner for not resolving the dangerous conditions in his unit and found that the owner was in breach of section 117 of the Act by permitting dangerous conditions to persist in the unit. The Court awarded costs of $7,500 to the Corporation on a full indemnity basis.

Toronto Standard Condominium Corporation No. 1899 v Devlin, 2024 ONSC 2063

By way of background, in the spring of 2023, Ms. Devlin, an owner of a unit in Toronto Standard Condominium Corporation No. 1899 (the “Corporation”), started to disturb, threaten, intimidate, and harass residents, staff and the board of directors of the Corporation. The Corporation became concerned and commenced a compliance application pursuant to section 134 of the Condominium Act, 1998 (the “Act”) for an order requiring Ms. Devlin to cease any threatening or harassing behaviour. The Corporation was successful in obtaining the compliance order against Ms. Devlin.

Unfortunately, Ms. Devlin breached the Court’s order by assaulting a neighbouring unit’s housekeeper with a sharp object, causing her bodily injury.

The Court noted that section 117 of the Act obliged the Corporation to ensure that no unsafe condition, or activity that is likely to cause harm to persons or property, is permitted to continue in a unit or the common elements. Further the Court noted that if a person does not abide by the terms of a compliance order, that is strong evidence that they are not willing to abide by the legal obligations that attach to living in a condominium community. How a person responds to a compliance order sheds significant light on whether the Court can expect that person to govern themselves in the future.

As such, the Court found that Ms. Devlin’s presence in the building poses a real and significant threat to the health and well-being of the residents. In the absence of any explanation from Ms. Devlin, the Court found it appropriate to order Ms. Devlin to vacate and sell her unit within 90 days. The Court awarded costs of $20, 174.71 to the Corporation on a full indemnity basis.

York Condominium Corporation No. 327 v Scotti, 2024 ONSC 2044

Mr. Scotti, a resident in York Condominium Corporation No. 327 (the “Corporation”), has schizophrenia. For 25 years, while living in the Corporation, Mr. Scotti managed his mental health with medication. In 2019, Mr. Scotti chose to stop taking his medication. Mr. Scotti’s mental health began to deteriorate, and he started to act out on the Corporation’s property by arguing with residents and making undue noise.

The Corporation became concerned and commenced an application under section 134 of the Condominium Act, 1998 (the “Act”) seeking an order prohibiting Mr. Scotti from residing at the Corporation or entering upon the common elements.

Although the Court found that Mr. Scotti breached the Corporation’s declaration and rules and the Act, the Court was not satisfied that it was appropriate to prohibit Mr. Scotti from residing in the Corporation or entering upon the common elements for the following reasons: (1) Mr. Scotti resided without incident at the Corporation with diagnosed schizophrenia for 25 years; (2) Mr. Scotti’s misconduct was caused by his mental illness; while not an excuse, it certainly served as an explanation; (3) Mr. Scotti has now resumed his medical treatment; (4) Mr. Scotti’s mental health was improving, and he was compliant with his medical regime; (5) Mr. Scotti complied with an earlier order of the Court and the Court was confident that he will do his best to comply with future orders; (6) Mr. Scotti was the sole caregiver for his elderly and ill mother; and (7) the Corporation had a duty to accommodate pursuant to the Human Rights Code.

Accordingly, the Court ordered Mr. Scotti to comply with the Act, and the Corporation’s declaration and rules, but declined to award any further relief to the Corporation.

Waterloo North Condominium Corporation No. 37 v. Baha et al., 2024 ONCAT 131

Ms. Baha and her partner, Mr. Murphy, kept two dogs in their unit, contrary to the rules of Waterloo North Condominium Corporation No. 37 (the “Corporation”) which permitted only one dog per unit.

Initially, the Corporation alleged that the dogs were barking excessively, resulting in unreasonable noise that created a nuisance contrary to section 117(2) of the Condominium Act, 1998 (the “Act”) and the Corporation’s rules.

The dispute later evolved into whether Ms. Baha and Mr. Murphy should have an accommodation pursuant to the Human Rights Code (the “Code”) and therefore be permitted to keep a second dog in their unit. Ms. Baha claimed that the second dog was necessary for Mr. Murphy due to disability.

The Corporation commenced an application before the Condominium Authority Tribunal (the “Tribunal”).

The Tribunal found that the Corporation had failed to establish that the barking from the dogs constituted unreasonable noise or a nuisance. The Corporation’s evidence relied heavily on complaints from a single neighbor, with no corroboration from other residents. Additionally, the Tribunal ruled that Mr. Murphy had provided sufficient medical documentation supporting the necessity for the second dog as a service animal, noting that “dogs are not widgets” and each person’s accommodation needs are unique, in line with the principles of individualization under the Code.

Ultimately, the Tribunal dismissed the Corporation’s application, stating that the Corporation “became too entrenched in its position, too focussed on enforcement of the strict letter of its rules without due regard to the Code accommodation principles.” The Tribunal also noted that the Corporation had failed to reasonably exercise its discretion under its own rules regarding service animals and accommodations.

In addition to allowing both dogs to remain in the unit, the Tribunal awarded $15,000 in damages to Ms. Baha and Mr. Murphy for the stress and disruption they suffered, including their temporary relocation from the unit. The decision underscored that the Corporation’s refusal to accommodate Mr. Murphy’s disability had caused harm and was a violation of the Code.

Chown v. Frontenac Condominium Corporation No. 19, 2024

Ms. Chown was a unit and former member of the board of directors of Frontenac Condominium Corporation No. 19 (the “Corporation”). The Corporation’s bylaws and rules prohibit animals and pets in the building. The Corporation had been a pet free building since 1988.

Ms. Chown challenged the reasonableness of the Corporation’s by-laws and rules prohibiting pets in the building and commenced an application before the Condominium Authority Tribunal (the “Tribunal”).

The Tribunal found that the Corporation’s declaration registered in 1987 was silent on the issue of pets. However, By-law No. 4, registered in 1988, prohibits pets, and Rule 6.1 reaffirmed that “no animals shall be kept or allowed in any unit.” The Tribunal noted that while the declaration did not explicitly prohibit pets, it certainly did not allow them, making it reasonable for the by-laws and rules to govern this issue. In its decision, the Tribunal emphasized the “business judgment principle”.

The Tribunal dismissed the application, concluding that the Corporation’s bylaws and rules prohibiting pets were reasonable given the building’s history, small size of the building, and the board’s duty to manage the property’s affairs in the best interests of the community. The Tribunal also declined to award any costs, noting that both parties had contributed to the lengthy process and that the Corporation’s request for $20,000 in costs was not warranted.

Tartakovsky-Guilels v. York Region Condominium Corporation No. 829, 2024 ON CAT 152

York Region Condominium Corporation No. 829 (the “Corporation”) had a visitor parking policy, which required owners to register a visitor’s vehicle parking overnight up to a maximum of 8 nights per calendar month. Failure to register a visitor’s vehicle may result in the vehicle being ticketed or towed.

A unit owner, Yesenya Tartakovsky- Guilels, commenced an application before the Condominium Authority Tribunal (the “Tribunal”) challenging the enforceability of the Corporation’s visitor parking policy and the Corporation’s classification of a Toyota Corolla as a resident vehicle, preventing it from using the visitor parking.

The Owner argued that the restrictions in the visitor parking policy were not set out in the Corporation’s governing documents, the terms “visitor” or “resident” were not defined in the governing documents, and that there was no rule or even a policy that specifies the criteria under which a vehicle may be deemed to belong to a resident or a visitor.

The Tribunal found that the restrictions found in the Corporation’s visitor parking policy were not set out in the Corporation’s governing documents, being the declaration, by-laws and rules. The Tribunal found that while condominium corporations may adopt rules governing the use of their visitor parking facilities, the Condominium Act, 1998 (the “Act”) does not authorize condominium corporations to impose the types of restrictions set out in the Corporation’s visitor parking policy through a policy or to sidestep the formal requirements of section 58 of the Act. Such rules must be formally enacted, with notice to owners, and must comply with the Act. Since the Corporation imposed parking restrictions through policies without enacting rules, the Tribunal held that the Corporation’s visitor parking policy was invalid and unenforceable.

With respect to the owner’s concerns regarding the Corporation’s classification of the Toyota Corolla as a resident vehicle, the Corporation acknowledged that its enforcement actions had been unreasonable.

As a result, the Tribunal ordered the Corporation to cease enforcing its visitor parking policy unless and until it was formally enacted as a rule.

The Tribunal also ordered the Corporation to reimburse the owner for Tribunal fees in the amount of $200 and for the cost of a parking ticket related to the dispute.

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Bharat Kapoor, Partner, Horlick Condominium Law

Julia Lurye, Partner, Horlick Condominium Law