In a recent decision, the court examined what happens when a condo corporation fails to address a unit owners’ complaints of noise and vibration coming from the common elements.

The owner purchased her unit in 2010. It is the only residential unit on the ground floor next to a garbage room which housed a compactor. The building’s garbage chutes terminated into the garbage room. This created loud and intermittent crashing and tremors in the owner’s unit caused by heavy objects being thrown down the chute and loud noise and vibrations when the compactor motor was operating. The owner reported the issues to the condo in 2011 and by 2012, management conducted an inspection and found the noise to be “unbearable”. Few steps were taken by the condo to address the issues thereafter.

In 2018, new management took over and renewed interest in the owner’s complaints. The condo’s piecemeal efforts culminated in an inspection by the condo’s contractor in 2020 and a proposal for absorption and noise blocking material to be installed around the unit. Although the condo accepted its contractor’s proposal, the work wasn’t carried out and the owner brought an application for an oppression remedy under section 135 of the Condo Act. The condo then refused to carry out its contractor’s proposal when the owner started the court application.

Continue Reading Don’t drag your feet: Maintenance, repair and oppression

Two recent decisions from the CAT deal with parties asking to adjourn their matters for medical reasons.

In Carleton Condominium Corporation No. 132 v. Evans, 2022 ONCAT 38, the condo brought an application to the CAT regarding a parking dispute with an owner  on how their parking impacts snow removal in the condo parking lot. The respondent owner requested that the case be adjourned for two months due to medical reasons. In asking if the two-month adjournment would be an appropriate length of time, the Tribunal asked the owner to provide supporting documents that would demonstrate their medical need. With the owner failing to respond to this request, the Tribunal listed that the following must be established to ensure a fair process:

  • The existence and nature of a disability or medical issue
  • The medical and/or disability related need for accommodation
  • The connection between disability and the requested accommodation
  • The absence of alternative forms of accommodation

Since the respondent only responded to messages about the substance of the dispute but did not produce the requested information to support their medical reasons for seeking adjournment, the motion to adjourn the case was denied.

In Toronto Standard Condominium Corporation No. 2048 v. Mortazavi, 2022 ONCAT 47, the condo applied to the CAT regarding noise disturbances on multiple occasions caused by the owner respondent. The owner requested an adjournment of the case due to medical reasons and provided a doctor’s letter detailing that the accommodation should be granted to avoid exposure to stress and any task which would compromise his treatment.

In response, the condo requested an interim order to prohibit the respondent owner from creating loud noises for the period of the adjournment: Although the interim order was not granted – as it would infer that the Respondent was in fact “actively causing disturbances” without a full determination – the Tribunal emphasized that residents must still comply with the condo’s declaration under section 119(1) of the Condo Act.

With the Tribunal accepting the doctor’s letter, the Tribunal questioned if a three-month adjournment would be appropriate, as the respondent had made similar allegations in two previous cases filed with the CAT. Due to this, the Tribunal ordered that the respondent provide an updated doctor’s letter to address the concern of the adjournment to the fairness and timeliness of the Tribunal process.

These two cases highlight the CAT’s intentions of being fair when resolving disputes while time remains a primary concern. With the CAT’s attempt to balance the interests of the respondent and their medical needs with the efficiency of the Tribunal process, an adjournment may only be granted if the proper documentation is provided. That is, documentation that meets the criteria provided given the circumstances. Unless the CAT is satisfied that the adjournment would benefit the respondent regarding their medical reasons, the motion will not be granted as it would unduly delay the  original application to the Tribunal.

This raises the overarching question… Does the CAT process move too quickly?

(Editor’s note:  This is the first blog post by our paralegal student, Jessica Conforti, who is joining us to complete her work placement.  We look forward to reading more from her! ~ AL)

Two recent CAT decisions highlight scenarios affecting recovery of costs in rule enforcement scenarios:

In TSCC 1767 v. Ahmed et al., the condo repeatedly assured the unit owner it would not seek costs against the owner for his tenants permitting their dog to urinate and defecate on a balcony and failing to clean it up. The owner relied on those statements. The CAT determined that the condo should be bound by its commitments made to the unit owner. Costs were ordered against only the tenants for the costs to clean up the balcony, the condo’s enforcement costs, and the fees paid to the Tribunal.

Takeaway – Your word is your bond. While a condo board may express sympathy for an owner because of a misbehaving tenant, unit owners should be held responsible for their tenant’s conduct from the outset and communications with owners should reflect this. Any statements absolving the owner of his/her responsibility may come back to haunt the condo and limit cost recovery. While the condo obtained a cost award against the tenants in the above case, it would’ve been ideal if costs were awarded against the owner as well and secured by a registered condo lien.

In TSCC 2745 v. Isla et al., a condo sought a compliance order because a tenant’s truck protruded outside the boundaries of the parking unit. By the time of the hearing, the tenant had resolved the issue and the truck was parked almost within the boundary line. Although compliance wasn’t perfect, the CAT determined the vehicle did not interfere with the drive aisle or pose a danger and no compliance order was granted. The CAT cautioned that this matter could’ve been resolved with “both a bit of patience and cooperation” by the condo. The unit owner was ordered to reimburse the condo for its nominal filing fee.

Takeaway – Be reasonable. Condos are entitled and obliged to seek compliance with its governing document but must be reasonable in its enforcement actions. Steps must be appropriate and proportionate to the type of rule violation. Condos should provide fair warning to owners with a reasonable time to comply, especially when there is no urgency or danger to persons or property. Practice patience and cooperation. Reasonable steps will likely help assure a successful result and a more complete cost recovery.

We wrote about condo meetings and election pitfalls in the past (see HERE and HERE) but those articles focused on “what happens at the meeting/election”. A recent Superior Court decision highlights the dangers of poor meeting notices – these meetings were essentially dead before they hit the ground.

Continue Reading Hell hath no fury like condo scorn: avoiding meeting and election woes

The latest issue of our newsletter, Condo Alert! Spring 2022, highlights changes to the CAT’s costs regime, discusses the Superior Court’s treatment of tenants and comments on some other interesting cases.

We hope you are dusting yourselves off after a long winter, and that spring brings warm and sunny days!

Andrea

We were recently successful in obtaining a stay from a civil action involving our condominium client and a neighbouring condominium. The two condos were parties to a Reciprocal Agreement and Indemnity Agreement (the “Agreements”) and after a dispute arose with respect to these agreements, our client submitted the issues to mediation and arbitration. The neighbouring condo responded by bringing a civil action against our client where a corporate unit owner (which happened to own 100% of the neighbouring condominium units) was included as a co-plaintiff.

Section 132 of the Condo Act provides that any disputes “pertaining to agreements between two or more condominium corporations deemed to contain a provision submitting the disputes to mediation/arbitration”. The neighbouring condo and corporate unit owner attempted to avoid mediation/arbitration by arguing that their civil action was based on an economic tort and the corporate unit owner was not a condominium corporation that was party to the Agreements.

Continue Reading No free rides – Piggybacking on court proceedings to avoid mandatory mediation/arbitration is improper

We saw “condo meeting” cases before the court in 2021, seeking procedural directions or injunctions to stop them.

For each case that made it to a judge, more cases were negotiated between condo lawyers and owner lawyers, at a cost to both parties. The negotiations often aimed for meeting transparency from notice through vote tabulation.

The Condo Act is silent on many issues management, boards and owners face in navigating meeting minefields.  We turn to rules of order, past practice and common sense.  Here are some of the common questions and issues we have recently encountered.

Continue Reading Condo meeting minefields

A recent court decision confirmed that disputes between neighbours should not be adjudicated by the courts as the first step (unless there is injury or danger to others or property). Parties should instead pursue mediation and arbitration. We have written on the proper forum for condo disputes before (see here and here) but this case demonstrates that adjudicated proceedings won’t always resolve squabbles between neighbours.

Neighbouring owners (let’s call them, A and B) have a history of alleged name calling, banging on a common wall, harassment and racist taunts. The condo corporation took neighbour B’s side despite “she said/she said” allegations and started an application for order requiring neighbour A to sell their unit or to comply with the rules. Neighbour A moved to stay the application pending mediation and arbitration.

Continue Reading Condo neighbour disputes don’t belong in the courts

A Toronto condominium is making headlines after levying a $14 million special assessment. The condo’s 321 units were given 15 days to pay between $30,000 to $42,500. Many residents are seniors who see their units as their retirement home but the condo promised it wouldn’t enforce its liens before April…how generous.

The building needs major structural repairs and its finances are shocking to say the least. Last spring, the condo had a $5,000 operating fund and a whopping $1.75 in its reserve fund. The condo reportedly owes “as much as $9 million in debt” with $8 million owed to private lenders and another $1 million owed to the City of Toronto for unpaid utility charges – the condo pays $80,000 a month on interest alone.

This condo’s dysfunction predates the $14 million special assessment – it is one of the few condos that had a court-appointed administrator. Evidently this condo’s problems could not be solved even with an administrator. This is story should serve as a both a warning and a rude awakening for condos across the province: condominium operations are no joke.

Continue Reading $14M Special Assessments or: How I learned to stop worrying and take condo governance seriously

The latest issue of our newsletter, Condo Alert!, Winter 2021, features our Top 10 condo cases of 2021.  This past year saw a trend in condo decisions reinforcing the importance of mandatory mediation, more discretionary costs and in oppression applications.

This issue of Condo Alert! marks our 10th volume of GMA’s newsletter, with the first quarterly (ish) issue published Autumn 2008 (and, in case you are wondering what was of interest in August 2008, we covered:   trade-marking your condo’s name, the new Human Rights Tribunal processes, municipal fees on multi-unit building garbage collection and new clothesline regulations).

December 13 marked our 100th post since this blog began!!! Your continued interest and interaction means so much to us!  Welcome to all our new subscribers this year!  And thanks to our longtime readers.

We hope 2022 brings peace, stability and health.  Feel free to send your nuisances and annoyances in the CAT’s direction come Sunday.

All the best in the new year,

Andrea