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.
The court granted the stay under the statutory scheme of section 132 of the Condo Act but also criticized the parties’ conduct. The court wisely said:
The fix for neighbours’ disputes, whether in condominiums or houses, is not found in an expensive, drawn out court proceeding. The court certainly can find facts and impose a remedy after an expensive trial perhaps. But, until the neighbours agree to cease hostilities, the court’s decision is just a battle in an ongoing war. It becomes fodder for the next salvo. The fix is in making the parties sit down, hear each other, and realize that the only win-win is peace. As said in the movie WarGames, “The only winning move is not to play”. [emphasis added]
The court also saw through the condo corporation’s attempt to bypass mediation and arbitration by characterizing the dispute into sections 117 (prohibiting dangerous activity or condition) and 119 (compliance with the Act). The underlying issues preferred and required mediation and arbitration, especially since there was no credible evidence showing that the case involved a risk of injury to people.
It will be interesting to see how a similar neighbour dispute plays out at the CAT now that its jurisdiction has expanded to disputes involving nuisance and disturbances as of January 1, 2022. With mandatory mediation built into the 3-step tribunal process, it remains hopeful that fighting neighbours might find peace through the CAT.