Before CAT, condominiums typically brought compliance applications under s. 134 of the Condo Act to force unwilling residents to comply with the Condo Act and the condo’s declaration, by-laws and rules. And beyond ordering compliance with the Condo Act, declaration, by-laws and rules, judges have the broad discretion to “grant such other relief as is fair and equitable in the circumstances”. Notably, a judge (and not the CAT) can order a resident be permanently removed from the condo in extreme circumstances. This is what a Toronto condo sought in Toronto Condominium Corp. No. 1445 v. Catalli. Despite this broad discretion, the Catalli decision is a reminder on just how exceptional and difficult it is to remove someone on a compliance application.
The condo alleged that the Mr. Catalli had “a history of dangerous behaviour” and specifically referred to a lone incident where a fire broke out from his unit and caused extensive damage. Mr. Catalli was apparently criminally charged with arson by negligence, which he pleaded guilty to. Mr. Catalli argued that the fire was caused by faulty wiring – supported by a letter from an electrical contractor – and that he received no notice of his behavioural issues before this fire, save for one noise complaint for playing loud music. Interestingly, the condo seemed to indicate that any issues with Mr. Catalli’s conduct resulted from medical issues and not behavioural ones; Mr. Catalli showed he was receiving ongoing treatment and was on stabilizing medication.
The court refused the condo’s application to remove Mr. Catalli from the premises. First, the court was not convinced that Mr. Catalli would be an ongoing source of harm: the only evidence the condo pointed to was the fire which the court believed was an issue of faulty wiring rather than Mr. Catalli’s conduct. Second, the court acknowledged that Mr. Catalli is managing his medical issue and that it was “reluctant to stigmatize him for his past mental health problems”.
Forcing an owner to sell their unit or a resident to permanently move out has been considered by the courts to be the “ultimate and harshest remedy available…it should be reserved for the most egregious cases”. Such orders have only been awarded where the owner/resident is “incorrigible and unmanageable,” has been “given opportunities to reform their ways but exhibits an unwillingness to change” and “persistently refuses to abide by the community’s rules in extreme ways”. The judge in Catalli did not believe Mr. Catalli’s behaviour met this high bar.
This is an interesting decision that unfortunately doesn’t give us as much factual context as we would have liked. Still, here are Tony’s Takeaways:
“Ongoing Conduct”: the Catalli decision made an interesting point in addressing the condo’s safety concerns with Mr. Catalli: the judge held that this concern “must be based on evidence of ongoing conduct, not past conduct alone”. I understand the rationale and agree with how it was applied in Catalli.
However, I am concerned this decision minimizes the gravity of past conduct and overemphasizes “ongoing conduct”. This does not adequately consider the nature or severity of past incidents. For example, a violent resident could assault others in the condo but in the time it takes the condo to commence its compliance application and be heard by the courts, the resident has been in jail for most of this period and has assaulted no one on their return. On the plain text of this decision, the court would not order the residents removal.
But let’s say that after the application is concluded, the resident in my hypothetical assaults someone again, and the condo succeeds on its “second kick at the can” in removing the resident via another compliance application. Sure, the resident and their threats are now gone but at what expense? In answering this rhetorical question, another person has been assaulted and the condo has spent a lot of time, money and stress dealing with the violent resident. There needs to be greater emphasis on the nature/severity of the conduct – otherwise, precarious situations could be ticking time-bombs instead of a manageable risk with a clear solution.
Improve Record-Keeping: Keeping an incident log in a unit file is crucial for record-keeping. But an incident log is only as valuable as the quality of the incident reports. Any time there is an issue with an owner/resident, a note/report/summary of the incident needs to be prepared. These notes/reports/summaries should be detailed, objective and prepared as soon as possible while memory and recollection are at their best.
Be Reasonable: It’s trite to mention this in any condo-related commentary, but we constantly see the need to reemphasize this. While we wish the Catalli decision provided more insight into Mr. Catalli’s “history of dangerous behaviour”, it suggests that the best card the condo could lead with was this fire incident. Fires are undoubtedly serious situations that demand immediate attention but in this context, on the evidence we can glean from the decision and with Mr. Catalli demonstrating he did not contribute to the fire and that he addressed his medical issues, Mr. Catalli’s “dangerous behaviour” seems like a flash in the pan; a full-blown compliance application to remove him is disproportionate and unnecessary.