An owner brought a CAT application alleging she was experiencing unreasonable noise from a common element garage grate and unreasonable noise, odour, smoke and  vapour from a common element industrial vent.  At Stage 3, the condo made a preliminary submission that the CAT did not have jurisdiction to hear the dispute because it was a maintenance and repair dispute under ss. 89 and 90 of the Condo Act. 

The CAT partially accepted this:  while the grate issue was dismissed because it related to maintenance and repair, the exhaust from the industrial vent complaint could proceed to a hearing before the Tribunal.

The owner relied on s. 117(2) of the Act, which prohibits a person from creating or continuing unreasonable noise or any other prescribed nuisance to an individual in a unit or the common elements. Prescribed nuisances include odour and smoke; therefore the exhaust complaint fell within s. 117(2).  

The CAT accepted that s. 117(2) can apply to actions of the condo. In doing so, it acknowledged that a condo corporation can be held responsible for causing unreasonable noise or nuisance. Recently, the CAT has held that condos can be liable to owners for nuisances caused by common element security lights and fountain lights. 

This conclusion recalls two recently dismissed owner applications where the allegation was that infestations from other units or the common elements caused a nuisance and the condo was liable for not remedying the situation.  Afterall, if the CAT will deal with nuisances relating to lights or odours from the common elements why can’t it adjudicate nuisances from creepy-crawlies?  Two reasons: 

1.  Light and odour are a prescribed nuisance under s. 117(2) of the Condo Act, which “no person” shall create or continue.  Infestation is not.

2. The infestation applications were brought against condos under s. 117(1) of the Condo Act, which addresses damage to or injury to a person or property.  Those owners did complain of bites, nuisance and annoyance from the infestations they experienced in their units.  However, to advance infestation as a CAT arbitrable nuisance against the condo, there would have to be a rule or other governing provision (even a nuisance one) which prohibited “any person”, not just an “owner” or “resident”, from causing a general nuisance or infestation.  Without a tie-in via a governing document which might apply to the condo, infestation complaints against a condo will be dismissed.

Takeaway:  Owners advancing nuisance claims should examine whether their claims fall within the prescribed nuisances the CAT can hear if they wish to bring an application against their condo.  A nuisance rule may not be enough if it applies to “owners” or “residents” only (and not “a person”).  Otherwise, owners may have recourse in Superior Court for compliance, oppression or under s. 117(1) for extreme infestation nuisance or damage originating from the common elements.