Reasonableness Regardless of the Route
As you may have read in our last edition of the CCI Review , on January 1, 2022, amendments to Section 117 the Condominium Act, 1998 (the “ Act ”) came into effect regarding nuisance and nuisance related disputes. Previously, Section 117 simply prohibited activities or conditions which were “ likely to damage the property or cause injury to an individual, ” but the amendments clarify and add to this very important section. It now prohibits conditions and activities in units, common elements, or assets of a corporation that are “ likely to damage the property or the assets or to cause an injury or an illness to an individual. ” Prohibited activities under this section include “ any unreasonable noise that is a nuisance, annoyance or disruption ” and any other “ prescribed nuisance, annoyance or disruption ” (currently being odour, smoke, vapour, light, and vibration). As you may have also heard, January 1, 2022 brought corresponding changes to the Condominium Authority Tribunal (the “ CAT ”) as its jurisdiction has been expanded to include disputes regarding nuisance, annoyance, and disruption as described in Section 117 of the Act . This is in addition to disputes related to records, pets, parking and storage. Notably, the CAT ’ s jurisdiction does NOT cover “ dangerous activities ” listed under Section 117(1) of the Act , which will still need to be addressed at the Ontario Superior Court of Justice. There is much uncertainty surrounding these changes and it will be some time before we have a good understanding of how the CAT will deal with concerns related to witness credibility, the involvement of experts, and increasing legal costs for example. It will also be some time before we will know how the Courts will address those cases where a party is claiming that a dangerous activity is taking place, potentially to avoid the CAT, but at the heart of the matter are issues related to a lesser nuisance, annoyance or disruption. In the meantime, it is critical for all Boards of Directors, owners, residents, and condominium managers to remember that when a dispute arises, reasonableness will always win the day. We were reminded of this in two recent decisions from CAT and the Ontario Superior Court of Justice. In the CAT case of Halton Standard Condominium Corporation 490 v. Paikin, 2021 ONCAT 95 (CanLII), Ms. Paikin, who lives on the second floor of the condominium building, allowed her dog to urinate and defecate on her balcony. Dog excrement would fall and urine would drip onto the patio area below on a regular and frequent basis. A strong odor of waste also emanated from the balcony above. Of importance here is that the Corporation and condominium manager appeared not to have attempted to resolve the issue directly with Ms. Paikin in any substantive manner but, instead, escalated the matter directly to their lawyer. Their lawyer advised Ms. Paikin that this was unacceptable and warned her that if it continued, the dog could be deemed to be a nuisance and the board could order the dog to be removed. The owner did not resolve the situation and, as such, the Board declared the dog to be a nuisance and Ms. Paikin was given two weeks to remove the dog. Ms. Paikin retained a lawyer who advised that the situation had been resolved and that the dog was no longer urinating or defecating on the balcony. Unfortunately, this was not accurate. Upon the Corporation commencing a CAT Application and the matter proceeding to a written hearing, the CAT concluded that this was unacceptable and had to
Kristi Sargeant-Kerr, LL.B. specializes in all aspects of condominium and real estate law, including development, management and litigation at Scott Petrie LLP. She has been involved in mediation and arbitration at numerous administrative Boards and Tribunals. Kristi has been appointed to the Advisory Committee of the Condominium Management Regulatory Authority of Ontario (CMRAO) . She is an active member of the CCI London and Area Chapter since 2017 and currently serves as Secretary. Kristi shares her expertise in publications and education events as a writer, presenter and instructor.
CCI Review 2021/2022 —March 2022 - 12
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