Recap of the Top Cases and Stories of 2023
It is time for our annual review of the top condominium stories of the year. The Condominium Authority Tribunal (CAT) dominated the top stories list, a trend we expect to continue as more disputes are heard at the CAT. There were some legislative changes and some other important news stories this year as well.
Condos in the News
Sadly, condominiums were in the news in 2023 for troubling and tragic reasons. There were more stories of violence against board members and other owners in the news following the tragic shooting in Vaughan in late 2022. Reports of other criminal activity in condominiums, like units being used as stash houses. There were stories of failed condominium development projects with purchasers losing deposits not protected by Tarion’s deposit protection or some purchasers walking away from deals (and leaving behind large deposits) because of rising interest rates and uncertainty in the market. Even the Condominium Management Authority of Ontario (CMRAO) was busy again this year with investigations and disciplinary proceedings leading to the suspension and revocation of licences, and even convictions on the first individual and company charged with providing management services without a licence.
On a more positive note, the Ontario Legislature has made a few important amendments to the Condominium Act, 1998, in 2023. Most of the amendments made in 2023 relate to the temporary measures adopted to allow for virtual meetings and electronic voting during the pandemic. These measures were set to expire on September 30, 2023. The amendments allow condominiums to hold virtual (or hybrid) meetings and use electronic or telephonic voting methods without passing a by-law first as was previously required. Furthermore, condominiums can now communicate with owners via email without obtaining an agreement to receive communications by electronic means. Put another way, instead of requiring owners to opt-in, the amendments require them to opt-out of electronic communications. These are welcome changes for the industry.
The CAT was busy again this year with over 200 reported decisions released in 2023. Here are some of the key takeaways from those decisions:
York Condominium Corporation No. 444 v. Ryan – in certain circumstances, harassing conduct may be a nuisance, annoyance, or disruption which may be heard by the CAT. In this case, the condominium had rules prohibiting the harassing conduct, which included yelling obscenities, offensive emails to management, and posting offensive notices on the property. The owner harassed another resident and her children, and the management and staff of the condominium when she felt her smoke complaints were not being taken seriously. The condominium was awarded over $9,000 in legal costs for seeking her compliance and bringing the application.
Simcoe Condominium Corporation No. 104 v. Leary – a tenant parked their commercial vehicle on the property. The condominium felt it was prohibited by the rules which did not allow commercial vehicles or vehicles with advertisements or signs. The CAT found parts of the rule were not in accordance with the Act. Section 58 of the Act requires rules to address either the safety, security or welfare of owners and the property or to prevent unreasonable interference with the use and enjoyment of the property. The CAT member felt there were not safety, security or welfare issues being addressed and any interference was trivial in nature. As such, the CAT ordered the condominium not to enforce the rule against the tenant.
Di Domenico v. Halton Condominium Corporation No. 118 – the CAT does not have jurisdiction to address noise cases causes by building issues or the condominium’s maintenance and repair obligations. See also Brady v. Peel Condominium Corporation No. 947, Sievewright v. Toronto Standard Condominium Corporation No. 1793, and Tarski v. York Region Standard Condominium Corporation No. 1179. Interestingly, the CAT does not seem to have the same concerns with other types of nuisances related to a condominium’s maintenance and repair obligations, such as light. How does the CAT have the jurisdiction to order a condominium to remove a light or reposition it but not the jurisdiction to address noise caused by common elements or assets the condominium is also responsible for?
Abrecht v. Sheikh Al-Zoor – the CAT member reminds people that “residing in an apartment-style complex, whether condominium or otherwise, comes with the inherent possibility of neighbours who live in a variety of circumstances. Some may have families with young children who will be active and inevitably create some noises of the kind complained of in this case. This is to be expected and, unless becoming unreasonably excessive, tolerated.”
Objective evidence from third parties is vital to noise case at the CAT. The CAT released several decisions this year suggesting that it will give very little weight to complaints without any corroborating evidence, such as reports from concierge/security or acoustical experts. A noise log or recordings might initiate the complaint with the condominium, but more will generally be expected by the CAT members to prove a nuisance claim at the CAT.
Hum v. Waterloo Standard Condominium Corporation No. 670 – condominiums may tow a vehicle from the property if supported by its rules. In this case, the owner had only moved in the week before the towing incident, so the CAT felt it was not reasonable to tow the vehicle without first providing the owner notice or a ticket as described in the rules.
Zachepylenko v. Toronto Standard Condominium Corporation No. 2680 – smoke and odours are not always a nuisance. There was no prohibition on smoking in the condo and the smoke did not rise to the level of being a nuisance, annoyance, or disruption. See our previous post for more information.
Di Felice v. Wentworth Standard Condominium Corporation No. 379 – condominiums are entitled to (and should) redact invoices from their lawyers to maintain solicitor-client privilege. The condominium may redact the time spent, the hourly rates, the description of services, the names of the lawyers, and the dates of the invoice. The owner is entitled to know the total amount billed on the invoice.
Other Court & Tribunal Cases
The Superior Court of Justice released some important decisions in 2023 as well. Here are a few you should be aware of:
Bruce v. Waterloo North Condominium Corporation No. 26 - Condo owner was exempt from special assessment, loan, levy, or other contribution to maintenance and repair of a water main lift and lift station due to insufficient language in the status certificate prepared in 2021. The judge felt the condominium knew the item would require costly replacement since 2017 and there were insufficient funds in its reserve fund to pay for it, so the condominium should have described the project in the status certificate even if the board had not received the quotes for the project at the time it was prepared. As such, if condominiums have even an inkling of a possible special assessment or increase, even if costs, funding, or the possible timeline are unknown, it should be described in the status certificate.
Carleton Condominium Corporation No. 519 v. Ottawa-Carleton Standard Condominium Corporation No. 656 et al. – neighbouring condominiums were required to contribute toward costs of electrical equipment serving all three condominiums despite there not being a cost sharing agreement registered on title or other agreement requiring contributions. The court found the two condominiums would be unjustly enriched if they did not contribute toward the costs. One of the two condominiums appealed the decision, but it was dismissed. Condominiums would be wise to prepare cost sharing agreements for all shared items before a dispute arises.
Polchil Homes Ltd. v. Peel Condominium Corporation No. 245 – it was oppressive for the condominium to lock the owner out of the unit for 18 days because the owner started extensive renovations in the unit without approval of the board. It was not oppressive for the condominium to take time to approve the renovations, especially when delays were caused by the owner not providing the requested information. Agents of the condominium booking the elevator so the owner could bring materials into the building was not board approval of the renovations. The court awarded the owner damages of $10,000 for being locked out of the unit, but refused to order the condominium to reimburse him for the costs charged to the owner to fix the fire detection and suppression systems that the owner tampered with during the renovations.
Ron John Williams Dowell et al. v. York Condominium Corporation No. 403 – it was not unreasonable for the condominium to require access to a unit and its exclusive use balcony to inspect the anchor system as required by the Building Code or to use the anchor system to clean the windows of the units below the balcony. Condominiums are permitted to make entry to a unit or exclusive use common elements to carry out its duties and objects even if those duties or objects do not relate to that unit or exclusive use common elements. Section 19 sets out the condominium’s right to do so upon reasonable notice.
Gangoo v. Toronto Standard Condominium Corporation No. 1737 – owners alleged that two elections held at the condominium were conducted in a manner that was contrary to the Act and by-laws and were unfair to them. The court agreed that the process used to count the votes was “flawed and unsatisfactory” due to carelessness but was not prepared to say the board acted oppressively. The court was concerned with the conduct of the manager in allowing the owners to believe their proxies were valid when they were not, depriving the owners of an opportunity to correct them before the meeting. The court also had concerns about the manager asking the candidates questions during the meeting that were beyond the scope of the candidate disclosures required by the Act. The court awarded the owners $5,000 in damages for oppressive conduct during the meeting by the manager.
As 2023 comes to an end, we look forward to seeing what 2024 holds in store for us. We end this post with our favourite excerpt from a condominium case in 2023:
Living in a condominium has its challenges. Communal living requires civility, compromise and patience. Far too often, the parties before this Tribunal have notably failed to demonstrate one or more of these attributes. All people or organizations involved in the management or regulation of condominiums must speak with one voice against aggression, verbal or physical, within a condominium.
We hope to see more civility, compromise, and patience in the industry (and the world) in 2024.