Recap of the Top Stories of 2021
Can you believe it is December already!? You know what that means. It is time for our annual review of the top condominium stories of the year. While COVID-19 continues to dominate many of the top stories of the year, there were some other notable stories on the always popular topics of people, pets, and parking. In no particular order, here is our list of the most memorable cases, legislative changes, and news for 2021.
Expansion of the Condominium Authority Tribunal’s Jurisdiction
When the Condominium Authority Tribunal (CAT) was first created it heard only disputes related to records requested by owners. On October 1, 2020, the jurisdiction of the CAT was expanded to hear dispute about pets, animals; vehicles, parking and storage; and indemnification or compensation related to these issues. And the CAT has been busy with over 115 reported decisions so far in 2021! We will highlight some of the decisions below.
The CAT’s jurisdiction will be expanded again on January 1, 2022, to include nuisances, which is currently defined as including noise, odour, smoke, vapour, light, and vibration. It should be a busy 2022 for the CAT!
There are some condominium disputes that seemingly fit within the jurisdiction of two or more courts and tribunals. This is sure to continue as the CAT’s jurisdiction is expanded. There were several interesting decisions with jurisdictional battles.
Who has jurisdiction when a condominium alleges a pet rule violation by an owner and the owner asserts the pet is an emotional support animal or service animal? The CAT? The Human Rights Tribunal of Ontario (HRTO)? The CAT released a decision earlier this year on this subject. The owner had filed an application to the HRTO about a dog. The condominium brought a CAT proceeding (even though it was aware of the HRTO application). The owner brought a motion to defer the CAT proceedings pending the outcome of the HRTO application. The CAT dismissed the motion finding the HRTO proceeding was not much further along than the CAT proceeding, the CAT proceeding related to how the rules applied to the owner (not the accommodation itself), and the condominium sought an order for the dog to wear a muzzle.
What about a situation where a unit is rented and a dispute arises between the condominium, owner, and tenant? The courts have repeatedly stated that the condominium may bring an application for compliance against the owner and tenant in the Superior Court of Justice (SCJ) and is not required to proceed to the Landlord Tenant Board (LTB). Section 134 of the Condominium Act, 1998, confirms this. Unfortunately, there was an unusual decision earlier this year where the LTB suggested that might not be the proper process. Not surprisingly, most believe this decision was wrongly decided as it ignored years of precedent. Our friends at CondoAdviser have a great post on the subject.
The CAT also confirmed it does not have jurisdiction to hear shared facilities disputes between condominiums and those disputes continue to be resolved using mediation and arbitration under section 132 of the Condominium Act, 1998.
Accommodation and Harassment
What do you do when an owner is requesting accommodation in relation to a disability, but the owner’s requests become harassment? In a recent case a condominium brought an application against an owner alleging the owner was harassing and terrorizing the other residents, refusing to permit contractors to access his unit, and sending an excessive number of emails to the directors. The owner argued that the conduct the condominium was complaining about was caused by his disability and the condominium was required to accommodate him. The court, while sympathetic to the owner’s circumstances, concluded that the owner’s conduct was oppressive and contrary to section 117 of the Condominium Act, 1998, which prohibits conditions or activities that may cause injury to persons (which previous cases have stated includes psychological harm from repeated harassment). The owner was ordered to pay the condominium its legal fees of $75,000 on a partial indemnity basis.
Starting early in the pandemic most condominium meetings have been held by teleconference or using electronic means. To facilitate these virtual meetings, the Ontario government made temporary amendments to the Condominium Act, 1998, to allow condominiums to hold meetings of the owners using telephonic or electronic means even if the condominium does not have a by-law allowing such. The temporary amendments also allow for voting by electronic or telephonic means, electronic notices to owners even if they have not entered into an agreement for electronic notices, and electronic or telephonic board meetings without the consent of all directors. The temporary amendments were recently extended to September 30, 2022.
CAT takes on Dogs
The CAT has heard several disputes about pets and animals with the expansion of its jurisdiction late last year. The CAT has enforced rules prohibiting dogs in excess of 40 lbs (awarding the condominium costs of $4,662.75); removal of dogs after complaints of loud and prolonged barking and aggressive incidents (awarding the condominium $11,313.29 in legal costs); urinating on the balcony and ordering the owner to clean it up; and allowing the dogs to be off-leash, losing control of them, and allowing them to charge at other owners (awarding the condominium $8,273.56 in legal costs).
In a recent case, the CAT found a condominium’s offer to provide an owner with a disability requesting accommodation from a no pets rule to have a dog up to 25 lbs to be reasonable. The owner’s son had an emotional support animal that weighed more than 25 lbs and the owner wanted to keep it. The CAT found that the owner did not establish that they required a dog over 25 lbs; it was merely a preference and the condominium is not obligated to accommodate a preference.
The CAT has also been busy releasing decisions about parking. Unlike with the pet cases where condominiums have been successful in most cases, there are several cases where condominiums have been unsuccessful in enforcing parking rules (especially visitor parking restrictions). In most of these cases the CAT was not concerned with the rules themselves but with insufficient evidence proving the person was not entitled to use the visitor parking spaces. The key takeaway from these cases is that condominiums must gather clear, convincing evidence that the vehicle belongs to a resident or owner before proceeding to the CAT and condominiums should have criteria or a definition of “visitor” to guide the board’s decision in determining if the person is entitled to use visitor parking spaces.
The CAT has enforced rules prohibiting the parking of both a vehicle and motorcycle in the same parking spot; prohibiting parking motorcycles on the common elements outside parking spaces; an owner from using visitor parking for vehicles that she borrows from family for brief periods of time; and rules prohibiting owners from parking trucks in visitor parking even if they do not fit in their parking spaces in the underground parking garage (the CAT gave the owners 90 days to remove the trucks).
The CAT has refused to enforce the declaration and rules to prohibit an owner from using an accessible parking space as the declaration and rules did not clearly prohibit an owner from using the accessible parking spaces. The CAT was not impressed with the “aggressive” actions of the condominium and awarded the owner $200 for the filing fee and $1,500 in general damages.
The CAT also released a decision interpretating the documents to determine if an owner was entitled to one or two parking spaces.
Policies vs. Rules
While the courts have often ignored or missed the distinction between policies and rules in condominiums, the CAT has picked up on the distinction. The most comprehensive case on the issue is Boodram v. Peel Standard Condominium Corp. No. 843 released in April of 2021. The condominium had created a visitor parking policy that required visitors to use permits and limited the number of permits an owner could use. The owner argued the policy was not enforceable. The CAT found the policies were improperly enacted rules, and, as such, were invalid and unenforceable.
In 2021 the courts heard a few cases about policies or rules created by condominiums to address the pandemic. The court generally supported policies or rules aimed at reducing the spread of covid-19 in the condominiums (see Halton Condominium Corp. No. 77 v. Mitrovic and Carleton Condominium Corp. No. 32 v. Yakovlev for mask policies), but there are limits. For instance, an owner who claims to be exempt from the face covering requirements of the Reopening Ontario (A Flexible Response to Covid-19) Act, and municipal by-laws, is not required to provide proof of their exemption. To balance the competing interests, the courts limited their access to the common elements to only the portions necessary for them to come and go from their unit or check the mail. They were not entitled to access other common elements without wearing a mask.
With the implementation of proof of vaccination requirements in Ontario in September many were left wondering if condominiums had to comply with the new requirements. Most lawyers believe the regulations do not apply to condominiums, but they could pass rules requiring owners to provide proof of vaccination or alternatives (i.e. proof of immunity, negative test results) to use the amenities.
It was a very busy year for the CAT and that trend is sure to continue with its jurisdiction being expanded again on January 1, 2022. Conversely, we are seeing fewer court decisions related to condominiums. This is good news for condominiums and owners given the significant costs, delays, and onerous procedures associated with courts compared to the CAT and mediation/arbitration.
We also have a provincial election coming up in 2022. How will the election impact the remaining amendments that were enacted years ago and have not come into force? Will we finally see some of the amendments or will they all be scrapped? Will we see new amendments to address issues like soaring insurance premiums in condominiums? Stay tuned for more information on this as the election debates start in 2022!