Summer Case Law Update – Pets, Parking, and Nuisance Edition
The Condominium Authority Tribunal (CAT) has been busy again this year with cases about pets, parking, and nuisances. Today, we discuss a few cases from the past few months which highlight some of the nuance about when the CAT will or will not have jurisdiction over a dispute. The last case is an interesting one about a 30-year delay in enforcing a prohibition on storing items in parking units.
The CAT’s jurisdiction is limited
Prychodko v. York Condominium Corporation No. 288, 2024 ONCAT 113
The owner filed an application alleging the elevator was transmitting excessive noise, which was interfering with their quiet enjoyment of their unit. The owner sought an order requiring the condominium to modify mechanical components of the elevator and improve insulation. The CAT again confirmed that it does not have jurisdiction to hear cases about noise that may be related to repairs and maintenance. The case was dismissed. See also Sievewright v. Toronto Standard Condominium Corporation No. 1793 et al., 2024 ONCAT 104 where an owner’s complaint about garage door noise was dismissed, in part, because the CAT did not have jurisdiction over it as the owner was complaining about noise caused by the regular use of the garage door by residents.
Middlesex Standard Condominium Corporation No. 643 v. Faqiri, 2024 ONCAT 92
The condominium commenced an application against an owner for a range of issues, including compliance with parking and storage rules. The CAT allowed the condominium’s application to proceed, but the owner’s use of the unit as an “unauthorized air conditioning business” were excluded as not being within the CAT’s jurisdiction.
Dambremont v. Cochrane Condominium Corporation No. 7, 2024 ONCAT 90
The owner alleged harassment by other unit owners and the directors. The CAT member raised a preliminary issue as to the CAT’s jurisdiction to hear the case. The owner alleged that it was within the CAT’s jurisdiction because the condominium had rules prohibiting the conduct complained of. The owner contended that harassment was an “other prescribed nuisance, annoyance or disruption”. The condominium conceded that its rules prohibited harassment, but argued the allegations did not meet the threshold of harassment so there was no nuisance, meaning the CAT had no jurisdiction. The condominium argued it was also caught by s.117(1) of the Act (i.e. the prohibition on dangerous conditions or activities), which was outside the CAT’s jurisdiction. The CAT member found that the CAT had jurisdiction to continue with the case because of the condominium’s rules, which covered other prescribed nuisances, annoyances, and disruptions. The CAT member further found there was insufficient evidence to demonstrate the allegations fell under s.117(1) of the Act or that the allegations did not constitute harassment, so a hearing was required. After the hearing, the CAT member concluded that the CAT did not have jurisdiction as the allegations fell under s.117(1) of the Act, which the CAT did not have jurisdiction over. The application was dismissed without costs.
30-year delay in enforcing not a barrier to enforcement
Middlesex Condominium Corporation No. 169 v. Doherty et al., 2024 ONCAT 84
About 30 years ago the owners installed garage doors on their parking units, as the rules allowed at that time, and used their parking spaces for parking vehicles and storing items. The condominium contended that the use of the parking units for any purpose other than parking vehicles was prohibited by the declaration. A fire department inspection resulted in an order requiring items to be removed from the parking units, but this was later rescinded by the inspector. The CAT member found the fire inspector’s order was of historical interest only as the condominium had an obligation to enforce its declaration, which included a clear prohibition against using the parking spaces for any other purpose. The owner argued that the condominium’s rule allowed them to use the parking space for storage. The CAT member disagreed. The rule allowing the storage of items had been repealed. Even if it had not been repealed, it was contrary to the declaration, so it was unenforceable or deemed amended to comply with it.
The owner also argued the condominium should not be entitled to enforce when it had other options available to it. The CAT member found that while the condominium had other options available to it, such as amending the declaration or granting legacy status to owners with the garage doors, its decision to require owners to comply with the declaration was entitled to deference by the CAT. The owner argued the condominium acquiesced or accepted the storage, but the CAT member dismissed this argument because the condominium’s declaration contained a non-waiver clause that indicated the failure of the condominium to enforce would not prevent it from doing so later. As a result, the owners were given 60 days to remove items from their parking units and if they fail to do so the condominium was entitled to do so with the owners responsible for the costs. Lastly, the CAT member awarded the condominium $5,179.20 in legal costs, which was about 30% of the amount claimed.