A Recent CAT Decision Addressed a Novel Nuisance Dispute
Our readers may be aware that under section 117 of the Condominium Act, prohibited activities now also include certain types of nuisances, which are: noise, odours, smoke, vapour, light, and vibration.
What happens however if the nuisance being experienced does not fall within one of these 6 categories? Can such matters still be brought before the Condominium Authority Tribunal (“CAT”) for compliance?
In such situations, the governing documents of the condominium may assist. Paragraph 1(1)(d)(iii.2) of Ontario regulation 179/17, which governs the jurisdiction of the CAT, confirms that the CAT may adjudicate disputes related to “provisions that prohibit, restrict or otherwise govern any other nuisance, annoyance or disruption.” A recent CAT decision touched on this provision.
In Carleton Condominium Corporation No. 132 v Evans, a dispute arose between an owner and the condominium corporation with respect to the location of a snow storage area. The condominium corporation’s snow removal contractor had historically been storing snow on a common element area adjacent to the owner’s unit. While the owner had not previously opposed the location of the snow storage, the owner in this proceeding began expressing opposition to the snow storage location in early 2021, arguing that the resulting snow melt was adversely affecting his unit.
The condominium corporation hired an engineer to investigate the owner’s concerns. The engineer did not find that the snow storage site was negatively affecting the owner’s unit. Nonetheless, the owner continued his opposition. In the subsequent winter, the owner parked his vehicle in a manner that hindered the ability of the condominium corporation’s snow removal contractor, resulting in increased costs as the snow was required to be stored offsite.
The CAT determined that the owner’s conduct constituted a breach of the Carleton Condominium Corporation No. 132’s (“CCC 132”) provisions respecting nuisance, specifically CCC 132’s declaration. Article IV(1)(e) of the condominium’s declaration states:
“No condition shall be permitted to exist and no activity shall be carried on in any unit or the common elements by an owner, family, or guests, that would constitute a nuisance.”
In the absence of a specific definition of “nuisance” in CCC 132’s governing documents, the CAT considered the basic legal definition of nuisance, which is that the interference “must be substantial and unreasonable.” In addition, the CAT found that the frequency and duration of the interference is a relevant factor, and that the interference cannot be “trivial” in nature. On these bases, the CAT found that the parking behaviour was a breach of Article IV(1)(e) of CCC 132’s declaration.
This recent decision shows that in situations where the nuisance being experienced does not fall within the 6 specific categories of nuisance prohibited by section 117 of the Condominium Act, the provisions within a condominium corporation’s governing documents may still provide the condominium with the ability to obtain a CAT order to prohibit the inappropriate behaviour.
However, this decision also serves as a good reminder of the importance of ensuring your governing documents are up to date. As time passes, provisions can become outdated, ambiguities in the wording may arise, and/or it may become apparent that certain situations are simply not covered by the current wording. It is important to keep such provisions updated, so if the need to address non-compliance arises, the Corporation has the support it needs within its governing documents.
Finally, in the above-noted case, CCC 132 was able to obtain recovery of some of the costs incurred (both “Pre-CAT” and “In-CAT” costs). What appears to be important in order for a condominium to recover its costs is that the declaration include a strong “indemnification” provision – i.e. a provision confirming a unit owner’s responsibility for costs incurred by the condominium as a result of the non-compliance of an occupant of the unit. With respect to “In-CAT” costs however, an award for full costs will be much less common.
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