Additional Clarity Respecting Nuisances and Costs at the CAT

In the case of TSCC 2138 v. Palmer et al, the condominium corporation applied to the CAT for an order to stop certain nuisances caused by a tenant. The CAT held that the tenant’s activities of sweeping and mopping dirt and water off her balcony and hanging rugs on her balcony railing were nuisances, in contravention of certain provisions in the condominium’s governing documents. The CAT ordered that these nuisances cease.

Similar to the CAT’s decision in the case of CCC 132 v. Evans (in which we represented the successful condominium corporation), the CAT confirmed its jurisdiction to deal with any form of nuisance that is governed by a provision in the condominium’s governing documents. The nuisance in this case met this test.

The CAT also held that, despite requests and warnings from the condominium corporation, the landlord had “not taken reasonable steps to change or end [the tenant’s] behaviour.” The CAT therefore also ordered the landlord to take such steps.

In terms of costs, the CAT first ordered the landlord to pay all of the condominium corporation’s “Pre-CAT” legal costs, based upon indemnification provisions in the condominium’s governing documents. The CAT said:

“Based on my review of the indemnification provisions, I find that [the landlord] is responsible for the costs incurred by TSCC 2138 prior to filing the application to the Tribunal. These costs were necessary and reasonably incurred by TSCC 2138 to enforce its by-laws and rules and to end the nuisance caused by [the tenant’s] regular and repeated conduct.”

In terms of the condominium corporation’s “In-CAT” legal costs, the CAT felt that some award of “In-CAT” costs was appropriate, because the condominium corporation had explicitly advised the landlord and the tenant of the rules, the requirement to comply with them, and the consequences of a failure to comply. However, the CAT awarded the condominium corporation only $4,000 (not the full amount claimed, which was $8,984.45). The CAT said: “This is less than 50% of the total legal costs claimed by TSCC 2138, and I find this amount is reasonable and proportionate to the nature of the issues.”

Note, however, that the CAT did not order the landlord to pay 100% of this “In-CAT” cost award, despite the indemnification provisions in the condominium’s governing documents. Instead, the CAT ordered the tenant and the landlord to each pay half of the “In-CAT” cost award. I was disappointed by this, because I think that the commitment of a condominium landlord – expressed in the indemnification provision – is that a landlord will protect the other owners from costs caused by the landlord’s tenant.

There is one final aspect of the decision that is important. The landlord had started a proceeding at the Landlord and Tenant Board (LTB) for eviction of the tenant. Because of that proceeding, the tenant asked that the CAT process be dismissed (as duplicitous). The CAT refused to dismiss the CAT proceeding.  Among other things, the CAT noted that the “parties and issues are different in the two proceedings.” This principle has been expressed in previous decisions, and I was pleased to see it repeated in this case.

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