Concurrent Proceedings Before the Court and the Landlord and Tenant Board Seeking to Evict a Non-Compliant Tenant
In the case of FCC 6 v. McCauley, our firm recently represented the condominium in its Application for eviction of a non-compliant tenant. Its an important decision because the Court was asked to address the issue of concurrent proceedings before the Superior Court of Justice and the Landlord and Tenant Board (“LTB”) with respect to the sought eviction.
In this case, the tenant had continuously failed to comply with the provisions of the Condominium Act and the condominium’s governing documents by screaming and yelling obscenities, banging on doors, damaging the unit, threatening physical harm, and exposing herself, among other things. As a result of this non-compliant behaviour, the landlord owner had started various LTB applications pursuant to the Residential Tenancies Act seeking to evict the non-compliant tenant.
Because none of the landlord’s LTB Applications produced any meaningful outcome, and because the tenant’s behaviour remained problematic for other residents, the condominium corporation started a Court Application pursuant to section 134 of the Condominium Act against the tenant and the landlord owner seeking a compliance order and, if necessary, an eviction of the tenant.
At the hearing of the condominium’s Court Application, the tenant argued that the Application should be stayed (or put on hold) because the landlord had ongoing LTB applications in which it was also seeking to evict the tenant. In response to this argument, the Court determined that the condominium’s Court Application should not be stayed. The Court confirmed that the condominium corporation was not a party to the proceedings at the LTB and did not have much, if any, control over how the LTB applications proceeded or their outcome. The Court further stated as follows:
While it is always a matter of concern to have what are effectively parallel proceedings before different tribunals, seeking essentially the same relief, the two sets of proceedings are brought by different parties with different interests and different responsibilities. In the case of the applicant (the condominium corporation) it has, as has been pointed out, clear and unequivocal obligations under the Condominium Act, 1998 to ensure compliance with not only the Act, but the condominium declaration, the rules of the condominium and its bylaws. Under those circumstances I see no justification in further delaying the ability of the applicant to obtain relief because of the ongoing proceedings in front of the Landlord and Tenant Board.
The Court’s determination was due, in part, to the finding that the condominium corporation has its own obligations and rights under the Condominium Act (which are separate and distinct from the landlord’s obligations and rights under the Residential Tenancies Act).
Having said the above, we note that, in this particular case, the condominium corporation had provided the landlord owner with a reasonable opportunity to pursue her LTB applications seeking to evict the non-compliant tenant. In our view, unless there are exceptional circumstances, it makes good sense for condominium corporations to take a similar approach when dealing with a non-compliant tenant. Allowing the landlord owner to first seek eviction through the LTB can sometimes entirely resolve the matter without the condominium corporation having to incur significant legal costs (to pursue its Court Application) if the landlord owner is ultimately able to evict the non-compliant tenant at the LTB.
In our view, the condominium corporation is not legally obligated to await the landlord’s enforcement efforts. However, if the landlord is willing and able to take effective enforcement steps against a non-compliant tenant, the landlord might be able to avoid a claim for costs (by the condominium corporation) if the condominium corporation decides not to await the outcome of the landlord’s efforts. This of course will depend upon the specific circumstances of a given case, including the seriousness and urgency of the tenant’s non-compliant behaviour.
Ultimately, in the FCC 6 v McCauley matter, the Court found that the tenant had breached the provisions of the Condominium Act and the condominium’s governing documents and ordered that the tenant comply with such provisions, failing which the condominium corporation could then take steps to evict the tenant. Because the tenant subsequently continued to breach the provisions of the Condominium Act and the condominium’s governing documents, the Court ultimately granted an order evicting the non-compliant tenant from the condominium unit pursuant to section 134(4)(a) of the Condominium Act.
In our view, this case nicely confirms the separate and distinct enforcement rights of condominium corporations and landlords – and helps to clear up some of the confusion caused by previous decisions related to concurrent proceedings before the Court and the LTB.
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