Important CAT Decision in Relation to Nuisance Pets and Costs
In the recent case of Middlesex Vacant Land Condominium Corporation No. 605 v. Cui, the condominium corporation applied to the CAT for relief in relation to two alleged nuisance dogs. According to the decision, the evidence revealed that:
- the Respondent had allowed her Shepherd dogs to run off-leash on the common elements;
- she had lost control of the dogs and had to chase them when they ran away from her;
- the dogs had charged towards other dogs on more than one occasion;
- the dogs had been kept in the Respondent’s garage (attached to her unit) where they barked and howled loudly, excessively and continuously for extended periods of time, for several hours at a time and for as long as 12 hours on occasion;
- the barking had caused disturbance to the Respondent’s neighbours, which was described by one neighbour as offensive and which negatively affected another neighbour’s ability to sleep, work, have solitude, and spend time with friends in his home; and
- complaints had been received about the Respondent not cleaning up after her dogs when they defecate on the common elements.
The CAT concluded that the above circumstances violated provisions in the condominium corporation’s Declaration and Rules because the dogs had caused disturbance or nuisance to other residents, because the dogs had been allowed to run loose (not on a leash), because the dogs had been allowed to threaten the safety of others, and because the Respondent had not cleaned up after the dogs.
The corporation’s Rules also included provisions allowing the corporation to demand permanent removal of the dogs on two weeks’ notice. The CAT said:
I find that the Rules allow the Applicant to take action to have the Respondent’s dogs permanently removed from her unit, and that the Applicant has followed the process set out in the Rules to do so.
However, the CAT did not precisely enforce those provisions. Instead, the CAT ordered that the dogs be permanently removed within 30 days. This order was made under Section 1.44(1)2 of the Condominium Act, 1998.
The CAT then turned to the condominium corporation’s claims for costs. The corporation claimed the following costs under the following categories:
- $3,776.21 of “Pre-CAT costs” (legal costs incurred – for sending legal letters – prior to the commencement of the CAT process).
- $17,989.41 of “CAT costs” (legal costs incurred during the CAT process).
The CAT noted that the condominium corporation was entitled to recover costs (caused by the owner) under “indemnification” provisions contained in the corporation’s By-laws and Rules.
Therefore, the CAT awarded 100% of the corporation’s Pre-CAT costs.
However, the CAT said that when it comes to CAT costs the CAT’s power to enforce the condominium’s indemnification provisions is subject to the CAT’s cost rules. For that reason, the CAT could only award costs (in relation to the CAT process) if there are “exceptional reasons to do so”. And, as appears from this decision, the CAT does not consider the existence of an indemnification provision to be an “exceptional circumstance”.
In this case, the CAT considered all of the other circumstances and decided to award the condominium corporation one quarter of its CAT costs. The CAT gave the following reasons:
In considering whether the Applicant should be awarded its CAT costs, I have balanced the Respondent’s personal circumstances, which required the hearing to be extended, against the additional costs incurred by the Applicant due to the delays and the need for it to duplicate efforts in the proceeding. I find the amount of the CAT costs to be reasonable, given the additional work required of the Applicant’s counsel. I have determined that it is fair and reasonable to award the Applicant a portion of its CAT-related costs because, although a certain extent of the delay caused by the Respondent was outside of her control due to her personal situation, some of the delay was caused because she (and at times, her representative) did not follow my directions. However, I have taken into consideration the fact that the Respondent did not initially participate in the CAT proceeding for genuine personal reasons, she appeared to struggle with the CAT process, and she had issues with her representative.
I am pleased with the CAT’s decision in relation to the Pre-CAT costs, but I am disappointed with the CAT’s decision in relation to the CAT costs. In my view, the legislators clearly intended that the CAT would apply a condominium’s indemnification provision(s), including when it comes to CAT costs. That has to be what the legislators intended when they gave the CAT the jurisdiction (in Section 1 (d) of Regulation 179/17) to decide disputes respecting “provisions that govern the indemnification or compensation of the corporation, an owner or a mortgagee regarding a dispute described in this clause”. In my view, this overcomes the CAT’s rules respecting costs.
In any event, because of these concerns about CAT costs, we know that condominium corporations will be wondering who they should be calling upon to handle their applications to CAT. In a coming blog, we’ll be offering some comments on this, including steps that we’re taking at DHA to try to control these costs for our clients!
Finally, the above decision leaves the following question unanswered:
Can a condominium corporation rely upon an indemnification provision (whether in the Declaration, By-laws or Rules) to lien an owner’s unit for recovery of “Pre-CAT costs”, without a CAT order? This is a question that I think still needs to be determined (and since this issue would deal with the validity of a lien, I believe that the decision would likely have to come from the Courts).
Stay tuned to Condo Law News to keep up to date on the latest developments on pets and costs!