The Introduction of Nuisance & the Expansion of the CAT: Should Further Amendments Be Considered?

As many our readers will know from our previous blog post, the Ministry of Government and Consumer Services has recently proposed bringing changes to the Condominium Act, 1998 (the “Act”). The proposal, if approved, would proclaim into force a new section 117 of the Act and amend two regulations under the Act (namely, Regulation 48/01 and Regulation 179/17). In addition to changes to the legislation, the government’s proposal would also significantly expand the jurisdiction of the Condominium Authority Tribunal (CAT).

The Canadian Condominium Institute (CCI)’s Legislative Committee recently submitted its comments to the Ministry of Government and Consumer Services regarding the proposed amendments to the Act and the broadening of the CAT’s jurisdiction.

Our very own Nancy Houle of Davidson Houle Allen LLP co-signed the CCI’s submission to the government. Following are some of the highlights of the CCI (Legislative Committee)’s comments regarding these important proposals:

• Additional clarity in defining terms: under the government’s proposal, the new section 117 of the Act would prohibit “any unreasonable noise that is nuisance, annoyance or disruption” and “any prescribed nuisance, annoyance or disruption”. But, while “nuisance” has an established legal definition, terms such as “annoyance” and “disruption” do not, and their interpretation will, in many cases, be entirely subjective. Additional clarity is also needed in relation to definitions of specific nuisances, such as light, odour, pests, etc.

In addition to the above, the government is also considering expanding the jurisdiction of the Condominium Authority Tribunal (CAT). It is worth reminding our readers that, at present, the CAT only has jurisdiction over certain condominium disputes (particularly, disputes related to request for records). The government’s proposal would expand that jurisdiction to include disputes related to:

1. The nuisances, annoyances and disruptions mentioned above;

2. Provisions in condominium Declarations, By-laws or Rules that pertain to nuisance, annoyance and disruption;

3. Provisions in condominium Declarations, By-laws or Rules that deal with pets and animals, vehicles, parking and storage; and

4. Provisions in condominium Declarations, By-laws or Rules that deal with indemnification or compensation to parties regarding the above-noted disputes.

Following are the CCI’s key comments regarding the proposal to broaden the CAT’s jurisdiction:

• Internal process before access to the CAT: the legislative brief suggests that a prescribed (internal) process to handle disputes between owners and condominium corporations be put in place as a mandatory pre-condition before an application can be made to the CAT. This pre-condition would allow the parties (usually the condominium corporation and the owner) to attempt to resolve the dispute internally.

• Cost awards: at present, the CAT can only award costs in exceptional circumstances. The inability to recover costs can, however, become problematic for condominium corporations and owners that rely increasingly on legal experts to navigate their CAT disputes (which will now become more complex given the expansion of the CAT’s jurisdiction). The broadening of the CAT’s jurisdiction to disputes involving nuisances, annoyances and disruptions in condominiums is also likely to increase the need for expert evidence – this will negatively impact self-represented litigants who will often not be in a position to properly guide such evidence. Consequently, the submission is that successful parties (whether the condominium corporation or the owner) should be able to recover costs before the CAT.

• Multiple fora for the same dispute: with the coming into force of section 117, there could be some confusion on the appropriate venue to adjudicate certain disputes. The submission highlights that some disputes that will fall under section 117(2) (for example, a dispute involving loud service animals in a condominium building) could also be brought before the Human Rights Tribunal of Ontario (HRTO). Clarity on this issue is required.

• Increase in the volume of disputes: the CCI estimates that expanding the CAT’s jurisdiction to include disputes related to nuisances, annoyances and disruptions would result in a “significant increase” in the number of disputes (submitted by owners and condominium corporations) before the CAT. Hence, the CCI inquires whether the CAT is, at present, adequately prepared to manage such an increase in the number of disputes.

In summary, the government’s proposal to amend the Condominium Act (and Regulations under the Act) will have a significant impact on many disputes arising in condominium settings and have both a substantive and procedural effect on how these disputes are resolved.  Stay tuned for further updates…

In the meantime, we hope that you are also providing your own thoughts to the Ministry!

Stay tuned to Condo Law News to keep up to date on the latest developments in condominium law!