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Nuisances, Annoyances, or Disruptions? Take it up with the CAT

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On September 23, 2021, the Ontario Government announced that the Condominium Authority Tribunal (CAT) would have its jurisdiction expanded again in 2022. As a recap, its jurisdiction was originally limited to disputes related to record requests when it first opened its doors on November 1, 2017. On October 1, 2020, its jurisdiction was expanded to include disputes about parts of the declaration, by-laws or rules of a condominium related to 1. pets or animals; 2. vehicles, parking, and storage; and 3. indemnification of the condominium, an owner or mortgagee in relation to these disputes.

On January 1, 2022, the Condominium Act, 1998, was amended to expand the jurisdiction of the CAT to include certain nuisances. Section 117 now reads:

Prohibited conditions and activities

117(1) No person shall, through any act or omission, cause a condition to exist or activity to take place in a unit, the common elements or the assets, if any, of the corporation if the condition or the activity, as the case may be, is likely to damage the property or the assets or to cause any injury or an illness to an individual.

Same

(2) No person shall carry on an activity or permit an activity to be carried on in a unit, the common elements or the assets, if any, of the corporation if the activity results in the creation of or continuation of,

(a) any unreasonable noise that is a nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any of the corporation;

(b) any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation.

The other prescribed nuisance, annoyance, or disruptions described in subsection 117(2)(b) of the Act are described in section 26 of O.Reg. 48/01 as:

1.       Odour

2.       Smoke

3.       Vapour

4.       Light

5.       Vibration

To summarize, as of January 1, 2022, the CAT’s jurisdiction now includes:

1.       Noise

2.       Odour

3.       Light

4.       Vibrations

5.       Smoke

6.       Vapour

The CAT’s jurisdiction will also include disputes about the governing documents in relation to “any other type of nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation.” It will be interesting to see how this sentence is interpreted by the CAT and the types of other nuisances that may ultimately be heard by the CAT. For example, originally the proposed regulations included “infestations”. Will the CAT hear these disputes?

Like with the expansion of the CAT’s jurisdiction to include pets and parking disputes, the CAT’s jurisdiction has also been expanded to include disputes about indemnification related to the nuisance dispute. There has also been much talk lately about amending the CAT’s rules regarding cost recovery during disputes as the current rules discourage proceedings because the rules limit cost recovery even where condominiums are successful in proving an owner has not complied with the documents. As a result of the limited cost recovery, many condominiums have elected to ignore infractions rather than incur legal costs to enforce the documents. (Note: condominiums ignoring infractions should seek legal advice about the possible consequences).

Lastly, while the CAT now has jurisdiction over disputes in subsection 117(2) of the Act, it should be noted that the CAT does not have jurisdiction over disputes in subsection 117(1) of the Act. These disputes typically referred to as dangerous conditions or activities, continue to be heard by the Superior Court of Justice.  

Michelle Kelly HS

Michelle Kelly
Lawyer, Robson Carpenter LLP

www.rcllp.ca

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