February 2021, Rahman v. Peel Standard Condominium Corporation No. 779, 2021 ONCAT 13
While allegations of harassment are not uncommon in the condominium world, the Condominium Authority Tribunal (the “CAT”) has generally refrained from determining that condominiums have harassed unit owners until now. In a novel decision, the CAT recently determined that a Condominium harassed a Unit Owner by virtue of hostile enforcement actions. The Condominium was ordered to pay damages to the Unit Owner to compensate for the harassment.
In Rahman v. Peel Standard Condominium Corporation No. 779, Aqib Rahman (the “Unit Owner”) was engaged in a prolonged parking-related dispute with PSCC No. 779 (the “Condominium”). The overarching issue related to the Unit Owner’s use of a common elements parking spot designated as “handicap parking” in the Declaration (the “Parking Spot”). While the Unit Owner asserted that he was entitled to use the Parking Spot, the Condominium took the position that such was not allowed. While the Unit Owner provided a medical letter, the Condominium contended that the contents of the letter were insufficient. Further, the doctor did not provide additional information upon request. The Condominium and its solicitor issued a series of enforcement letters to the Unit Owner. Legal fees were charged back without a court order. With reference to legislation, the Unit Owner disputed the Condominium’s authority to charge back in this manner. After issuing a lien to collect the legal fees, the Condominium commenced a Power of Sale proceeding.
While the CAT dealt with several sub-issues, it determined that the Unit Owner was permitted to use the Parking Spot because he met the criteria in the Declaration. The CAT then considered whether the Condominium’s actions constituted harassment, as alleged by the Unit Owner.
Crossing the ‘Harassment Threshold’
A finding of harassment was made because the Condominium passed a threshold. “At some point in pursuing this matter, [the Condominium] tipped over from aggressively pursuing its claims to harassing one of its condominium unit owners.” This occurred “despite the fact that it would have been clear to a reasonable person that [the Unit Owner] had, at the minimum, a prima facie case for his use of the accessible parking space.”
While a clear test was not articulated with respect to the harassment threshold, the question was analyzed with reference to the ‘reasonable person.’ In addition to the Unit Owner’s credible claim to use the Parking Space, the finding of harassment was supported by the fact that the Condominium ignored the Unit Owner’s claims, disregarded the Unit Owner’s medical documentation, dismissed the Unit Owner’s references to legislation and municipal by-laws, and pursued a lien and Notice of Sale.
To compensate for the harassment, the Condominium was ordered to pay $1,500 in damages to the Unit Owner pursuant to the CAT’s authority to award damages for “an act of non-compliance.”
While enforcement remains essential, condominium boards and managers must be aware that actions beyond a certain threshold can constitute harassment, which may lead to monetary liability. Due to the lack of clarity with respect to the harassment threshold, counsel should be retained when allegations of harassment are made, or when enforcement files begin to rapidly escalate.
Written by Jamie Cockburn, edited by Christopher Mendes, Matthew Timms, and Robert Mullin. *This article does not constitute legal advice, always consult legal counsel.
Jamie Cockburn, B.E.S. (Hons), J.D.
Articling Student – SmithValeriote Law Firm LLP