Legal Blog

Worst

 In the good old days, when we could sharpen our advocacy skills with landlord and tenant applications, we acted for a landlord who was attempting to evict a tenant for appalling behaviour. The property manager testified that the actions of the tenant’s family toward the other tenants were so bad that this was the worst tenant family he had ever encountered. When we asked, “Is there a close second?” the property manager retorted that this family was in a class by itself. In the result, the court evicted that tenant.

Tenanted buildings do not, however, have a monopoly on bad neighbours. Condominiums have them also. What does a condo do when the neighbour from hell resides there? This was the subject of MTCC No. 747 v. Korolekh 2010 CarswellOnt 5939 (S.C.J.).

Rules

The Condominium Act, 1998 provides some basic rules to empower a condo to protect its residents. Section 117 prohibits conduct that is “likely to damage the property or cause injury to an individual.” Section 134 gives a court a broad remedial power to enforce compliance with the Act, the declaration, the bylaws, and the condo rules (collectively, the “Constitution”).

The condo in this case brought an application alleging that the unit owner’s behaviour towards the other condo residents was so bad as to breach not just the bylaws and rules, but also the Act.

The condo adduced evidence by way of nine affidavits of other residents. These affidavits set out, in lurid detail, the episodes that evidenced the owner’s behaviour. For example:

1.   Making racist and homophobic slurs (e.g. “fuck you faggot/homo” and “die Gypsy die”).

2.   Allowing her dog, a gentle Rottweiler, to roam the common courtyard area without a leash and refusing to clean up after the dog. When the dog was on a leash, allowing it to charge up to terrified residents, just before being stopped by the leash. 

3.   Swearing at the residents, alone and in front of their guests.

4.   Playing very loud music late into the night.

5.   Throwing gravel and dirt at the residents.

6.   Physically assaulting some of the residents.

7.   Ignoring the condo’s notices to remove her dog from her unit.

8.   Committing acts of vandalism against the common elements.

The owner’s affidavit merely denied the allegations against her rather than specifically addressing the myriad incidents to which the other affidavits referred. Further, she cross-examined only one of the other affiants and, we gather, got nothing of value out of that examination.

Technicalities

It is in light of these facts that the owner made a number of procedural responses to the condo’s application. These responses, and the judge’s treatment of them, are set out below:

1.   Section 132 provides a duty to mediate a dispute; section 134(2) stipulates that the right to bring an application under section 134(1) is not available without that mediation. Since the condo did not arrange for mediation, it had no right to bring its application.

–    Section 132, to which mandatory mediation applies, governs disputes about the declaration, bylaws, and rules; section 134, to which mandatory mediation does not apply, can be used to enforce compliance with the Act, which is exactly what the condo was attempting to do. Further, it was reasonable for the condo to avoid the expense of mediation in this case. The complainant’s bald denials of the allegations against her and her failure to respond to the condo’s demands made it unlikely that the mediation would be fruitful. In any case, the owner waited until four days before the hearing of the application and one year after the application was commenced to raise her objection; her untimely response waived any requirement to attempt mediation even if it were mandatory.

2.   The owner denied the allegations generally and alleged that the condo and the affiants had conspired against her because she had requested the condo to repair windows in her unit; therefore, the matter should be dealt with by trial and not by application. 

–    The power to bring an application is contained in the Act; Rule 14, which is the general rule for bringing an application rather than an action, does not apply.

–    The judge still had authority under Rule 38 to convert the application to an action. The judge refused to do so because the Act, in general, contemplated a summary procedure. More importantly, the owner had not raised a genuine issue for trial. The bald statements of denial, unsupported by any details, were insufficient to raise a genuine issue. The conspiracy allegation was completely implausible.

–    Again, even if otherwise valid, the request was made only four days before the hearing and was made too late.

Merits

The judge finally got down to the merits of the application. Not surprisingly, he had little difficulty in finding that the owner’s actions breached her obligations under section 117. She damaged the property and caused injury, both mental and physical, to the other condo residents.

Remedy

The condo wanted the owner out. Sell your unit, leave, and good riddance. The owner argued that the appropriate remedy should be an order to comply with her duties. She relied on a prior case in which a judge described the remedy of a forced sale as “extraordinary relief” and “draconian”. The judge fully agreed, but noted that the most serious remedies are appropriate for the most serious cases.

The judge noted that the owner destroyed a previously vibrant communal courtyard; engaged in extreme behaviour, in particular using her dog to frighten and intimidate the other residents; ignored the condo’s demand to cease her antisocial behaviour; assaulted her neighbours; and damaged the condo’s property. Further, the breadth of her misconduct made an alternative compliance order almost impossible to manage.

The judge then waxed poetic. The owner, he said, “has irreparably broken the bond with her community and an effective order cannot be made that would force these parties to now join together again.”

The judge ordered the owner to get rid of her dog within 10 days and to list and sell her unit within 3 months.

Costs

A declaration inevitably calls for an owner to pay for all costs that the condo incurs arising out of an owner’s breach of the Constitution. The declaration in this case was no exception. Although there are times when saddling the owner with full costs can be oppressive, there are occasions, such as this one, where the behaviour of the owner is so abysmal that the condo – and therefore the other unit owners – should not bear the brunt of ensuring that the behaviour ceases.

The condo’s lawyer had claimed solicitor-client costs of $55,000. The judge decided that he performed a significant amount of work, but that 180 hours was excessive. The judge sugar coated that assessment by noting that the lawyer was young and was “undoubtedly proceeding slowly and carefully in order to ensure that his work was of a high standard.” The judge awarded costs of $35,000 to be paid in 30 days.