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Condovoice Condovoice is published four times per year – Spring, Summer, Fall and Winter, by Association Concepts on behalf of the Canadian Condominium Institute Toronto & Area Chapter. EDITOR: Brian Horlick ADVERTISING: Jaclyn LaForce ART DIRECTION & DESIGN:
Atlanta Visual Communications Inc. All advertising enquiries should be directed to Seamus Gearin at (416) 840-5346 or advertising@ccitoronto.org If you are interested in writing articles for Condovoice magazine, please contact Jaclyn LaForce at (416) 840-5346 or jaclyn@ccitoronto.org. Article topics must be on issues of interest to Condominium Directors and must be informative rather than commercial in nature. The authors, the Canadian Condominium Institute and its representatives will not be held liable in any respect whatsoever for any statement or advice contained herein. Articles should not be relied upon as a professional opinion or as an authoritative or comprehensive answer in any case. Professional advice should be obtained after discussing all particulars applicable in the specific circumstances in order to obtain an opinion or report capable of absolving condominium directors from liability [under s. 37 (3) (b) of the Condominium Act, 1998]. Authors’ views expressed in any article are not necessarily those of the Canadian Condominium Institute. All contributors are deemed to have consented to publication of any information provided by them, including business or personal contact information. Consider supporting the advertisers and service providers referred to in this magazine, recognizing that they have been supporters of CCI Toronto. Advertisements are paid advertising and do not imply endorsement of or any liability whatsoever on the part of CCI with respect to any product, service or statement.
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Editor’s Message
CAT Tribunal’s Jurisdiction to Include Nuisance-Related Disputes On January 1, 2022, amendments to s. 117 of the Condominium Act and Ontario Regulation 48/01 will come into effect which will include a prohibition against the carrying on of any activity resulting in the creation of an unreasonable noise, smoke, vapor, light, and vibration. Similarly, on January 1, 2022 amendments to Ontario Regulation 179/17 will come into effect that further broaden the jurisdiction of the Condominium Authority Tribunal (the “CAT”). The effect of these amendments will be to allow disputes related to s. 117 of the Condominium Act and disputes related to provisions of a condominium corporation’s declaration, by-laws, or rules that prohibit, restrict or otherwise govern unreasonable noise, odour, smoke, vapour, light and vibration to be heard by the CAT. While nuisance-related disputes have to date been framed as a breach of the right to quiet use and enjoyment, the remedy was an expensive court application or the commencement of mediation and arbitration. By moving such disputes to the CAT, condominium owners as well as condominium corporations will now be able to access a faster and more economical forum in order to achieve a resolution. As the CAT moves forward with its increased jurisdiction, one major area of concern relates to costs, or more to the point, legal fees. At the present time, the CAT cannot order an unsuccessful party to pay lawyer’s fees to a successful party unless there are “exceptional” circumstances. This means that unless a party’s
conduct has been unreasonable, frivolous, vexatious, or they have acted in bad faith, costs are unlikely to be awarded. This is to be contrasted with pre-litigation costs, where the CAT has ordered that unit owners pay as additional common expenses a condominium corporation’s reasonable legal fees resulting from a unit owner’s breach of the condominium corporation’s declaration, by-laws, or rules. Courts have long supported the position that unit owners who refuse to comply with the condominium’s governing documents should be responsible for the costs of enforcement. The position is one of fairness, as clearly, other owners in the corporation should not be responsible for paying the costs incurred by a noncompliant owner, and because a condominium corporation has a positive legal obligation to ensure that all owners comply with the Condominium Act, and the declaration, by-laws, and rules. On a positive note, it appears that the Condominium Authority of Ontario (“CAO”) is now alert to this issue. In November of 2021, the CAO sent out a survey to condominium stakeholders which included a number of questions dealing with the issue of legal fees, including what factors the CAT should consider in deciding to order one party to pay the legal fees of the other. Nuisance-related disputes will be more complex than the early records request disputes. For example, in some cases, expert witnesses may need to be retained and reports commissioned, whether they – Continued on page 9 CONDOVOICE WINTER 2021
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