4 minute read
Noise, Nuisance, CAT and COVID
Chris Jaglowitz, J.D., ACCI
Common Ground Condo Law
Between Ontarians staying home due to pandemic restrictions and the government’s stated intent to enact amendments to section 117 of the Condo Act and move those disputes to the Condo Authority Tribunal, it is no surprise that noise and nuisance is a hot topic this year. With drastic changes coming, now is a good time to take stock of the current situation and prepare for future changes.
At present, most condo Declarations and rules prohibit noise and nuisance that disturb peaceful enjoyment of units and common elements. The enforcement process typically involves several communications from management, escalating from friendly reminders to more stern demands if the issue is not resolved early. Most disputes are solved quickly and in-house, but many are elevated as legal matters. As a best practice, several communications should go from management before a non-urgent matter is sent to the lawyers. And where the complaints relate to tenants, keeping the owner closely apprised of every step is necessary to recover costs later.
But before taking any action on a complaint, evaluating the complaint critically is an essential and an often-overlooked step. It is not uncommon for Boards or managers to send a friendly reminder before determining that the complaint is sufficiently detailed or is actionable
and truly deserves further steps, which is understandable as it may save time and might often prove effective. But taking even informal steps without an initial assessment may start the case on the wrong foot. Residents receiving violation notifications don’t respond positively if the information is wrong or if the violation is trifling, which often causes a simple case to escalate and become unnecessarily acrimonious. In a perfect world, complaints are verified before any action is taken.
Initial evaluation should include requesting further details if the complaint is sparse. Ask who, what, where, when, why, and how. Check prior history and corroborating reports or ask building staff to validate the complaint. Keeping notes, security reports, photos, and video of all complaints and enforcement efforts is useful for documenting the steps taken and to track the progress of the issue over time and to minimize data leakage as directors, concierge staff, and managers inevitably change. Choosing and using a good electronic filing method for all this info and communications will pay off later.
Once a complaint is validated, and if initial friendly communications go unheeded, escalation to legal may be necessary. A lawyer’s demand letter often solves the issue but might equally be ignored. Initiating the mandatory mediation process with the first legal demand letter may increase the odds of the letter achieving the desired result.
And on the tricky subject of legal chargebacks for the cost of initial demand letters, the legal community is divided. Some lawyers favour chargebacks with the first letter as a deterrent. Others find that chargebacks with the first letter cause disputes to escalate and recommend that the cost be absorbed by the corporation if the matter is resolved with that letter. Remember also that the provisions of condo declarations and rules vary widely, with some documents providing strong support for legal chargebacks and others offering little or none. The complex topic of legal chargebacks is the subject of many articles and will become more challenging soon as cases eventually go to CAT, where costs are rarely awarded.
Mediation, followed by arbitration, is the current method of handling noise and nuisance issues against owners but is not typically effective when dealing with tenants. Managers must be creative in exploring solutions for non-complaint tenants because requiring landlords to secure their tenant’s eviction is no longer easy. With COVID-19-related backlogs in the Landlord Tenant Board and for sheriff’s evictions, negotiated solutions are a better option but require creative thinking to achieve. Involving tenants in mediations is more attractive now than it ever was and going to court is always the worst possible predicament.
In December 2019, the Ontario government announced its intention to enact amendments to s.117 of the Condo Act to add noise and nuisance to the list of prohibited activities and to bring those disputes into the Condo Authority Tribunal’s jurisdiction starting July 1. The government then heard from industry associations, including CCI and ACMO, who cautioned against proceeding too quickly and recommended that other disputes (namely financial chargebacks) be prioritized. Then the pandemic struck.
But in late August, the government announced that CAT will begin hearing disputes about pets, parking and storage and chargebacks related to those issues, starting October 1, 2020. Given the government’s strong preference and worthwhile goal to divert condo cases from the slowly-reopening and badly backlogged courts, it’s a safe bet that noise and nuisance cases will soon be assigned to CAT. This may be both a blessing and a curse for a host of reasons too numerous to list, but we must begin preparing for that day.
Just as we handle records requests differently now that CAT handles those cases, the way condo owners, Boards, managers, and lawyers handle noise and nuisance disputes will gradually change as CAT decides cases about pets, parking and storage, and related chargebacks. The lessons to come from those decisions will shape how current and future rule enforcement disputes arise, are investigated, and what steps are taken to enforce compliance and resolve them in-house. We must learn those lessons and may need to reinvent how we approach and handle noise and nuisance cases. Just as the world has changed so dramatically this year alone, we may be very surprised at how much condo rule enforcement will change this year and next.
Chris Jaglowitz is the principal of Common Ground Condo Law and serves condo corporations across Ontario.
