Interferes with Reasonable Enjoyment (Re: Common Elements)

Condominium Act, 1998, S.O. 1998, c. 19

1.36 (1) Subject to subsection (4), a corporation may apply to the Tribunal for the resolution of a prescribed dispute with one or more of its owners or one or more occupiers or mortgagees of a unit. 2015, c. 28, Sched. 1, s. 6.

(4) An application may not be made to the Tribunal under this section with respect to,

(a) a dispute with respect to Part III, section 20, 26, 82.1, 82.2, 85 or 86, subsection 117 (1) or Part VII or VIII; or

(b) a dispute involving the determination of title to any real property. 2015, c. 28, Sched. 1, s. 6.

117 No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual. 1998, c. 19, s. 117.

Metropolitan Toronto Condominium Corporation No. 747 v. Korolekh, 2010 ONSC 4448 (CanLII)

[1] This is an originating Application brought by Metropolitan Toronto Condominium Corporation No. 747 (“MTCC 747” or “the Applicant”) pursuant to ss.117 and 134 of the Condominium Act, 1998, S.O. 1998, c.19 (“the Act”). The Applicant alleges that one of its unit holders, the Respondent Natalia Korolekh (“the Respondent” or “Ms. Korolekh”) has repeatedly violated s.117 of the Act and should be ordered to sell and vacate her unit. In the alternative, the Applicant submits that a strict compliance order should be made pursuant to s. 134 requiring the Respondent to change her behavior and comply with s.117.

[67] The Ontario Court of Appeal has held that “the integrity of the title” acquired by a condominium owner is subject to compliance with the terms of the Declaration, as well as the by-laws and rules. In Re. Carleton Condominium Corporation No. 279 v. Rochon et al (1987), 1987 CanLII 4222 (ON CA), 59 O.R. (2d) 545 at p. 552 (C.A.), Finlayson J.A. stated:

The declaration, description and by-laws, including the rules, are therefore vital to the integrity of the title acquired by the unit owner. He is not only bound by their terms and provisions, but he is entitled to insist that the other unit owners are similarly bound. There is no place in this scheme for any private arrangement between the developer and an individual unit owner.

[68] There is little case law interpreting and applying the s. 117 statutory duty concerning likely damage to property or injury to persons. Most of the Condominium Act enforcement case law, either under s. 134 of the present Act or under s. 49 of the predecessor Act, has dealt with compliance orders concerning less serious matters such as prohibitions against pets, the installation of satellite dishes, the building of decks, the planting of trees or the removal of mould from ducts. See, for example: York Condominium Corporation No. 382 v. Dvorchik (1997), 12 R.P.R. (3d) 148 (Ont. C.A.); Metro Toronto Condominium Corporation No. 545 v. Stein et al 2006 CanLII 20838 (Ont. C.A.); Metropolitan Toronto Condominium Corporation No. 776 v. Gifford (1989), 6 R.P.R. (2d) 217 (Ont. Dist. Ct.); Peel Condominium Corporation No. 338 v. Young et al, [1996] O.J. No. 1201 (S.C.J.); Peel Condominium Corporation No. 283 v. Genik, supra; Re. Carleton Condominium Corporation No. 279 v. Rochon et al, supra; Marafioti v. Metropolitan Toronto Condominium Corporation No. 775 (1997) 10 R.P.R. (3d) 109 (Ont. C.A.); Re. Peel Condominium Corporation No. 73 v. Rogers et al (1978), 1978 CanLII 1480 (ON CA), 21 O.R. (2d) 521 (C.A.).

[69] The one particularly helpful decision is York Condominium Corporation No. 136 v. Roth 2006 CanLII 29286 (Ont. S.C.J.) where Perell J. had no difficulty concluding that the Act was violated when the Respondent Roth committed a single physical assault against the president of the condominium corporation at an owners’ meeting. In addition, Roth was generally “rude, aggressive, abusive, and dismissive…in his relations with his neighbours”. I will return to Perell J.’s reasons in Roth when discussing the appropriate remedy in this case.

Toronto Standard Condominium Corporation No. 2395 v Wong, 2016 ONSC 8000 (CanLII)

[2] The applicant also seeks declaratory relief, declaring that:

a. Ms. Wong’s behaviour constitutes workplace harassment as defined in the Occupational Health and Safety Act, R.S.O. 1990, c. O.1;

b. Ms. Wong has breached s. 117 of the Condominium Act by harassing, threatening, intimidating, verbally abusing and physically assaulting TSCC 2395 Personnel; and

c. Ms. Wong has breached Rule 1 of the “Quiet Enjoyment” Rules in that she has created noise and nuisance, including yelling, using threatening language and attempting to instigate a fight on the common elements to disturb the comfort and quiet enjoyment of persons therein, namely the TSCC 2395 Personnel.

[3] Given Ms. Wong’s behaviour, the applicant asks this court to consider whether it is necessary to order that Ms. Wong undergo a mental examination by a health practitioner to enable the health practitioner to opine on whether Ms. Wong is a party under a disability as defined in r. 1.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and thus to enable this court to determine at a later date whether Ms. Wong is a party under a disability such that the court should order the appointment of a litigation guardian, being the Office of the Public Guardian and Trustee.

Injunctive Relief and Compliance Order

[25] In order to grant an interlocutory injunction, I must be satisfied that the three part test in RJR-MacDonald Inc. v. Canada (Attorney General), 1 S.C.R. 311 at paras. 83-85, is met. First, the moving party must demonstrate that there is a serious issue to be tried. Second, the moving party must demonstrate that irreparable harm will result if the relief is not granted. Finally, the balance of convenience must favour the applicant.

[26] I am satisfied that the test for an interlocutory injunction is met in this case.

[27] First, there is a serious issue to be tried.

[28] Section 117 of the Condominium Act provides that “no person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual”. There is a serious issue as to whether Ms. Wong’s conduct is likely to damage property or cause injury, including psychological injury, to other owners and occupiers of units, or to TSCC 2395 Personnel.

[29] TSCC 2395’s declaration and rules prohibit a noise or nuisance that interferes with the ability of others to enjoy the common elements. There is a serious question to be tried as to whether Ms. Wong’s conduct is in breach of the declaration and rules.

[30] Section 119(1) of the Condominium Act requires owners and occupiers of a unit to comply with the Act, the declaration, the by-laws and the rules of the condominium corporation. TSCC 2395 has the right, by s. 119(2) of the Act, to require the owners and occupiers of units to comply with the Act, as well as with the condominium corporation’s declaration, by-laws and rules. TSCC 2395 also has the duty to control, manage and administer the common elements and the duty to take all reasonable steps to ensure that the owners of units comply with the Act, the declaration, the by-laws and the rules: see ss. 17(2) and (3) of the Condominium Act.

[31] Ms. Wong’s conduct raises serious concerns about the physical and emotional safety, security, comfort and enjoyment of the other unit owners and residents in the building, and of TSCC 2395 Personnel. The first element of the test is thus satisfied.

[32] Second, I am satisfied that the moving party has demonstrated that irreparable harm will result if the injunction is not granted. Irreparable harm may include the increased risk of personal injury or assault: see Ivaco Rolling Mills (2004) LP v. LeBlanc, (2005), 144 A.C.W.S. (3d) 82 at paras. 22-24. Irreparable harm also includes psychological harm that is more than transient or trifling: see Metropolitan Toronto Condominium Corp. No. 747 v. Korolekh, (2010) 2010 ONSC 4448 (CanLII), 322 D.l.R. (4th) 443 at para. 71.

[33] In this case, Ms. Wong’s threatening behaviour toward Ms. Lum has caused irreparable harm. Ms. Lum can no longer work unimpeded at TSCC 2395 and she has regretfully sought a transfer as a result of the fear and anxiety she now feels at work.

[34] Third, the balance of convenience favours the applicant. Ms. Wong is not inconvenienced by being prohibited from engaging in harassing and threatening conduct. On the other hand, if the injunction is not granted, TSCC 2395 Personnel will continue to be subject to Ms. Wong’s inappropriate conduct.

[35] Accordingly, an interlocutory injunction is warranted.

York Region Condominium Corp. No. 639 v. Lee, [2013] O.J. No. 647

23 On the authority of Slapsys, it is clear that the applicant could, on the evidence, reasonably qualify as a "landlord" within the definition set out in the Act. The only remaining question is whether the applicant, a body created pursuant to statute, is capable of acquiring possession of the rental unit for the purpose of residential occupation by itself. In my view, it is.

TSL-81570-17-AM (Re), 2017 CanLII 28547 (ON LTB)

7. I note that since the residential complex is a condominium building, the complaining residents may be owners of units rather than tenants. I nevertheless find that this situation is captured by section 64 of the Residential Tenancies Act, 2006 (the “Act”), which creates the “substantial interference” ground for termination. Subsection 64(1) of the Act states that a Tenant can be evicted for substantially interfering with the Landlord or another tenant. Although I am not bound by other decisions of the Board, I agree with the reasoning of the Member in TSL-14775-11 who found that the substantial interference of another condo unit owner is captured by section 64 of the Act. In that decision, the Member stated:

Although it is very clear from the definition of “tenant” in section 2 of the Act that condominium unit owners cannot be considered “tenants” it creates an absurdity to exclude them from consideration under section 64. I say this because it makes no sense whatsoever that a tenant can be evicted in an apartment tower if his neighbour is also a tenant but cannot be evicted from the same disturbing behaviour if his neighbour owns his or her apartment. As a result, I believe that the Act is unintentionally under-inclusive and “owner occupants of condominium units in the same residential complex: should be read into section 64 until the Legislature catches up with the changes that have been wrought in the lived reality created by the wide spread development of condominium apartment buildings.

8. I agree with the Member that owners of condominium units should be read into section 64 and captured by that provision. Therefore, I find that the disturbances described in paragraph 6 above that apply to other residents, whether these individuals are tenants or condo owners, constitute breaches of section 64.