Interferes with Reasonable Enjoyment (Re: Common Elements)

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.