In a recent decision, the Superior Court of Justice was once again asked to determine whether a condominium owner should be forced to move out and sell her unit as a result of her violent and inappropriate conduct towards other owners.
The evidence presented in the case showed that Ms. Hayes had committed no less than five physical assaults on other owners or residents (at least one of which was caught by the security cameras). She also engaged in verbal abuse, threats and intimidation directed at board members, other owners and service providers to the condominium. Not surprisingly, this course of behavior intimidated and instilled fear in a number of fellow members in this community. Ms. Hayes presented no evidence to deny or contradict this.
The Court concluded that as this conduct was likely to damage property and cause injury to a person, it therefore violated section 117 of the Condominium Act (the “Act”). The Court also concluded that there was no doubt that this conduct constituted noise or nuisance which would disturb the comfort and quiet enjoyment of the property by other owners, in violation of Rule 8 of the Condominium Rules.
Despite all this, the judge did not force this owner to sell, but rather opted to give her one last chance to redeem herself. The judge said that “a forced sale is, in many ways, the ultimate and harshest remedy available. As such it should be reserved for the most egregious case.” The Court did impose serious restrictions on her by ordering her to be of “good behaviour and keep the peace while on the property” and by prohibiting her from any “uncivil, improper or illegal conduct that violates the Act or declaration, by-laws or rules of the Condominium”. She was also ordered to
refrain from assaulting, verbally abusing, swearing at, harassing, threatening or intimidating any member of the board, unit owners or occupiers or staff members.
The problem with such orders is that they are difficult to enforce. If someone does not find it within themselves to refrain from such conduct, how can one expect a court order to accomplish this? Only time will tell if Ms. Hayes changes her ways.
What is most interesting about this case is that Ms. Hayes was a member of the board. Understandably, the condominium corporation also sought to have her removed from the board as a result of her unruly conduct. However, the Court refused to do so, on the basis that this was not a proper subject matter for a compliance order under section 134. The court concluded that the Act contained all of the required provisions for owners to call a meeting for the purpose of removing a director prior to the expiry of the director’s term.
The result in this case must have been extremely disappointing for the Corporation, as this owner was permitted to remain in the condominium community and remain on the board, even though there was no dispute about the owner’s abusive and intimidating behaviour. This case illustrates, once again, that there is no certainty in litigation.
However, condominium communities can find solace in the fact that the court reiterated the Condominium Corporations’ duty to ensure that all owners complied with the Act, with the By-laws and with the Rules. The court also confirmed that it was “duty bound” to give the Condominium the assistance required to ensure compliance. The judge concluded that people had two choices when moving into a condo either comply and live by the Rules of the community they were joining or finding another place where the rules and regulations may be more in keeping with their needs, wishes and preference. Unit owners are not only bound to live by the rules but they are also entitled to insist that other do as well.
(This article was first published by the author on February 9, 2012)