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Prohibiting Nuisance, Annoyance and Disruption in Condos

The province is seeking your input on 2 very important (and related) matters:

  • Better regulating nuisance, annoyance and disruption in condos;
  • Expanding the Condo Authority Tribunal’s authority to deal with disputes related to these.

Your views and comments on these important changes must be sent in before January 31, 2020.

Nuisance, annoyance and disruption

One of the highly anticipated changes, at least for me, is the eventual enactment of a new section 117 to better deal with nuisance, annoyance and disruptions in condos.

Presently, section 117, titled “Dangerous activities”, prohibits  any activity in a unit or on common elements which is likely to damage the property or cause injury to individuals. The proposed new section 117 would add to the prohibited activities those likely to cause an illness to an individual. Adding activities likely to cause an illness to the prohibited activities may have wide ranging consequences. Non-smoking neighbours may find there a new tool to deal with second-hand smoke.  Time will tell.

Moreover, the new version of section 117 would also prohibit :

  • any “unreasonable noise that is a nuisance, annoyance or disruption” and
  • any “prescribed nuisance, annoyance or disruption to an individual” in a unit or on common elements.

To further define which nuisance, annoyance or disruption are to be prohibited, the province is proposing to amend its Regulation 48/01 to include the following:

  1. Odour (Cooking? What about perfume in elevators?)
  2. Smoke (should tobacco smoking be prohibited in all condo complexes?)
  3. Vapour (is this meant to prohibit vaping?)
  4. Light (I was initially kind of stumped by this one. One of our readers suggests that outdoor starlight projection-type holiday lights can be a nuisance in a townhome complex)
  5. Vibration (condo corps may have to service/change some of their equipment)
  6. Infestation by any vertebrate or invertebrate animal, any virus, fungus, bacterium or other organism (certainly, this is aimed at tackling bed bugs and the sorts, but perhaps mold as well….)

If adopted, this regulation would prohibit the above as long as they are unreasonable. Indeed, we’ve said it before, condo occupants must be prepared to tolerate some level of disturbance.   Here’s a link to the proposed regulation.

Expanding the CAT power

The province is also proposing to expand the CAT powers to now deal with the above nuisances, annoyances and disruptions but also to deal with disputes over:

  • vehicles (these will include traditional vehicles but also bicycles, skidoos, canoes/kayaks …, aircrafts (can you say drones?) and device used to assist people with disabilities…)
  • parking
  • storage
  • pets (and other animals …. I’m afraid to ask what other non-pet animals are kept in units…)
  • Indemnification provisions (This is “big” and is not obvious in the summaries circulated by the province)

The CAT would also deal with disputes over declarations, by-laws or rules dealing with these.

Of interest, however, while the CAT would acquire jurisdiction to deal with disputes over governing documents regulating the above, it would not acquire jurisdiction to deal with disputes over conditions or activities which are likely to damage the property or assets of the corporation or which are likely to cause an injury or an illness to an individual. Those dispute will continue to have have to be dealt with through court applications. So basically, as we read it, if it’s annoying: the CAT can deal with it. If it’s dangerous: you have to go to court.

You can read the proposed amendments to the CAT’s jurisdiction here.

This would be a significant (but expected) expansion of the CAT’s powers. While, for the most part, such expansion is welcome, I’m left to wonder if this will result in more adjudicated disputes. The fact that the CAT does not award legal fees to the successful party may lead to more owners “taking their chances”. Corporations may not be able to easily rely on existing indemnification provisions found in their governing documents as the CAT will also acquire jurisdiction over disputes pertaining to these.  This may make sense since the compliance dispute often leads to a dispute over whether the defaulting owner should compensate the corporation and to what extent.

I hope the province will think of amending section 134 accordingly.  It still refers to the Superior Court of Justice as the ultimate adjudicating body over compliance matters and it still requires mandatory mediation/arbitration in many cases. Alternative dispute resolution is now included in the CAT process.  Corporations will also have to figure out the interplay between the CAT’s jurisdiction over indemnification provisions and the indemnification provision under section 134 (which allows a successful corporation to charge back to an owner the actual cost incurred by the corporation in securing compliance).

It’ll also be interesting to see how condo corporations will navigate through these changes.

Send in your comments

You can read more on the province’s proposed changes to the Condominium Act by clicking here.  These changes are expected to be implemented on July 1st, 2020.

Comments are due by no later than January 31, 2020.  That should keep you busy over the holidays!

Comments can be sent by email or by mail (at the Ministry of Government and Consumer Services, 56 Wellesley St. W, 6th Floor, Toronto ON, M7A 1C1).  Make sure you quote Comment Proposal 19-MGCS012.