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The CAT evicts its first condo cat (and imposes costs)

This blog post could have been titled “The first CAT eviction” but such a title may have lead to some confusion.  Still, in one of its first decision of 2022, the Condo Authority Tribunal (CAT) has evicted its first feline pet (so far, all other pet cases involved dogs).

There were a couple of issues with the cat in question:

  1. First, this condo corporation had a blanket prohibition against any animals (including those ordinarily referred to as pets);
  2. The cat in question was damaging the corporation’s common elements;
  3. This cat had not been granted legacy status (sometimes referred to as “grandparented” or “grandfathered”).

Perhaps something else that did not help the cat: the owner did not participate in the CAT proceeding. Never a good idea. It’s a dog eat dog world out there.

In this blog post, we explore important lessons from this CAT decision.

Facts

MTCC 736 is three-storey residential condo with wooden balconies.  The owner (and cat) in question resides on the third floor.

The condo’s declaration expressly prohibited any animals (including those usually referred to as pets).  Oddly enough, despite this, a rule was enacted along the way permitting pets.  In 2013, the condo undertook to correct this inconsistency and advised the owners that it would correct its rule to make it more consistent with the declaration. [As our readers know, a rule cannot be inconsistent with the Declaration.]

Owners were given a month to register any existing pets.  These would be exempt from the application of the newly enforced declaration.  It was clear however that pets could not be replaced.  At that time, this owner registered a dog and two birds (but no cats).

Fast forward to 2019, another owner started complaining that a cat was allowed on the balcony above his unit and that the cat was urinating on said balcony. The urine would leak through the wooden floor onto his balcony. The problem was such that the owner below eventually sealed the gaps around the wooden floorboards of the balcony above with foam to stop the leaking. The smell of cat urine was also detected in the corridor outside of this owner’s unit. During a unit visit, a cat was seen in a cage.

The condo’s lawyers sent a couple of compliance letters, advising of the complaint; advising that the cat was in breach of the rule; that it had to be removed and advising of the fact that the owner would be charged the cost of remediating damage to the balcony.  The owner did not comply and, despite requests, did not confirm that she had removed the cat from the property.  The condo eventually commenced a CAT application. As will be seen below however, the CAT was of the view that the corporation may have taken too long before commencing this proceeding.

Language of governing documents

The declaration contained clear provisions prohibiting pets:

  • “No animal, livestock or fowl of any kind whatsoever, including those usually considered pets shall be allowed in any Residential Unit.
  •  “No animal, livestock or fowl of any kind whatsoever, including those usually considered pets shall be allowed on the common elements or the exclusive use common elements.”

Decision

Despite there being no recent sighting of the cat in question, the CAT concluded that the owner had not removed the cat and that an order was required to have it removed.  The owner was given 14 days to remove the cat from the property. The CAT also ordered the owner not to bring any other animal to the corporation.

Should the corporation be indemnified?

The CAT then had to decide what amounts, if any, should be imposed on this owner. Specifically, the corporation wanted its legal fees paid ($14,550) and wanted the owner to pay the cost to repair the damage to the wooden balcony ($6,500).  The Corporation had indemnification provisions which, the corporation argued, allowed it to be indemnified for these.

While the CAT agreed that it would be unfair to impose on other owners the cost of the breaches by this cat owner, it felt that the the corporation ought to absorb some of these costs.

Balcony repairs

The evidence showed that the balcony was damaged but the CAT was not prepared to assume that all of the damage was caused by this cat (keeping in mind that this owner was allowed to keep a legacy dog in 2013 – some of the damage may have been by the dog).  The CAT also felt that the corporation did not act as quickly and as decisively as it could have (there were significant delays between some of the compliance letters, which may have lead the owner to conclude that the matter had been resolved, and which may have resulted in more damage being done).

Based on the above, the CAT ordered the owner to pay approximately half of the remediation cost, with the corporation having to pay the other half.

Legal fees

The $14,000 sought in legal fees could be divided in 2 categories:

  • $5,700 were incurred in an attempt to seek compliance before commencing a CAT proceeding;
  • $8,800 were incurred in the context of the CAT proceeding itself.

Legal fees before the CAT proceeding

The CAT accepted that the corporation’s indemnification provision allowed the corporation to recover a portion of the pre-CAT legal fees.

Here again, the CAT reiterated that the delays in taking legal steps and the delays between compliance letters resulted in additional legal fees. The CAT was of the view that the third compliance letter was not required and that the corporation should have, instead, commenced a CAT proceeding without further delay.  Of interest, the CAT only acquired jurisdiction over pet-related disputes mid-way through the corporation’s attempts at securing compliance.

At the end of the day, the CAT deducted the cost of one of the compliance letters but imposed the balance on the owner ($4,716).

Legal fees incurred at the CAT

The CAT was also prepared to impose on the owner some of the legal fees incurred in the context of the CAT proceeding, but not all of them:

  • In favour of imposing fees, the CAT pointed out that this owner was aware of the pet-prohibition (having registered some of her pets in 2013) and was aware of the proceeding. She also did allow her cat to continue to breach the rule and to damage the balcony for 2 years following the first compliance letter.
  • However, the CAT was of the view that the 14 hours of legal work claimed for what it qualified as a straightforward and unopposed hearing was high. As such, it ordered this owner to pay about half of the fees ($4,400).

[For what it’s worth, and at the risk of this coming across as self-serving (even though we were not involved in this case), $8,800 to go through the 3-steps of a CAT proceeding, including preparing evidence for 2 witnesses and making submissions at the hearing, appears to be quite reasonable and well within what is to be expected for this kind of proceeding. I would have preferred for the CAT to use the approach set by courts in awarding approximately 65% of the costs on what is called “partial indemnity basis” rather than reduce the costs on a conclusion that the fees were high.  The end result would have been the same but the approach would have been more in line with how Ontario courts deal with legal fees.]

Lessons learned from this case

  • Condos can prohibit all pets through a provision in their declaration (but not through a rule);
  • Rules should be consistent with the language of the declaration (ie. rules cannot contradict the declaration);
  • Condos should not allow compliance matter to fester and drag out but rather should consider resorting to the CAT earlier in the process – after having provided adequate notice and having having complied with any obligation to mediate. The CAT appears to suggest that 2 compliance letters (one from management and one from legal) was enough of a warning shot.
  • The CAT may award some legal fees for compliance steps taken before you formally resort to the CAT;
  • The CAT may award some legal fees for compliance matters. This is welcomed news as some were concerns that the CAT would hesitate in exercising its discretion to award costs.  So far, very few records disputes resulted in cost awards but there seems to be a trend that costs will be awarded, in certain exceptional circumstances such as a case where an owner is aware of the rules and, despite this, deliberately continues to breach them.

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