Does the CAT have jurisdiction over harassment disputes?

As many of our readers likely know, certain condo disputes (but not all) fall under the jurisdiction of the Condominium Authority Tribunal. Indeed, the CAT has jurisdiction over records, pets, parking, storage, nuisance, and chargebacks related to these. However, over the last few years, the Tribunal appears to have taken an expanding approach to its jurisdiction, for instance when it started to rule on cases involving harassment.

In this blog post we review when the CAT assumes jurisdiction over cases involving harassment and when it does not.

Does the CAT have jurisdiction over harassment?

In a number of cases, the CAT has found that harassment constitutes nuisance (over which it has jurisdiction). In other cases, it ruled that it did not. So where does the CAT draw the line in the sand?

The CAT appears to have jurisdiction over harassment:

• if the corporation’s governing documents expressly prohibit harassment;
• but not if the alleged harassment was so serious as to cause or risk causing injury.

Let’s start with this second bullet first.

When harassment causes injury

In Dambremont v Cochrane Condominium Corp No 7, an owner commenced a CAT application for harassment due to alleged interactions with the Board and with other owners. Amongst other incidents, she complained of the fact that she felt singled out at an AGM when the Corporation advised that the important legal fees were incurred in defending legal proceedings advanced by this owner. She also complained that, when she communicated with owners her position, their response to her constituted harassment.

The owner claimed that this harassment was so intense and caused her such distress, that she required medical attention.  She submitted medical records in support of her position, claiming to suffer from “increased stress, anxiety and difficulty sleeping requiring her to take medication” and that she was left “fearful”, which lead her to call the police.

The Corporation argued that the incidents complained of were, at most, isolated incidents of rudeness, and that, as such, they did not constitute harassment. The Corporation also argued that, in the alternative, if the owner was truly so impacted by these incidents then it would take the matter out of the CAT’s jurisdiction. Indeed, the CAT does not have jurisdiction over disputes dealing with conditions or activities which are likely to cause damage to property or injury or an illness to an individual.  These disputes must be brought to the Superior court of Justice.

The Tribunal agreed with the Corporation and held that, because the owner complained that the alleged conduct injured her, the Tribunal did not have jurisdiction to adjudicate the matter. The CAT application was therefore dismissed.

Let’s now move to a case where a Corporation attempted to move the goal post on what constitutes harassment.

Who gets to define what harassment is?

Harassment can be a term with broad meaning, which can encompass many types of behaviour. For this reason, many corporations have included various definitions of what constitute (and does not constitute) harassment under their rule.

But what if a condo’s governing documents define harassment to include basically any conduct it does not agree with? Does that then mean that the CAT is the proper forum to adjudicate disputes about such prohibited conduct?  Well, not necessarily as was seen in a recent case on this very question.

The Sharma case

In TSCC 2510 v. Sharma (the case is still unreported), the Corporation brought a CAT application for harassment against one of its own directors. The allegations were numerous, but included things like alleged defamation, recording of conversations, and interfering with the Corporation’s relationships with contractors.

The Corporation relied on its harassment rule, which stated as follows:

No Owner, Resident, Guest or Owner’s Contractor shall injure, harass, threaten, annoy or initiate any defamatory, threatening, hateful or discriminatory statement or action, or participate in any illegal or harmful conduct toward any other Owner, Resident, Guest or Owner’s Contractor, or toward the Board, the Manager or any of the Corporation’s Representatives.

The director brought a motion arguing that many of the allegations made against him, including those described above, were not within the CAT’s jurisdiction because they either did not constitute harassment or were not captured by the Rule. The CAT agreed and dismissed approximately half of the application.

While the Corporation argued that the Rule was designed to uphold the Corporation’s proper governance and should be interpreted broadly, it simply could not be stretched to cover the allegations being made. In other words, applicants to the CAT cannot cite a harassment rule and use it to justify bringing an application for any conduct they find offensive or troublesome. The allegation must be grounded in the specific language of the Rule and must constitute harassment.

There has, of late, been a bit of a rumbling in the CondoLand about the CAT’s expanding jurisdiction and where the boundaries are (or where they should be). These cases, in our view, show that the CAT is attuned to the issue of its jurisdiction and that applicants must carefully consider whether they are knocking at the right door before commencing a legal proceeding.

Accordingly, before you do commence a CAT application as an owner or a Corporation, if there is any doubt about whether the CAT is the correct forum, the best practice would be to consult with your favourite condo lawyer first!

Here are a few of our blog posts on harassment.