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Noisy neighbour stick figure

Condominium authority tribunal to adjudicate nuisances, annoyances, disruptions

Friday, December 17, 2021 @ 9:17 AM | By Laura Gurr

Laura Gurr %>
Laura Gurr
Living in a multiresidential community can often lead to disputes. Although we do not have any objective data, if you talk to any lawyer or property manager working in the condominium industry, you will likely find that they have seen an increase in disputes recently. This is not surprising. Everyone has been spending more time in their homes, working, learning and social distancing.

This can often present a special challenge to those working and living in condominium communities. For some, this increased time in their condominium unit means that there has not been an opportunity to escape from the usual nuisances, annoyances and disruptions that come from living in close proximity to a lot of other people.

Resolving disputes effectively and efficiently, while providing individuals with access to justice is a challenge in almost every industry. Within the condominium industry, we have been slowly shifting certain kinds of disputes from the Superior Court to the Condominium Authority Tribunal (CAT). Effective Jan. 1, 2022, the CAT will now have the jurisdiction to hear disputes about “unreasonable nuisances, annoyances, or disruptions” as set out in s. 117(2) of the Condominium Act, 1998. These nuisances, annoyances, or disruptions include: noise; odour; light; vibrations; smoke; and vapour.

The CAT will also have the jurisdiction to hear disputes relating to provisions in the declaration, bylaws and rules that govern these issues, or any other type of “nuisance, annoyance, or disruption” within a condominium community. Finally, the CAT will also be able to address disputes relating to indemnification or compensation with respect to the matters — i.e., charge backs.

One of the major challenges that condominium corporations and property managers will face will be the interpretation of “nuisance, annoyance, or disruption.” As we know, individuals may have very different and subjective understandings of what annoys or disturbs them. There is no definition of these terms within the regulations and no threshold of how much annoyance or disruption is reasonable to be expected when living in a condominium community.

In our view, the CAT should look to the Landlord and Tenant Board (LTB) decisions around “substantial interference” to guide the way that the CAT will interpret what is a “nuisance, annoyance, or disruption” that would support an order against a condominium corporation.

Section 22 of the Residential Tenancies Act (RTA), states that a landlord shall not at any time during a tenant’s occupancy of a rental unit substantially interfere with the reasonable enjoyment of the rental unit or the residential complex for all usual purposes by a tenant or the tenant's household. Under s.  29(1)3 of the RTA, the landlord is also responsible for the conduct of a superintendent or other agent of the landlord if it substantially interferes with the tenant’s reasonable enjoyment.

The LTB has been clear that the interference must be substantial in nature before it constitutes a breach of s. 22 of the RTA. The RTA has considerable case law and regulations setting out criteria for a finding of substantial interference with reasonable enjoyment of the rental unit. The LTB’s Interpretation Guideline 6 provides some useful resources for individuals to understand some of the case law surrounding s. 22 of the RTA. We would invite the CAT to create some interpretation guidelines for the industry in advance of Jan. 1, so that owners and corporations can have reasonable expectations for what types of things will be considered actionable and how damages may be calculated.

Ultimately, we hope that the CAT will recognize that a minor inconvenience or disruption for a brief period of time should not normally result in an order against a condominium corporation. We are not suggesting that the CAT or the industry should adopt the LTB jurisprudence automatically. There are useful parallels between the types of conduct that may be a “nuisance, annoyance, or disruption” in a condominium community and the type of conduct that may be a substantial interference to reasonable enjoyment.

Laura (Glithero) Gurr is a partner with Cohen Highley LLP in London, Ont. Cohen Highley has offices in London, Kitchener, Chatham, Sarnia, Stratford and Strathroy. Laura provides risk management and regulatory compliance advice to condominium corporations, property management companies and non-profit housing providers.

Photo credit / Zdenek Sasek ISTOCKPHOTO.COM

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