Condo Owner Removed from Unit
The Superior Court's recent decision in Waterloo North Condominium Corporation No. 168 v. Webb, 2011 ONSC 2365 is a rare example of the court using its discretion to order a unit owner to sell his unit.
In this case,the unit owner's conduct was extremely aggressive and verbally abusive toward other unit owners, guests and management. In fact, the unit owner had served jail time for criminal offences relating to vandalism of another unit owner's vehicle and engaging in a knife fight in the foyer of the building. The unit owner was further observed kicking an owner's dog and cursing and throwing beer at the dog's owner.
The Corporation provided a sworn affidavit from the building's superintendent that the unit owner screamed that someone is going to die if he goes back to jail.
Justice Parayeski determined that the unit owner's conduct was in violation of the Corporation's Rules and that the Corporation brought the application due to its legitimate concerns for owners, guests and staff. As a result, the Court ordered the unit owner to sell his unit.
The specific facts of the case reinforce the principle that a court will only use its discretion to force an owner to sell its unit in extreme circumstances where there is a genuine and well-documented concern for the safety of other residents. The alleged conduct must be of an extreme nature to warrant such an order.
It is also interesting to note that Justice Parayeski's endorsement does not cite the case of MTCC 747 v. Korolekh, which had very similar facts. Additionally, Justice Parayeski relied on Section 135, the oppression remedy of the Condominium Act, 1998, to compel the unit owner to sell his unit as opposed to Section 134, which deals with compliance orders. The facts of the case together with Justice Parayeski's analysis and order seem to fall squarely within the confines of Section 134.
Comments (5)
Read through and enter the discussion by using the form at the endColm Brannigan - August 10, 2011 8:53 AM
An excellent overview of an important case. As someone who works in the field of condominium mediation and arbitration, this case shows the importance of having various forms of dispute resolution available. Unlike most condo disputes, this was not a case where either mediation or arbitration would have been successful. Sometimes you do need the power of a judicial decision maker.
Michael Clifton - August 10, 2011 2:06 PM
The claim was brought under both sections 134 and 135.
Seeking an order for compliance with the rules of the condo would have been the wrong way to go here. (In fact, I'm not sure the condo even had a rule against throwing beer at a neighbour or his dog, swearing or threatening to kill anyone...who would want to live in a condo that has to spell out that sort of stuff in its rules!?).
In particular, an application under s. 134 for compliance with rules could have required mediation and arbitration be tried first, which, as Colm rightly identifies, would not have been appropriate for this case. Here the s. 134 claim was based on compliance with the Act (sections 117 and 119), and s. 135 was very clearly the correct section to address this owner's conduct. Each of these claims can be brought directly to the court for decision.
Joseph Salmon - August 10, 2011 4:09 PM
Michael,
Thank you for your insightful comments.
I believe that the key provision for this case, and for similar cases, is Section 117 of the Act (dangerous activities). If an application is brought under section 134 because of a section 117 concern, there is no need to meditate.
Regarding section 134 and 135, I agree that it is prudent to bring the application under both section 134 and 135. An order solely seeking compliance of the rules would have been mistaken, but an order under sections 134 (3) (a) & (c), in addition to 134 (1), could force the unit owner to sell his unit. The advantage of Rule 134 is that it allows the Corporation to treat a costs award and all other costs incurred in obtaining the order as common expenses, which can then be liened for non payment. Section 135 does not address costs as comprehensively.
Additionally, where the evidence establishes a clear violation of the Act, Declaration or Rules, mediation or arbitration is not required. See PCC 283 v. Genik, 2007 Carswell 4113 (S.C.J.).
To clarify my post, I was not criticizing the manner in which counsel handled the case (in fact, it appears that your firm did an excellent job and got a great result), but was questioning why the judge seemed to employ a Section 134 analysis but provide the order under section 135 (especially given MTCC 747 v. Korolekh).
Michael Clifton - August 10, 2011 6:04 PM
I didn't take it as criticism, so no worries there. Actual credit for handling the case goes to Nelson Amaral who was previously with our firm but handled this matter for our client under the auspices of his solo practice.
FYI, 134(5) was relied on, which was part of the reason for ensuring s.134 was used in addition to 135.
As a thought: unless there is a case saying otherwise that I am not remembering or haven't read yet, I am not sure that 134(5) is necessarily (on a plain and simple reading) not applicable to a costs award granted under 135. Let me know if that's already been decided; if it hasn't, I'd likely rely on it.
Robert Driscoll - August 31, 2011 12:34 PM
As a realty researcher and condo mediator in eastern Ontario I have noticed the judicial reluctance to unleash section 135 Oppression remedies in non-commercial cases even where an individual's disturbances range beyond mediation into Section 117 "Dangerous activities". MTCC 747 apparently did not even seek such remedy against Ms Korolekh but obtained the order.
Below the radar is 2008's MTCC # 946 v JVM ( now public trusteed ) where a compulsory unit sale is ordered . The actioning cautiously refers to both S 134 and/or S.135 as the grounds but is buried deep within the lengthy decision to enforce a prior 2004 "last chance" order ( 15 year nightmare of biohazards / wild disturbances / periodic handcuffed removals by police/evidences of fire disasters just barely missed. Lengthy reading of an extreme but not infrequent situation. . .
See also Darby v. Lorchrist Properties Limited, 2007 ( turnovers)