After the landlord was unsuccessful in attempting to enforce a “no pets” provision in the condominium declaration, the condominium corporation was denied the right to bring its own application against the tenant. [See Condo Cases Across Canada – Part 13.]

The condominium corporation appealed to the Ontario Court of Appeal. The Appeal was dismissed, and the lower Court decision was affirmed, by the Court of Appeal.

The Court of Appeal said that the doctrine of abuse of process prevented the condominium corporation from bringing its own application against the tenant after the landlord’s application had failed (despite the fact that the landlord had chosen not to appeal).

The respondent tenant has two cats.  The declaration of the condominium corporation contains a “no pets” provision.  The landlord previously failed on an application for an order that the cats be removed.  [See Condo Cases Across Canada – Part 10]

The condominium corporation then brought its own application against the tenant – seeking an order for removal of the cats.  The Court refused to hear the application.  The Court said: 

•         The condominium corporation “knew all the particulars of the first application”
•         The condominium corporation “never asked to be joined” in the first application
•         “Although technically this may not be res judicata, as the applicant is a different party, the issues are identical.  In these circumstances proceeding with the application would be an abuse of process.” 

This decision is under appeal.