03/06/2022 – Jurisdiction Ontario
Part 78 published on 01/06/2022
The CAT does not have jurisdiction to deal with unauthorized common element modifications
The owner had previously installed a low barrier on the common elements, in order to keep her dogs in her exclusive-use rear yard area. The owner alleged that the barrier “wasn’t permanent (as it merely leaned against two fence posts), was made of the same wood as the fence, and was only 18 inches high, so that any adult could step over it. She said she had consistently moved the barrier so that lawn care people could access her backyard and mow the grass”.
The condominium corporation had asked that the barrier be removed, and the owner had complied under protest. The owner then applied for an order permitting the owner to reinstall the barrier on the common elements.
The Tribunal said that the dispute related primarily to an alleged modification to the common elements (allegedly carried out contrary to Section 98 of the Condominium Act). The Tribunal said that the dispute did not relate to “storage” (which is within the Tribunal’s jurisdiction), but rather “related to s. 98 of the Condominium Act, 1998, which is not part of the Tribunal’s jurisdiction”.
The Tribunal therefore said that the most that it could determine was that the barrier in question did not violate the condominium corporation’s Rules prohibiting the storage of debris, refuse or garbage on the common elements. The Tribunal made no determination of the matter falling outside the Tribunal’s jurisdiction, namely the alleged violation of Section 98.