03/03/2023 – Jurisdiction Ontario
Part 82 published on 01/06/2023
Tenant violated governing documents and Section 117 (2) of Condominium Act
The Tribunal held that the tenant had caused noise and nuisance in violation of the condominium corporation’s governing documents and Section 117 (2) of the Condominium Act. The Tribunal ordered the tenant to cease all such activities and also ordered the tenant to pay about 50% of the condominium corporation’s “in-CAT” costs.
However, the Tribunal said that the evidence indicated that the owner “had made efforts to deal with the misconduct of her tenant, and that she has cooperated with the condominium including in relation to these proceedings”. Therefore, the Tribunal declined to make any cost award against the owner.
The decision includes the following comments about the owner’s indemnification obligations:
The Applicant appears entitled to seek indemnification from unit owners under its governing documents, and it further appears that the Applicant is prepared to pursue this remedy regardless of what this Tribunal might decide, as it previously demanded that Ms. Coulter pay $4,902.23 (which I understand she has paid), being its legal expenses relating to compliance arising prior to the commencement of these proceedings. However, for an order for costs to issue from this Tribunal, the existence of indemnity provisions alone is insufficient: Issues of causality, proportionality, and fairness must also be considered.
…
A condominium corporation should not, however, expect to obtain an order for all of its costs in every case. Although counsel for the Applicant described the unit owner’s duty to seek to remedy problem situations with their tenants as “an inescapable legal duty,” this does not mean that it is also a duty that is to be borne by them alone. As noted in other cases before this Tribunal, one of the services for which unit owners – including unit owners who rent out their units – contribute to the common expenses, is the carrying out by the corporation of its duty to enforce compliance with the Act and its governing documents. While it is unfair for unit owners to bear some of those costs when they are caused by the serious misconduct or negligence of another owner, it is fundamental to the idea of condominiums that owners are to share a portion of one another’s regular burdens of property ownership when acting in good faith. While a unit owner who rents their unit cannot avoid the responsibility to deal with the misconduct of their tenants, this does not eliminate the condominium’s corresponding duty, or the landlord unit owner’s right to rely in good faith on the performance of that duty in addition to their own diligent efforts.
Frontenac Condominium Corporation No. 56 v. Patterson et al., 2023 ONCAT 35 – David’s Case