In the last 10 days, two court decisions came out dealing with bug infestations.  One out of Toronto and the other one out of Ottawa. It is interesting to compare how each corporation addressed the issue and how differently the judge addressed the issue of legal costs.

The Toronto Case

The first decision came out of Toronto and dealt with foul odors emanating from a unit and a severe cockroach infestation. In fact, last February, the owners of that unit were given one last chance to cooperate with the corporation to allow for the cleaning and de-infestation of the unit. In February, the judge indicated that further failure to cooperate on the owner’s part could lead to the forced sale of the unit.

The matter returned to court on June 25, 2015.  The owners were found to be in breach of the prior order as they continued to refuse to allow entry to the corporation and continue to refuse to allow for the required disinfestations to proceed. These owners also continued to allow a foul odour to escape from their unit – although, this time, the owners denied being responsible for the smell (blaming the neighbouring unit) and for the bug infestation (claiming the pictures were staged).  The unit owners also wished to dictate the kind of cleaning that would be conducted in their unit.

Last week, the judge concluded that these owners were in breach of the prior orders since they failed to allow the corporation to enter and clean the unit.  As the continuing conditions posed health risks and were found to be dangerous to these owners, to the other residents and to the common elements of the condominium, the judge decided… to give them another chance.  Rather than force the owners to vacate and sell, the judge imposed more stringent conditions to allow the corporation to clean the unit. The judge also found that the owners’ behaviour constituted oppression.

In this case, the Toronto corporation relied on section 90 (dealing with owners’ obligations to repair and maintain their units) and on section 117 (the prohibition against allowing dangerous activities in the unit or common elements). The corporation also appears to have argued that the owners’ conduct constituted oppression but does not appear to have argued that the owners were in contempt of court – which grants judge extensive powers to deal with such conduct.

Finally, it is interesting to note that the judge ordered the owners to pay the corporation’s full legal costs.

The Ottawa Case

For approximately two years, an Ottawa condominium corporation struggled to address both the hazardous conditions of a unit and a bed bug infestation. In fact, there was such clutter and debris in the unit that the annual fire inspection could not be conducted in 2013.  Unfortunately, despite promises to the contrary, the owner failed to cooperate with the corporation. On and off, the owner refused to provide access to his unit and, more importantly, he did not undertake the preliminary cleanup work required to prepare his unit for the disinfestations to proceed. Bedbugs eventually spread to the unit across the hallway.

In last week’s decision, an Ottawa judge found that the owner’s conduct amounted to a breach of the owner’s obligation to maintain and repair his unit. She also found that the owner breached section 117 of the Condominium Act, by allowing for a dangerous activity to take place in the unit.  The judge gave the owner another 30 days to clean his unit and prepare it for treatment, failing which the corporation would be granted access for the purpose of carrying out the required pest control treatment.  If required, the corporation would be granted the authority to remove, store and/or discard any items found in the unit. The court imposed on the owner the cost of preparing and treating the unit.

There is no discussion on oppression in this case and the corporation appears to have approached this situation solely as a failure to repair and maintain the unit and as presenting conduct of a dangerous activity in the unit.

Also of interest, the judge was not prepared to grant the corporation an order dealing with the owner’s future obligation to maintain his unit in a condition that would not pose a health, safety or fire risk.  The judge concluded that owners are already expected to comply with the law, but she was not prepared to make a vague compliance order to deal with future potential breaches.

It is also interesting to note that the judge was not prepared to grant the corporation its full legal costs. In part, the judge noted that the corporation’s Declaration did not support the granting of full costs in this case. It appears that the Declaration’s indemnification clause may have been limited to owners’ conduct affecting the common elements and/or other’s units. In this case, the owner’s conduct only dealt with his unit – although the judge did note that the unit across the hall had also been affected by bed bugs.  The judge also refused to award legal costs incurred prior to the commencing of the legal proceeding. All in all, the judge reduced the legal fees requested from $16,187 to $9,703, leaving the corporation with the balance of the invoice. It is unclear whether the corporation argued section 134(5) of the Condominium Act to try to recover the “additional actual costs” incurred by the corporation in obtaining the compliance order. Perhaps this debate is for another day…

Lessons Learned

Corporations have a statutory obligation to take all reasonable steps to ensure that owners and occupants comply with the Condominium Act, the declaration, the by-laws and the rules.  Going to court can be a fairly long process.  In the Ottawa case, the first signs that something was wrong with the unit became obvious in July 2013 when the fire inspection could not be conducted due to excessive debris and clutter in the unit. Bed bugs were identified as early as October 2013.  The corporation spent the following year attempting to resolve the situation.  The court application was issued sometime in late 2014 and the matter was adjudicated on July 3, 2015. In the meantime, the infestation continued.

Bedbugs can quickly become a problem for condominiums.  This is due, in part, to their ability to move quickly over floors, walls and ceilings and to their ability to reproduce quickly. Getting rid of them can be quite the challenge especially when the occupant of the source unit is not cooperating.  It is important to act quickly and to involve legal counsel at an early stage.