Disputes between neighbouring unit owners/residents in a condominium property are certainly not uncommon. These disputes will typically be about some form of alleged nuisance from one unit to another, perhaps about alleged transfer of noise or odours. Disputes between neighbours regarding noise have been and will likely always be part of the nature of condominium living. We are finding that the transfer of tobacco smoke is also becoming a more common issue of contention.
Is a Condominium Corporation allowed to turn a blind eye to these types of unit owner/resident disputes? Can the Board of Directors take the position that it is a private matter between the residents in question and that the Corporation should not get involved? The answer is: “no”.
The reason is the duties imposed on a Corporation by the Condominium Act, 1998 (the “Act”). More specifically, the Act provides that every Corporation has an obligation to take reasonable steps to enforce unit owner/resident compliance with, among other things, any provisions of the Act, declaration or rules dealing with noise and nuisance.
Therefore, if property management or the Board receives complaints of noise or nuisance from a unit owner/resident, the Corporation has a duty to, at minimum, investigate the complaint and exercise prudence and good faith in determining whether to take enforcement steps against any alleged offenders.
If the initial informal enforcement steps, involving correspondence, do not resolve the problem, the Corporation may be required to commence some form of legal action against the owner/resident in breach. For noise and nuisance matters, this will typically mean enforcement through the mediationarbitration process set out in section 132 of the Act.
So who are the actual parties to any such enforcement litigation? Consider a simple and typical example, as follows. Unit resident A complains to the Corporation that neighbouring unit resident B is creating noise (loud music). The condominium rules provide that owners/residents are not permitted to create noise etc. which disturbs the comfort or quiet enjoyment of other residents/owners. Resident B denies that any noise from his/her unit is loud or disturbing. Resident A is adamant and continuously complains to the Corporation and demands enforcement. The Corporation determines that enforcement steps against resident B are necessary. Typically the Corporation will commence the proceeding as the party seeking relief and Resident B (in this example) will be the defending or responding party.
So what happens to resident A in this example? Typically, as the complainant, resident A will be the main (and perhaps only) witness for the Corporation but will not be a party to the dispute. The following 2005 court case regarding a Condominium Corporation in Ottawa illustrates why the resident/owner who is complaining must also be brought to the table as a party to the dispute.
The owners of a condominium unit complained to the Condominium Corporation of noise which they attributed to the unit above them, owned and occupied by a Ms. Conroy. The unit owners below, referred to as “the Majors” in the court decision, argued that Ms. Conroy installed new hardwood flooring in her unit which was prohibited by the rules and regulations. Ms. Conroy denied that she was the source of the noise, but the Majors insisted that the property manager enforce the rules as against her. Ms. Conroy refused to attend the mediation of the disagreement.. The Corporation commenced a court application for an order that the dispute proceed to arbitration.
There was disagreement between Ms. Conroy and the Corporation regarding who should be appointed as the arbitrator of the dispute. The Majors stayed on the sidelines; they were not named as a party in the court application and they themselves did not attempt to get involved in the proceeding directly, nor did they appear in court. Right before the court application was heard, the respective lawyers for Ms. Conroy and the Corporation reached an agreement regarding the arbitration. Minutes of Settlement were signed, which provided for arbitration to resolve this dispute. The Majors were not parties to this settlement agreement.
The Corporation and Ms. Conroy agreed upon an arbitrator. Dates for the arbitration were suggested and fees determined. However, before a formal arbitration agreement was signed, the Majors informed the Corporation that they were not in a position to pursue this matter any further. Apparently, the Majors made this decision upon learning of the arbitrator’s fees that they would be expected to share in paying. The lawyer for the Corporation informed the arbitrator there would be no arbitration of this matter.
Ms. Conroy then decided to commence a court application against the Corporation for a ruling that the above-mentioned Minutes of Settlement signed by her and the Corporation, is valid, binding and enforceable against the Corporation. Ms. Conroy sought various alternative court orders, all of which were meant to require the Corporation to reimburse her for the legal costs she had incurred in this matter.
The judge hearing Ms. Conroy’s application for costs orders stated, in part, as follows:
“In my view, it is justifiable to place some blame on the condominium [corporation] itself for the unsatisfactory manner in which the arbitration was approached and aborted. Getting so far down the track without having the complaining party, the Majors, committed to the process was a serious error…I suppose Ms. Conroy too, as a party by her counsel to the Minutes of Settlement including its final provision as to costs, must accept some responsibility for the dead end position she ended up in when the proposed arbitration was aborted.”
The judge issued a costs award, in the reduced amount of $3,500, to be paid by the Corporation to Ms. Conroy. The judge noted that he would have imposed a costs award against the Majors too, had they been made a party to this court application. Because they were not named as a party, nor served or given notice of the court application, the judge ruled that he was unable to impose any share of the costs burden on them.
The above case is an excellent illustration of why the owner/resident complaining about the noise or nuisance etc. allegedly caused by another owner/resident, and demanding enforcement by the Corporation, must always be made a party to any enforcement step that the Corporation decides to take. Both the Corporation and the owner/resident who is alleged to be causing the noise, nuisance etc. should insist that the complaining owner(s)/resident(s) is/are a party to any enforcement process. In addition to avoiding the above outcome, the advantages of proceeding in this manner are as follows:
Firstly, it will be a very good initial indicator of how credible the position of the complaining unit owner/resident truly is. If the owner/resident who is complaining is aware that he/she could be responsible for some (or possibly all) of the legal costs incurred by the Corporation and/or the defending owner/resident, the complaining owner/resident will think twice before insisting on enforcement steps by the Corporation. This is especially important in cases involving only one owner versus another given the difficulty for the Corporation in assessing whose position is more credible. Secondly, and most importantly, if the complainant’s position is determined (by a judge or arbitrator) not to be credible, and the Corporation is not successful in its enforcement proceeding, or (even worse) if the complainant backs out as a witness, the complainant will likely be responsible for some or all of the legal costs incurred by the other parties.
So why is the above relevant to condominium Boards and unit owners? Isn’t this something that only lawyers have to be concerned with? Not necessarily. Many Corporations have provisions in their by-laws which provide that disputes between the Corporation and unit owners/residents must proceed to an informal negotiation meeting between the parties before a court or mediation-arbitration proceeding is commenced. In the vast majority of cases this negotiation meeting does not involve lawyers. Therefore, it is important to involve the owner/resident who is complaining in this initial negotiation stage so that it is understood that they are a party at the table from the very beginning.