Legal Updates


The Notorious NuisancesThe Condominium Authority Tribunal Expands Jurisdiction

By Tony Bui and An Nguyen, Gardiner, Miller, Arnold, LLP,

Effective January 1, 2022, the Condominium Authority Tribunal (the “CAT”) recently started hearing disputes regarding condominium nuisances such as noises, odours, vibrations, lights, smoke and vapour – for simplicity’s sake, let’s call these “The Notorious Nuisances”.

The Notorious Nuisances fall under the “People, pets and parking” class of problems that make up most condominium complaints. We imagine residents, property managers, and boards are happy to have a new forum to resolve the Notorious Nuisances.

The CAT is hoping disputes with the Notorious Disputes can be resolved “Conveniently, quickly and affordably, while encouraging everyone to work together in healthy condominium communities”. Although it remains to be seen how “Conveniently, quickly and affordably” the CAT will process cases under its new jurisdiction, there is one inevitable outcome: the number of cases the CAT must deal with will significantly increase.

Here are a few “best practices” for those looking to enter the arena:

I. Evidence is Crucial

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence,” John Adams

The Notorious Nuisances are tricky condominium problems. Usually, there are two elements to proving the Notorious Nuisances occurred. The first component is objectively demonstrating that,, “The nuisances occurred”. The second component is subjectively establishing that they are bothersome enough to fall under the Notorious Nuisances. Not every nuisance – even if it is proven – rises to the level of a Notorious Nuisance.

The first component emphasizes the importance of keeping clear evidence. With a reasonable amount of detail, your evidence should confirm that the nuisances occurred and when/how often they occurred. Written logs of complaints, pictures, recordings, security reports and correspondence can be easily produced in the moment.

The second component addresses subjective problems. Your neighbour might think playing music through their state-of-the-art sound system is a perfectly reasonable way to spend a Friday night but you might disagree as you try to catch up on lost sleep from a busy week. Your upstairs neighbour could be exercising in their unit, but you might not care for New Year’s resolutions when you are in an important Zoom meeting. You might be cooking up a luxurious three-course meal but your neighbours take issue with the smells and aromas from your kitchen wafting into their units.

The point of these examples is that there is no “bright line test” to determine when any of these issues are minor or serious enough to bring before the CAT. However, if you can prove that the nuisances are a recurring issue, which you support with evidence you produced from the time they occurred, this may convince the CAT that the nuisances are problematic.

II. Investigate the Complaint

“I believe in evidence. I believe in observation, measurement, and reasoning, confirmed by independent observers. I’ll believe anything, no matter how wild and ridiculous, if there is evidence for it. The wilder and more ridiculous something is, however, the firmer and more solid the evidence will have to be.” Isaac Assimov

Whether you are complaining of or fielding a complaint of a Notorious Nuisance, you are usually dealing with the account of one person who is personally affected by the problem. This doesn’t invalidate the complaint, but it begs an important question, would anyone else see the situation the way the complainant does?

We always recommend reporting the nuisance to property managers who can then investigate the complaint. An investigation lends credibility to the complaints. For residents and condo Boards looking to take the offending owner to the CAT an investigation may validate their concerns and go a long way before the CAT.

The property manager is presumably a third-party with no “skin in the game” – their only role is to see the nuisances for themselves. They should also be asked to prepare a brief report outlining the frequency, degree of nuisance (e.g. volume, strength of odours, etc.) and where the nuisances can be observed (e.g. from outside the offending unit, in the complainant’s unit, the elevator, etc.).

III. Be Impartial

“In the end we are always rewarded for our good will, our patience, fair-mindedness, and gentleness with what is strange.” Frederick Nietzsche

One one of the key problems with Notorious Nuisances is that they are inherently subjective; therefore it would benefit residents and condo boards to respond impartially. But of course, that’s easier said than done when you’re dealing with an irritating resident blasting music throughout all hours of the day.

taking it for face value without immediately siding with the complainant. However, once the Board can confirm the complaint through its own investigation, then it is armed with the facts to respond more aggressively against the offending resident.

For complaining residents, this means keeping their complaints as objective as they can. Condominium living is communal by nature and you are expected to have a certain degree of tolerance for your neighbour’s activities. This line is crossed when your neighbour’s conduct is a Notorious Nuisance, but it does not help your case to exaggerate. You do not want to bring a CAT case only for the Tribunal to decide that you are unreasonably sensitive and embellished the issues.

IV. Know your Enemy

“Be sure you positively identify your target before you pull the trigger” Tom Flynn

For condo Boards, being impartial means responding to a complaint and The CAT generally has jurisdiction to deal only with condominium owners, residents (tenants and occupants) and corporations. If an owner sells their unit or a resident no longer lives at the condo, the CAT will not have jurisdiction to hear a case even if the case was filed before these events.

Therefore, you should know who you are naming as a respondent in your CAT case. Is the respondent an owner or resident? Do they still own or live in their unit? It will be fatal to your case if at any point the answer to either question is “No”.

The CAT is an accessible dispute resolution forum, and for some of the most common condominium problems, we are optimistic that the Tribunal will demonstrate it is well-equipped to tackle Notorious Nuisances. But before you get in front of the CAT, you need to build your case, and that starts with these best practices.