Eviction under the Condominium Act Remains Exceptionally Rare
By Tony Bui from Gardiner Miller Arnold LLP
Condominiums typically bring compliance applications under Section 134 of the Condo Act to force unwilling residents to comply with the Condo Act and the condo’s declaration, by-laws and rules. And beyond ordering compliance with the Condo Act, declaration, by-laws and rules, judges have the broad discretion to “grant such other relief as is fair and equitable in the circumstances.” Notably, a judge can order the permanent removal of a resident from the condo. It is what a Toronto condo sought in Toronto Condominium Corp. No. 1445 v. Catalli. But despite this broad discretion, the Catalli decision is a reminder of how exceptional and difficult it is to remove someone.
In Catalli, the condo alleged that Mr. Catalli had “a history of dangerous behaviour” and specifically referred to a lone incident where a fire broke out in his unit and caused extensive damage.
Mr. Catalli was apparently criminally charged with arson by negligence, which he pleaded guilty to. Mr. Catalli argued that the fire was caused by faulty wiring – supported by a letter from an electrical contractor. He also said he received no notice of his behavioural issues before this fire, except for one noise complaint for playing loud music.
Interestingly, the condo seemed to indicate that any issues with Mr. Catalli’s conduct resulted from medical issues, not behavioural ones. Mr. Catalli showed he was receiving ongoing treatment and is on stabilizing medication.
The court refused the condo’s application to remove Mr. Catalli from the premises.
- First, the court was not convinced that Mr. Catalli would be an ongoing source of harm: the only evidence the condo pointed to was the fire which the court believed was an issue of faulty wiring rather than Mr. Catalli’s conduct.
- Second, the court acknowledged that Mr. Catalli was managing his medical issue and was “reluctant to stigmatize him for his past mental health problems.”
Forcing an owner to sell their unit or a resident to move out permanently has been considered by the courts to be the “ultimate and harshest remedy available…it should be reserved for the most egregious cases” (https://canlii.ca/t/fsb78).
Such orders have only been awarded where the owner/resident is “incorrigible and unmanageable,” has been “given opportunities to reform their ways but exhibits an unwillingness to change,” and “persistently refuses to abide by the community’s in extreme ways.”
The judge in Catalli did not believe Mr. Catalli’s behaviour met this high bar.
This is an interesting decision that, unfortunately, doesn’t give us as much factual context as we would have liked.
Still, here are Tony’s Takeaways:
- “Ongoing Conduct”: the Catalli decision made an interesting point in addressing the condo’s safety concerns with Mr. Catalli: the judge held that this concern “must be based on evidence of ongoing conduct, not past conduct alone.” I understand the rationale and agree with how it was applied in Catalli.
However, I am concerned this holding minimizes the gravity of past conduct and overemphasizes “ongoing conduct.” This broad holding does not adequately consider the nature or severity of past incidents. For example, a violent resident could assault others in the condo. But, in the time it takes the condo to commence its compliance application and be heard by the courts, the resident has been in jail for most of this period and has assaulted no one on their return. On the plain text of this holding, the court would not order the resident’s removal.
But let’s say that after the application is concluded, the resident assaults another person, and the condo succeeds on its “second kick at the can” in removing the resident via another compliance application. Sure, the resident and their threats are now gone, but at what expense? In answering this rhetorical question, another person has been assaulted, and the condo has spent a lot of time, money and stress dealing with the violent resident. There needs to be greater emphasis on the nature/severity of the conduct. Otherwise, precarious situations could be ticking time bombs instead of manageable risks with clear solutions.
- Improve Record-Keeping: Keeping an incident log in a unit file is crucial for record-keeping. But an incident log is only as valuable as the quality of the incident reports. Any time there is an issue with an owner/resident, a note/report/summary of the incident needs to be prepared. These notes/reports/summaries should be detailed, objective and prepared as soon as possible while memory and recollection are at their best.
- Be Reasonable: It’s become trite to mention this in any condo-related commentary, but we constantly see the need to reemphasize this. While we wish the Catalli decision provided more insight into Mr. Catalli’s “history of dangerous behaviour,” it suggests that the best card the condo could lead with was the fire incident. Fires are undoubtedly serious situations that demand immediate attention. But in context with Mr. Catalli demonstrating he did not contribute to the fire and that he addressed his medical issues, the situation might have been better handled through neighbourly discussions and mediation instead of a court application. Escalating this with legal action did not put out the flame – it added fuel to the fire.
Condominium boards and owners commonly overlook the most fundamental aspect of condo living: it is communal and operates best when everyone is neighbourly.
Difficult owners and unresponsive boards are problems that cut both ways, and it’s easy to get caught up in the problem without looking at the cause. Financial hardship, day-to-day stress and mental illness are common issues affecting people’s behaviour. But at the end of the day, condominium boards and owners all have to live with one another and the consequences of their respective actions. With that in mind, a little compassion and understanding usually go a long way toward solving a problem. And at the very least, if it doesn’t solve the problem, it can at least de-escalate tensions and make the problem-solving a rational exercise instead of an emotional one.
As the saying goes, “be kind, for everyone you meet is fighting a hard battle.
”To learn more about what Tony Bui and Gardiner, Miller, Arnold LLP can offer you and your business or condominium, go to: www.gmalaw.ca.