CAT Wades Into The War On Pickups

An all-out pan-Canadian culture war was ignited last month when the Toronto-based Globe & Mail ran a column titled, “Pickup trucks are a plague on Canadian streets”.  Premiers of the Prairie provinces weighed-in, and Albertans raised a hackle about this eastern attack on their Canadian identity.

Yet in urban centres across the nation, the war on pickup trucks had already begun long before the column was published on July 25^th 2021.

In most condominium corporations with parking garages these days, the condo’s governing documents explicitly stipulate that each parked vehicle must fit within the boundaries of the parking space.

But parking spaces in most urban areas are getting smaller and smaller.  Some condo developers do not build any parking spaces at all, and instead argue that nearby public transit and biking options should suffice.  As land is becoming scarcer and more expensive, condos in urban centres are trying to fit more and more people into smaller and smaller spaces.

At the same time, vehicles – especially pickup trucks – are getting larger and larger.  Since 1990, American pickup trucks have bulked-up by 1,300 pounds on average, with the biggest vehicles on the market now weighing almost 7,000 pounds (or about three Honda Civics).

Now, I am not against pickup trucks.  I don’t own one myself, but I know many people who love their pickups (including some members of this firm).  Ford’s F-150 has been the best-selling auto in Canada for years.  Even though city dwellers are not often hauling stone every day, I can see the appeal of pickups for urbanites who are afraid of driving in our harsh winter climate.

But the City of Toronto’s minimum parking space dimensions are not large enough to fit the latest Ford F-150 inside.  The width of a base model 2021 F-150 leaves less than 1 centimeter on each side, and the overall length is too long in some models.  Yet despite this, condos across Toronto have pickup trucks parked inside their underground parking garages that are clearly parked over and beyond the yellow-lined parking space boundaries – obstructing their neighbours and, often, the drive aisles or turning radiuses.

Round 1: At the HRTO in 2014

Back in 2014, the Human Rights Tribunal of Ontario (the “HRTO”) decided a case where the Applicant unit owner had requested accommodation from his condominium corporation so that he could park his Ford F-150 in the above-ground parking, even though the above-ground parking lot was for visitors only.  His Ford F-150 was a few centimeters too high to fit into the parking garage, and he claimed that he needed his Ford F-150 due to his physical injury. 

In Taite v. Carleton Condominium Corporation No. 91, 2014 HRTO 165 (“Taite”), the HRTO ultimately found that the unit owner did not need his Ford F-150, but rather it was merely the vehicle that he wanted to use.  The HRTO ruled:

“While it is quite clear that the applicant prefers to drive a Ford F150, he has failed to provide evidence of a disability-related reason for his choice. […] Dr. Kindle supports the applicant’s vehicle preference, but has provided no basis to conclude that the applicant’s choice of a F150 is anything more than a personal preference. […]

To put it differently, even assuming that the applicant’s disability is such that he should drive a large truck, there is a range of large trucks for him to choose from. The parties agree that the profile of the F150 is only slightly too high to fit in the underground lot.  Counsel for the respondents suggested that many if not most other large trucks would fit into the respondents’ underground lot.  The applicant did not dispute this. Neither the applicant’s nor Dr. Kindle’s evidence suggests that a different brand or model of large truck would not have suited the applicant’s needs. […]

As an expression of his personal preferences, the applicant elected to purchase F150s.   As the applicant asserted at the hearing, he is certainly entitled to purchase the vehicle of his choice.  However, absent some evidence that this particular vehicle correlates to his disability-related needs, the applicant is not entitled to have his choice of vehicle accommodated by the respondents.” [emphasis added]

Accordingly, the Respondent condominium corporation in Ottawa was not required to accommodate the unit owner’s request to park his oversized Ford F-150 in the above-ground parking lot, and his HRTO Application was dismissed.

Begun, the war on pickup trucks has.

Round 2: At the CAT in 2021

At the other end of the province, 3 unit owners at a Windsor condominium corporation also alleged that their pickup trucks were too large to fit inside the underground parking garage, and so they were parking their pickups in the above-ground visitors parking lot.  This was in violation of the condominium’s Rules, which stated that only visitors may use the 15 above-ground visitors parking spaces.

The condominium corporation brought an Application to the Condominium Authority Tribunal of Ontario (the “CAT”), pursuant to the CAT’s new jurisdiction over condominium pets/vehicles/parking/storage disputes, to enforce its Rule against these 3 pickup truck owners.

In Essex Condominium Corporation No. 25 v. Ferrari et al., 2021 ONCAT 79 (“Ferrari”), the CAT held that the condominium’s Rule against owners parking in the visitors parking was not unreasonable, and that the condominium was not unfairly enforcing it against the 3 owners:

“The Rule is not, on its face, unreasonable. The fact that large pick-up trucks might now be a vehicle of choice for a large portion of the population does not make the Rule unreasonable; nor does the fact that the Rule has remained unchanged for 30 years. The Respondents would have been aware of the size of the parking spots assigned to them when they purchased their units and, thus, would have been aware of the size of the vehicle that could fit in their designated spot. If they owned or chose to purchase a vehicle that did not fit into the spot, this was their choice. And, while I acknowledge that this situation is unfortunate for the Respondents, whose trucks are used and required for business purposes, it is not evidence that the Rule is unreasonable or unfair. Designating specific parking lots as visitor lots and restricting parking in these areas to visitors are rules that fall within a range of what is reasonable. The Rule is not aimed at the Respondents personally.  While the Rule may be very inconvenient for owners who do have a large truck, I conclude that it is not unreasonable.” [emphasis added]

As such, the CAT gave the 3 owners 90 days to remove their pickup trucks from the visitors parking lot.

The CAT in Ferrari also recognized that just because there may not have been perfect enforcement by previous Boards against owners using the above-ground visitors parking spaces, that does not disqualify the condo from enforcing against such violations now.  Although not explicitly cited by the CAT, this reasoning is in accordance with the Superior Court’s decision in Durham Standard Condominium v. Morton, 2012 ONSC 161, where our firm successfully enforced against a unit owner’s 2 dogs; and even though the unit owner claimed (like the 3 pickup drivers did in Ferrari) that the condo was selectively enforcing against him, the Court ultimately found that, like municipalities, condominiums are not required to perfectly enforce against all infractions before enforcing against some.

In Ferrari, the CAT has restored the balance between the collective interests of the condominium community which has abided by the visitors parking Rule for 30 years, and the individual interests of pickup truck drivers who now find their oversized vehicles too large for the decades-old condo.

Only time will tell whether this trend of condos effectively prohibiting oversized pickup trucks from parking inside their underground garages continues, with the advent of electric pickup trucks in the market.  Maybe the trucks will get smaller?  I wouldn’t hold my breath though.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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