Superior Court Confirms Section 117 Carve-Out From CAT Jurisdiction
On October 1st 2020, the Condominium Authority Tribunal of Ontario (the “CAT”) was granted the jurisdiction to decide condominium disputes regarding pets, vehicles, parking, and storage (“PVPS”) issues – however, the CAT’s PVPS jurisdiction did not apply “to a dispute that is also with respect to section 117 of the Act”. In previous articles published by this author on October 1st 2020 (available here on our firm’s website) and November 23rd 2020 (available here on CondoBusiness magazine’s website), we pointed out that this “Section 117 carve-out” would apply to situations where the pet in question is likely to cause property damage or personal injury.
On January 1st 2022, Section 117 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”) was amended to delineate between what was formerly called “dangerous conditions” in what is now Section 117(1) of the Act, and “nuisance conditions” in what is now Section 117(2) of the Act. Section 1(3) of O. Reg. 179/17 (the “CAT Regulation”) was also correspondingly amended on January 1st 2022, so that the Section 117 carve-out now stipulates that the CAT does not have jurisdiction over “a dispute that is also with respect to subsection 117 (1)” of the Act. This amendment to the CAT Regulation also brings it in line with Section 1.36(4)(a) of the Act, which stipulates that a party cannot make an Application to the CAT regarding “a dispute with respect to … subsection 117 (1)” of the Act.
Section 117(1) of the Act currently reads:
“No person shall, through an act or omission, cause a condition to exist or an activity to take place in a unit, the common elements or the assets, if any, of the corporation if the condition or the activity, as the case may be, is likely to damage the property or the assets or to cause an injury or an illness to an individual.” [emphasis added]
In our firm’s case of York Region Condominium Corporation No. 794 v. Watson, 2021 ONSC 6574 (“Watson”), the Ontario Superior Court of Justice held that: “The inclusion of the words “likely to cause injury” indicates that the Board is required to take proactive steps to prevent a dangerous condition before an incident occurs.” As such, a condominium corporation does not have to wait until actual personal injury or property damage arises, before taking steps to enforce against a Section 117(1) situation.
In another recent decision by the Superior Court titled MTCC No. 1260 v. Singh, 2022 ONSC 1606 (“Singh”), the Court confirmed that if a condominium pet dispute triggers Section 117(1) of the Act, then the CAT does not have jurisdiction over the dispute – instead, it remains with the Superior Court. Although several CAT Decisions to date have ordered the permanent removal of a pet from a condominium corporation’s premises under the CAT’s PVPS jurisdiction and/or the CAT’s noise and other nuisances jurisdiction (which began on January 1st 2022), the CAT technically does not have the power to do so if the pet is dangerous.
The Dangerous “American Pocket Bully” Dogs
In Singh, two tenants living in a condominium unit at 250 Manitoba Street in Toronto had violated multiple prior Court orders which required them to permanently remove their two American Pocket Bully dogs from the premises and not to possess any further dogs. The City of Toronto deemed the two dogs to be “dangerous”, and required them to be muzzled in public areas.
Despite the City of Toronto’s order and the orders of the Court, the tenants continued to let their American Pocket Bullies roam the condominium’s hallways unmuzzled, lunge at a child, and enter into an elevator with nobody holding the leash.
Justice Myers of the Superior Court ruled that:
“The risk of injury under s. 117 (1) of the statute is enough. I would also find however that the tenants have shown themselves by word and deed to be unfit for communal living and communal use of property.”
Accordingly, on March 14th 2022, Justice Myers terminated the tenancy of the two tenants in the condominium Unit, and ordered that the two tenants must vacate the Unit within 2 weeks. Justice Myers also noted that the Court Sheriff, the Toronto Police Service, Toronto Animal Services, and even private animal control professionals and private bailiffs could be called upon to assist with the enforcement of the Court Order against the tenants.
The Limits of CAT Jurisdiction: Legally Speaking
Justice Myers’ decision in Singh highlights how the CAT’s exclusive PVPS jurisdiction under Section 1.42(1) of the Act does not apply to condominium disputes where there is a likely threat of injury to people under Section 117(1) of the Act, due to the Section 117 carve-out. Although our previous article on October 1st 2020 (here) mentioned, in jest, a hypothetical “Coco the Chihuahua” that could start biting people in the hallway, it is unfortunate that this real-life situation at this particular condominium corporation with these two American Pocket Bully dogs has escalated to such a severe degree.
The Superior Court’s recent decision in Singh also highlights a procedural technicality with the new CAT jurisdiction and the amendments to the Act that were brought about by the Protecting Condominium Owners Act, 2015, S.O. 2015, c. 28 (the “PCOA”).
As a statutory Tribunal, the CAT is constrained by the limits put in place by the Act and its regulations, like the CAT Regulation. The Ontario Superior Court of Justice however, is a court of “inherent” jurisdiction that derives its powers and authority from the constitutional fabric of Canada. As such, under Section 134 of the Act, the Superior Court is given a very wide latitude to issue any order that it deems fit for the circumstances. Here, the Superior Court deemed that it could, and should, terminate the tenancy of the two tenants in the condominium Unit – despite the fact that, as Justice Myers himself put it, “landlord and tenant relations in Ontario are mostly governed by the Residential Tenancies Act, 2006, SO 2006, c 17, and proceedings before the Landlord and Tenant Board”.
Currently, the Superior Court can terminate the tenancy of a condominium tenant (effectively evicting them from the Unit) if the tenant has:
- violated a prior compliance order issued by the Court under Section 134; or
- the tenant received a formal notice to pay their rent to the condominium corporation under Section 87 of the Act and has not done so.
Like the CAT, the Landlord and Tenant Board (the “LTB”) is a statutory Tribunal that is bound by the confines of the statutory authority given to it by the Ontario government – whereas the Superior Court has inherent jurisdiction and can “jump over” the LTB eviction process using Section 134 of the Act. If the condominium corporation has successfully obtained a Section 134 compliance order against the tenant (and the unit owner presumably) before, and the tenant violates that Court Order even once, then the condominium could technically bring another compliance Application to the Superior Court and ask the Court to terminate the tenant’s tenancy in the Unit. That is precisely what Justice Myers did in Singh at para. 62:
“Under s. 134 (4) of the Condominium Act, 1998, I find that the tenants are in contravention of the orders made under s. 134 (3) on January 28 and February 11, 2022. It is just and equitable that their lease with Ms. Singh be terminated and that they be ordered to vacate the premises.”
However, once the PCOA’s new Section 135.1 of the Act is proclaimed into force (as of the date of this writing, this new Section is not in force yet), the Superior Court can only order an individual to permanently vacate a Unit, if:
- they violated Section 117(1) of the Act and they pose a risk to the health and safety of an individual or the property of the condominium; or
- the Court is satisfied that they are unsuited for communal living or communal use of property and no other order aside from requiring them to vacate the Unit will be adequate to enforce compliance.
As Justice Myers noted in Singh, these new PCOA amendments “represent important safeguards to ensure that residential tenancies and other occupation of condominium units are not interfered with except for the most serious of grounds.”
However, even under the currently-in-force provisions of the Act and the CAT Regulation, the CAT as a statutory Tribunal has no power whatsoever to order the eviction of a tenant from a condominium Unit, no matter how many times the tenant has violated the condominium’s governing documents. Even if a tenant’s pet dog is barking every single night, and the condominium corporation has successfully obtained multiple CAT Orders against the unreasonable noise nuisances, the CAT is unable to order that the tenant must permanently vacate the Unit due to their continued non-compliance. Instead, the condominium corporation must go to the Superior Court anyway, to ask the Superior Court to enforce the CAT’s prior order(s) and require that the tenant permanently vacate the Unit.
If the tenant’s pet dog was not only barking every night but also lunging at children in the hallway, then like in Singh, the condo corporation could bring an urgent Application under Section 134 of the Act against the unit owner and the tenant for the permanent removal of the dog and the tenant – without having to go to the CAT first, due to the Section 117 carve-out.
As many in the industry have seen over the several decades that condominium corporations have existed in Ontario, sometimes the only way to achieve long-term compliance on the ground is to actually force the incalcitrant resident to permanently move out of the community altogether.
The Limits of CAT Jurisdiction: Practically Speaking
As this COVID-19 pandemic has shown, there are some individuals who are going to flout whatever orders are issued against them by any level of governmental or quasi-governmental authority, no matter what the circumstances are.
However, as the Auditor General’s 2020 report on condominiums in Ontario has indicated, there appear to be some parties who will simply not participate in the CAT at all, since, “The potential fines are small and much smaller than legal costs encountered by the condo corp in engaging lawyers to represent them in the process.” While this does not necessarily mean that a party who does not participate in the CAT’s adjudicative process will also ignore the CAT’s Order at the end of such adjudication, it does hint that perhaps some parties might take a CAT Order less seriously than an “official” Order of the Ontario Superior Court of Justice.
Some parties might decide not to participate in, or comply with, the Superior Court of Justice either. But at least the Superior Court has inherent jurisdiction to order monetary fines or even imprisonment for contempt of court, and the Superior Court has its own Sheriffs and can order the local police to assist in enforcement. It would be a scary day if the CAT, as a wholly-online administrative Tribunal, had that same power.
In an urgent situation like in Singh, with a pair of dangerous American Pocket Bullies roaming freely on the condominium’s common elements, the weight and authority of the Ontario Superior Court of Justice – and the Court’s ability to task the Sheriff and Toronto Police Service to assist – was much needed. If the condominium corporation was instead required to go through the CAT’s months-long process with 3 separate stages – and at least 2 CAT Notices of Case being sent to the tenants, typically around a week apart each, prior to the Stage 1 Negotiation even commencing (if the tenants decide to join the online CAT Case at all) – to enforce against the two dangerous dogs, then further personal injury might have resulted on the premises.
Here, a child’s life might have been saved at 250 Manitoba Street because the CAT’s PVPS jurisdiction did not extend to these two dogs, due to the Section 117 carve-out.
 The Court acknowledged that witnesses in the case had referred to the 2 dogs as “pit bulls”, but the Court decided to “refer to them by their breed as there is uncertainty and potentially prejudicial connotation associated with the inexact term “pit bull”.”
 The PCOA’s new Section 135.2 of the Act (once proclaimed into force) makes it clear that the Superior Court’s order for the permanent removal of a person is not terminating the tenant’s tenancy, since Section 37(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”) stipulates that a tenancy can only be terminated under the RTA. However, from the practical perspective of the condominium corporation, a Superior Court order that requires the permanent removal of the resident from the premises achieves essentially the same effect on the ground.
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 article is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.