LTB Member Makes Thoughtful Decision on Condominium Eviction Case

I never mention LTB adjudicators by name here, partly because I am often critical on these pages, and I have concerns about my obligations to the Law Society.  I sometimes come close to the line, but I try not to go over it.

But I wanted to mention a decision I got today, and I want to mention the Member as I feel she is one of the brightest at the LTB and she takes the time to consider matters carefully and then writes good, solid reasoned orders.

The case was an eviction application, LTB file No. TSL-14775-11.  The Member was Ruth Carey at the Toronto South District Office.  You can look up the order online eventually once it is posted at Canlii.  The tenant who was being evicted lived in a condo.  The person below him who he interfered with via pet noise was not a tenant, but a unit owner.  An N5 notice was served, and an application filed.

The hearing took place last week.  The Residential Tenancies Act does not play well with condos.  I've long been a critic of the shortcomings of the statute in that respect, and recall attending a hearing before the standing committee on general government when the Residential Tenancies Act was being debated.  A deputant was setting out the issues wherein the proposed legislation did not deal with the new reality of condos being the new rentals. 

I had some concerns about this eviction application, not because of the facts or the legal issues, but because section 64 of the Act refers to enjoyment of other tenants, not unit owners.  The person in unit below the tenant who was being evicted was a unit owner, and arguably any interference with his enjoyment would not give rise to a cause of action under the Residential Tenancies Act.  Now there were other opportunities for eviction, as we were also claiming that the tenant in #712 was substantially interfering with the reasonable enjoyment of the landlord and with the landlord's lawful right, interest and privilege.

The Member reserved on her decision, and then wrote the following in her order that I received today:

One of the issues that arises in this application is that s.64 of the Act does not contemplate a situation such as this one where the rental unit is located inside a condominium complex.  Here, the complaining neighbours are owners of their suites and not tenants, but the Act only refers to disturbances to other tenants and to the landlord.  It reads:

Termination for cause, reasonable enjoyment

64.  (1)  A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.

Although it is very clear from the definition of "tenant" in s.2 of the Act that condominium unit owners cannot be considered "tenants", it creates an absurdity to exclude them from consideration under s.64.  I say this because it makes no sense whatsoever that a tenant can be evicted in an apartment tower if his neighbour is also a tenant, but cannot be evicted for the same disturbing behaviour if his neighbour owns his or her own apartment.  As a result, I believe that the Act is unintentionally under-inclusive and "owner occupants of condominium units in the same residential complex" should be read into s.64 until the Legislature catches up with the changes that have been wrought in the lived reality created by the wide-spread development of condominium apartment buildings."

Bravo for the Member for recognizing that the law is always growing and changing, and that the definitions in s.2 of the Act are inclusive, but not exhaustive.  I recall another order written by the same Member where she found that fees charged to a landlord for a pre-authorized debit that had insufficient funds could be considered NSF fees even though the Act deals only with NSF fees in respect of returned cheques.

The decision can and should be used in front of the Board in similar fact cases, but it might even prove useful where a tenant living in a condo is suing a landlord for maintenance where the alleged breach is of a common area or facility where the owner/landlord has no right to make repairs or changes.  For instance, an entrance door, a swimming pool, the lobby area, a games room, the parking garage, a balcony, or even exhaust unit ducting are all elements in a condo that are part of the common area, not owned or controlled by the landlord.  If a tenant makes a complaint, and the landlord brings it to the attention of the management company, I've always felt that the owner's obligation ends there, and that the management company should be named as a landlord under the Residential Tenancies Act for the purpose of that alleged breach.  

Members at the LTB have a lot of discretion to do the right thing, make reasonable findings, and then give their reasons clearly.  I've always found that Divisional Court is deferential to Members on their findings and interpretation of statute so long as the Member writes sound and clear reasons. Too many Members fear being out on a limb.

I recall when I was a Member at the LTB between 2001 and 2004.  My mentor was a Vice Chair named Jeff Rogers, who I still remember fondly.  He once said to me that you can't go wrong by doing the right thing, so long as you explain your position clearly.  He told me not to be afraid to go out on a limb, but to be ready to support my position by reference to the law.  Other Members would do well to follow Member Carey's lead.