Tuesday, August 16, 2011

LTB Member Makes Thoughtful Decision on Condominium Eviction Case, but Legislative Gaps Remain

I rarely 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 received in the mail 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 well-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.  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 to terminate a tenancy was served by the landlord's paralegal, and an application filed for eviction when the problem was not remedied.

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 we were attempting to evict 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.  True, there were other grounds 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 with respect to the landlord's liability vis a vis the Corporation.

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 far from exhaustive.

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.


There are other areas in which the government seems to have no interest in meshing the Residential Tenancies Act and the Condominium Act or recognizing that condos are the new rentals.  For instance, the Board refuses (and I've tried twice) to consider the Condominium Corporation to be a landlord for limited purposes under the Residential Tenancies Act. The legislation is very permissive and not exhaustive with respect to the definition of landlord.  If a tenant files a T6 application about the failure to maintain an item that is part of the common elements of a condominium, who do they sue?  What if a tenant's car is hit by a garage door and damaged as they leave the parking garage.  Who do they sue?

As these problems deal with common elements of the Corporation, they cannot be fixed or maintained by the landlord/owner.  In fact if the landlord tried to fix the item, they would be in breach of the Condominium Act and liable for consequences under that statute. I've always felt that the owner's obligation does not extend in any way to common elements, even vicariously, and that the management company should be named as a landlord under the Residential Tenancies Act for the purpose of that alleged breach.  

If Landlord and Tenant Board  Members are unwilling to make the finding that the Corporation is a landlord, the tenant would have to go to Small Claims Court to bring a plaintiff’s claim against the Corporation.  What a waste of resources when the tools existed under the Residential Tenancies Act to fix the problem.  Most judges today at the Divisional Court (on appeal) and Small Claims Court at trial are finally getting to the point where they understand that the Residential Tenancies Act is a unified code and sometimes refuse to hear these claims. Yet the government, in its current round of discussions surrounding the Condominium Act, is ignoring the issue.


Chris Jaglowitz said...

Thanks for reporting this case, Harry.

Since it will be relevant to many condo corporations and unit owners who find themselves in this type of situation, please post a link to the reported decision once it's posted on CanLII.

Keep up the good work.

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