In the recent CAT decision, York Condominium Corporation No. 444 v. Ryan (“Ryan”), CAT found that in certain circumstances, “harassment” can include conduct that is a nuisance, annoyance or disruption, despite not being a prescribed or prohibited activity under subsection 117(2) of the Condominium Act, 1998 (the “Act”).
In Ryan, the corporation commenced an application against two unit owners who lived across from one another – Ryan and Powell. Ryan had been complaining of alleged smoke transferring into her unit from the Powell unit. Ryan, in return, was found to have consistently engaged in harassing behaviour towards Powell, her family, as well as the corporation’s management and superintendent.
The corporation settled with Powell by way of consent order in Stage 2 – mediation and continued the application against Ryan in Stage 3.
At Stage 3, there was a preliminary issue regarding jurisdiction. CAT requested that the parties make submissions on whether CAT had jurisdiction to hear disputes relating to harassment, or whether these disputes fall under section 117(1) of the Act.
The CAT member made an interesting distinction between subsections 117(1) and (2) of the Act:
[13] The amendments of section 117 and the addition of Regulation 179/17, which established the Tribunal’s jurisdiction to deal with certain nuisances, annoyances or disruptions, have created a potential overlap between the conduct addressed in sections 117 (1) and 117 (2) of the Act. Considering harassment in particular, it can be both a tactic or form of conduct and it can also be an end. For example, a person may attempt to harass by engaging in conduct that is a nuisance or annoyance or disruption. In that case, if the conduct falls within subsection 117 (2) or subsection 1 (1) of Regulation 179/17, then the Tribunal would have jurisdiction over the dispute. Looking at the wording of the two subsections, the dividing line is the likelihood of physical injury, illness or damage to property. Subsection 117 (1) is designed to deal with conditions and conduct that are likely to have more serious consequences than a nuisance, annoyance or disruption.
CAT held that harassing someone may invoke conduct that is a nuisance, annoyance or disruption. Although harassment is not a prescribed nuisance, CAT may have jurisdiction over these disputes depending on what the corporation’s governing documents say; the regulations extend CAT’s jurisdiction to include disputes relating to provisions in a corporation’s governing documents. In this case, the corporation had very clear and specific rules prohibiting the behaviour that Ryan was engaging in. Accordingly, CAT held the dispute was within its jurisdiction.
Ryan’s conduct included yelling obscenities at Powell and her children, excessive and demeaning emails to the corporation’s management and superintendent, placing a sheet over her propped open front door, posting inappropriate notices on the common elements and defacing a notice posted by Powell’s children on the corporation’s notice board.
The corporation argued that the Tribunal had to look at all of Ryan’s behaviour as interrelated to the totality of Ryan’s harassment. CAT agreed and ultimately ordered Ryan to comply with subsection 117 (2) of the Act and with the corporation’s rules.
CAT also awarded the corporation a portion of its costs, both those incurred prior to the application as well as the costs incurred during the application. CAT also commended the Corporation’s reasonable efforts to try to elicit Ryan’s compliance prior to the commencement of the application.
The decision serves as an important reminder for corporations to review their governing documents to ensure they have adequate rules that address the type of behaviour depicted in this case and to take reasonable steps, rather than overly aggressive measures, when faced with complex and problematic situations with owners or residents.
