A new motion decision from the Condo Authority Tribunal (the “CAT”) sheds some light on who should be parties to noise disputes.
In Hovagimian v. Toronto Standard Condominium Corporation No. 1754, 2022 ONCAT 57, the applicant unit-owner brought an application alleging that he experiences excessive noise from one particular unit approximately four times a year for a number of years.
The applicant brought the application exclusively against the condo corporation seeking a monetary penalty against it. The applicant did not include the allegedly “offending” unit as either a respondent or intervenor in its application.
The condo corporation brought a motion from the outset of Stage 3 – Adjudication, to add the other unit owner as a party to the proceeding. The applicant opposed the motion on the basis that the alleged ongoing noise should have been addressed by the condo and adding the other owner now would only muddy the primary matter.
The condo corporation argued that the other owner was an interested party and would be directly affected by the hearing and any order or remedy made against them for some cessation or diminution of the alleged noise.
The CAT agreed with the condo corporation. Subsection 1.38 (3) of the Condominium Act, 1998 (the “Act”) states that the “Tribunal may add or remove a person as a party if the Tribunal considers it appropriate.” Subsection 1.39 (1) of the Act requires the Tribunal to ensure that all “persons directly affected by the proceeding” have an opportunity to know the issues and to be heard.
When commencing a CAT application, owners or condo corporations should keep in mind Rule 17 of the CAT’s Rules of Practice which outlines who should be included as an “intervenor” when filing an application. In summary:
- When an application is filed by an applicant against a tenant, the applicant will be required to identify and deliver the Notice of Case to the owner of the unit as an intervenor.
- When an application is filed by an applicant against the owner of a unit that is occupied by someone else, the applicant will be required to identify and deliver the Notice of Case to the occupant of the unit as an intervenor if the case relates to the acts or omissions of that occupant.
- When an application is filed by an owner against one or more owners or occupants, the applicant must identify and deliver a Notice of Case to the condo corporation as an intervenor.
- When an application is filed by an applicant against a condo corporation in respect of a shared facilities agreement, the applicant(s) will be required to identify and deliver the Notice of Case to the other condo corporation(s) that are party to the shared facilities agreement as an intervenor.
Whether you are an owner or condo commencing an application before CAT, it is imperative that you identify all the respondents and intervenors before filing your application. Otherwise, you may find yourself starting from square one if new respondents or intervenors are identified along the way.
