An owner complains about noise from her neighbour’s balcony late at night and asks the condominium to prohibit the neighbour from talking on the balcony after 11 p.m. The condominium does not have a rule prohibiting residents from talking on their balconies at night, but has a rule prohibiting noise that disturbs the other residents.
With more of us staying at home these days this is bound to be a common problem, especially once the warmer weather comes. What should the condominium do when faced with these sorts of complaints? Should the condominium send demand letters to the neighbour? Start a court application? Should the condominium pass a rule prohibiting these late night discussions on the balconies? Fortunately, a recently reported case gives us some guidance.
You have probably all read about the oppression remedy in section 135 of the Act. As a recap, section 135 allows an owner, corporation, declarant or mortgagee of a unit to make an application to the courts where the conduct of another owner, corporation, declarant or mortgagee of a unit “is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant.” The purpose of the oppression remedy is to protect legitimate expectations from conduct that is unlawful or, even if lawful, is considered unfair or oppressive. The legitimate expectations must be balanced against competing interests, such as the board’s duty to make decisions on repair or maintenance. The section has been described as “awesome” because it gives the judge the power to make any order he or she deems proper.
Although oppression has been claimed many times since section 135’s inclusion in the Act, very few of the applicants have been successful. Successful cases involve a declarant that refuses to relinquish control of the condominium or where a decision is made that is unfair to a minority group of owners. However, this week a decision was released where an owner was successful against the condominium not because of a decision made or an action taken, but because of the condominium’s inadequate response to the owner’s complaints.
The Court has had another opportunity to rule in the never-ending saga of Dyke v. Metropolitan Toronto Condominium Corporation No. 972. The owner brought a motion for contempt and other relief. The main question on the contempt motion was whether the condominium and its board of directors or agents disregarded, intentionally violated, or otherwise flouted the previous court order that required the condominium to take reasonable steps to ensure that the owner would have quiet enjoyment of her unit.