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Condominiums - Prohibited Condition and Activities [s.117]

. Hackman v. TSCC No. 1978

In Hackman v. TSCC No. 1978 (Div Court, 2023) the Divisional Court considered an appeal from a decision of the Condominium Appeal Tribunal (CAT). In these quotes the court considers an argument of 'inadequate reasons', here an allegation that the CAT failed to explain a jurisdictional issue [relating to CA s.117]:
[6] Mr. Hackman has brought this appeal of the CAT decision under s. 1.46 of the Act, which permits appeals on questions of law. Otherwise, an order of the Tribunal is final and binding. ...

....

1. Adequacy of reasons given

[8] The substance of Mr. Hackman’s appeal on the adequacy of reasons given by Mr. Cook concerns his defence to the claim that he breached the settlement agreement to live by the declaration, by-laws and rules of the corporation. What Mr. Hackman has done is in effect mounted a classic strategy of using an offence to defend that claim. In that offence, he alleged that TSCC No. 1978 and its directors caused him psychological harm by sending him notices, contrary to the rules against the corporation behaving in a rude or aggressive manner. Mr. Hackman submits that the CAT did not deal with this part of his defence or give adequate reasons for not doing so, giving rise to a question of law.

[9] The Tribunal did not err in concluding that it did not have jurisdiction to deal with Mr. Hackman’s complaints of harassment resulting in psychological injury. Section 1 of O. Reg. 179/17 defines the scope of disputes over which the CAT has jurisdiction. Pursuant to s. 1(1)(c.1) of the Regulation, the CAT has jurisdiction over a dispute with respect to s. 117(2) of the Act. However, under s. 1.36(4) of the Act, the CAT does not have jurisdiction over a dispute with respect to s. 117(1).

[10] On appeal, the Appellant submits that the CAT failed to give adequate reasons for declining to exercise its jurisdiction under s. 117(2) of the Act. However, it is clear the appellant relied on s. 117(1) when arguing before the CAT as opposed to s. 117(2). In the Appellant’s written submissions to the CAT, he stated that s. 117 prohibits any person from causing injury to persons or property of the corporation. Only subsection (1) refers to injury; subsection (2) does not. As a result, the Appellant did not specifically put forward s. 117(2) as a basis for the CAT to exercise jurisdiction over his complaints about harassment.

[11] The modern basis to consider the absence or insufficiency of reasons for a ruling or verdict as an error of law is found in R. v. Sheppard, 2002 SCC 26 and has been followed consistently by the appellate courts ever since. In R. v. R.E.M., 2008 SCC 51, the Supreme Court explained that reasons given by a court in Canada must enable the courts to perform the functions that reasons are expected to serve. This includes the sufficiency of reasons to explain the basis for the decision made, and to allow for meaningful appellate review. At that level, deficiencies of reasons can amount to an error of law: R. v. J.C., 2023 ONCA 101, at paras. 4 and 5. An appeal arises from the judgment itself, not the reasons given for the judgment rendered.

[12] There was no need for Mr. Cook to go further in his reasons than to identify that the CAT has no jurisdiction to hear complaints under s. 117(1) of the Act. The sufficiency of the reasons is measured by the succinctness of the correctness of his legal conclusion. That succinct conclusion is enough to provide the basis for the decision made, and to permit appellate review, as it has here.
. Peel Standard Condominium Corp. No. 779 v Rahman

In Peel Standard Condominium Corp. No. 779 v Rahman (Div Court, 2023) the Divisional Court considered a condo corporation appeal [under Condominium Act, 1998, s.1.46] from a decision of the Condominium Appeal Tribunal (CAT), here where the tribunal ordered that the respondent was "entitled to park in designated accessible parking spaces located outside the appellant’s building, and awarding ancillary relief (2021 ONCAT 13)". In these quotes the court considers the CAT's appellate jurisdiction, focussing on the s.117 ['Prohibited conditions and activities'] provision:
[5] The jurisdiction issue was decided first, by Vice-Chair Clifton, on January 12, 2021 (2021 ONCAT 1). The appellant argued that the parking issue was connected to issues of harassment by Mr Rahman of staff and others associated with the appellant, and so had to be decided within this broader context. These broader issues, the appellant argued, fell within the jurisdictional “carve-out” in s. 117 of the Condominium Act, 1998, SO 1998, c. 19. The Vice-Chair did not accept this argument and held that the parking dispute was within the jurisdiction of the Tribunal.

....

[15] This court has jurisdiction over this appeal pursuant to s. 1.46(2) of the Condominium Act, which states that “[a] party to a proceeding before the Tribunal may appeal the order to the Divisional Court on a question of law in accordance with the rules of court.” On questions of law, the standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, paras. 8-9. Issues of procedural fairness are reviewed on a correctness or “fairness” standard: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, paras. 26-30.

....

Issue 1: Jurisdiction

[16] The Tribunal was established in 2017 pursuant to s.1.32(1) of the Condominium Act. Subsections 1.36(1) and (2) of the Act provide that the Tribunal decide “prescribed disputes” between (among others) condominium owners and condominium corporations. Such disputes are “prescribed” by Regulation (O. Reg. 179/17). Since October 1, 2020, these prescribed disputes include disputes regarding provisions of the declaration, by-laws or rules of a condominium corporation governing pets, vehicles, parking or storage, and indemnification or compensation regarding such disputes.

[17] The Act directs the Tribunal to adopt “the most expeditious method of determining the questions arising in a proceeding before it” while affording procedural fairness to the “persons directly affected by the proceeding” (Act, s. 1.39(1); see also Act, ss. 1.39(2) and 1.40).

[18] Disputes that are otherwise in the jurisdiction of the Tribunal are excluded from its jurisdiction if the dispute is also connected with matters covered by s.117(1) of the Act [see Act, s.1.36(4) and Regulation, s. 1(3)]:
No person shall, through an act or omission, cause a condition to exist or an activity to take place in a unit, the common elements or the assets, if any, of the corporation if the condition or the activity, as the case may be, is likely to damage the property or the assets or to cause an injury or an illness to an individual.
[19] The appellant argues that s.117(1) of the Act is engaged for three reasons:
(a) Mr Rahman’s claims respecting parking are part of a pattern of conduct of harassment of the appellant’s personnel. This harassment is the subject-matter of proceedings in the Superior Court, and the parking issues are inextricably connected with the Superior Court claims.

(b) Mr Rahman claims that the appellant’s conduct, including its position and conduct in relation to the parking issues, constitutes harassment of him, and for the same reasons as stated in (a), should be addressed within the Superior Court proceedings.

(c) Mr Rahman has characterized his use of outdoor accessible parking as an issue involving his personal safety and well-being.
[20] For the purpose of this analysis, I accept (without finding) that allegations of harassment may fall within the s.117(1) carveout – that is – that harassing conduct may be of such a kind, nature and duration, and arise in such a context, that the harassment “is likely… to cause injury or an illness to an individual….” Whether the circumstances of these parties are such as to trigger the s.117(1) carveout is not before this court and, again, for the purposes of this analysis I accept (without finding) that the allegations of harassment – both by the appellant and by Mr Rahman – are sufficient to trigger the carveout.[1] That, by itself, does not, however, deprive the Tribunal of jurisdiction over the underlying parking dispute.

[21] The parking dispute in this case involves assessment of largely undisputed facts – concerning the parking facilities that exist at the condominium building, the terms of the appellant’s declaration and rules regarding parking, and Mr Rahman’s entitlement to use designated accessible parking. None of these issues has anything to do with whether there has been harassment by the appellant, by Mr Rahman, or on both sides. It is a severable issue, within the larger ongoing disputes, and it is within the exclusive jurisdiction of the Tribunal.

[22] One of the reasons there has been so much conflict – and escalating claims – has been the delay in conflict resolution that have permitted the conflict to fester and grow. It would have benefitted both sides – and the administration of justice – to obtain a swift decision from the Tribunal on the parking issue, to lay to rest the question of where Mr Rahman may park.

[23] There is no basis for concluding that the parking issue, itself, is likely to cause damage to property or injury or illness to a person. Simply because the appellant turned out to be wrong on the parking issue does not mean it was engaging in harassing conduct: parties are entitled to be wrong. Simply because Mr Rahman prevailed on the parking issue does not mean he did not harass the appellant’s personnel and agents: being in the right is not a license to act badly. The Tribunal’s decision on the parking issue – upheld by this court – will be part of the context in which harassment issues may be litigated. That does not elevate the parking issues into matters “in connection with” s. 117(1). Rather, the parking issue is part of the context for the harassment issues. To hold otherwise would be to distort the carveout beyond all reasonable bounds and leave it open to any party to avoid the jurisdiction of the Tribunal by making an allegation of harassment.

[24] The Tribunal’s analysis of the jurisdiction issue discloses no error of law. I would not give effect to this ground of appeal.



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Last modified: 01-11-23
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