Bharat Kapoor Associate Lawyer Horlick Levitt Di Lella LPP
Julia Lurye Associate Lawyer Horlick Levitt Di Lella LPP
Case Law Update
Decisions From the Courts
York Condominium Corporation No. 229 v. Rockson, 2022 ONCAT 46 In York Condominium Corporation No. 229 v. Rockson, York Condominium Corporation No. 229 (“YCC 229”) had rules that restricted making or permitting any noise or nuisance which, in the opinion of the board of directors or the manager, disturbs other persons (the “Noise Rules”). Between August 17, 2019 and March 20, 2022, YCC 229 received at least 94 complaints (as documented by security incident reports) that loud music was blasting from the unit of the respondent owner, Chris Rockson. The condominium manager served Mr. Rockson with four compliance letters over the course of 2019 and 2020, setting out the Noise Rules and requesting the owner’s voluntary compliance. The letters also advised the owner that if he failed to comply with the Noise Rules, then enforcement would be escalated to YCC 229’s legal counsel and that the owner would be held responsible for any legal costs incurred by YCC 229.
Despite repeated warning letters from the condominium manager, YCC 229 continued to receive complaints about loud music blasting from Mr. Rockson’s unit. YCC 229 engaged its lawyers to communicate with Mr. Rockson and require his compliance with the Noise Rules. However, Mr. Rockson continued to disregard the Noise Rules, as YCC 229 received at least 40 noise complaints after letters were sent by YCC 229’s lawyers to the owner. YCC 229 was forced to commence a CAT proceeding to enforce compliance with its Noise Rules and requested that CAT order Mr. Rockson to indemnify YCC 229 in the amount of $9,848.51 for the legal costs and expenses YCC 229 incurred to obtain compliance. YCC 229 also requested that CAT order soundproofing of Mr. Rockson’s unit and the neighbouring units if he continued to violate the Noise Rules. Mr. Rockson chose not to participate in the online hearing, despite CAT contacting him twice at the onset of the proceeding. As such, CAT’s decision in this case is based solely on the undisputed evidence and submissions of YCC 229. CAT found Mr. Rockson’s conduct contrary to the Noise Rules. However, despite being sympathetic to YCC 229, CAT refused to make an order to soundproof Mr. Rockson’s unit and the
neighbouring units if Mr. Rockson continued to violate YCC 229’s Noise Rules. CAT was concerned that YCC 229 provided no criteria to determine noncompliance and which neighbouring units would require soundproofing (if any), among other things. Given YCC 229’s success at the proceeding, CAT also ordered that Mr. Rockson pay $200 to YCC 229 for its filing fees. With respect to the amount of $9,648.51 requested by YCC 229 for legal fees, in making its decision on whether to award such costs, CAT considered whether the parties attempted to resolve the issues before the application was commenced, and the provisions of the governing documents and whether the parties understood the potential consequences for contravening them. Despite receiving numerous compliance letters from YCC 229’s condominium manager and lawyers, Mr. Rockson willfully refused to comply with YCC 229’s Noise Rules. In addition, he failed to participate in the hearing. CAT noted that any legal fees not awarded as costs would ultimately be paid by the owners of YCC 229, and in this case, it would not be reasonable nor fair if the owners whose quiet enjoyment was disrupted were to be liable for YCC 229’s costs of obtaining Mr. Rockson’s compliance. As such, CAT ordered that Mr. Rockson pay costs of $9,648.51 to YCC 229. CONDOVOICE SUMMER 2022
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ILLUSTRATION BY JASON SCHNEIDER
Recent decisions released by the Condominium Authority Tribunal (“CAT”) suggest that CAT’s willingness to award adverse cost awards to owners depends on the owner’s conduct in response to the compliance letters issued by the condominium corporation, and the owner’s efforts to resolve complaints and participate in the CAT process.
