Bradley Chaplick Horlick Levitt Di Lella LLP
Cover Story
The Hidden Impact of New Nuisance Laws Disputes Related to Noise, Odour, Smoke, Vapour, Light, and Vibration (Collectively, any “Nuisance”) Can Now Proceed to CAT
4. best practices for compliance and concluding remarks.
Secondly, subsection 117(2) of the Condominium Act, 1998 (the “Act”) comes into force, which prohibits any conduct or activity in any unit or on the common elements that results in an unreasonably disturbing nuisance.
PART ONE The Hidden Impact on Condominium Corporations An important, and overlooked, aspect of the new subsection 117(2) of the Act is that it also applies to condominium corporations’ activities, not just the nuisancecreated conduct of residents and their invitees.
This article discusses: 1. the hidden impact of the new subsection 117(2) of the Act on condominium corporations; 2. whether CAT has jurisdiction over disputes involving tenants in residential condominium buildings; 3. recent condominium “nuisance” case law;
Previously, a unit owner complaining about a nuisance from a common element source would have to prove that the nuisance was the result of a failure to maintain and repair the common elements or was “oppressive”. Owners were rarely successful in these claims because all the condominium corporation had to do to succeed in court
was demonstrate that it was following a normal maintenance and repair program, and that it had acted reasonably, even if the problem had not been solved, or took many years to fix. Condominium corporations tended to succeed even in cases where appropriate repairs or replacement of common elements that could have solved the problem were delayed, sometimes for years, because of limited available funds, or other maintenance and repair priorities. Under the new legislation, owners will no longer have to prove that a nuisance is oppressive or the result of poor maintenance. Instead, it will likely be sufficient to prove that a nuisance exists and that a condominium corporation has not adequately discharged its positive obligation to rectify it. CONDOVOICE WINTER 2021
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ILLUSTRATION BY JAMIE BENNET
On January 1, 2022, two related amendments to the Condominium Act, 1998 take effect. Firstly, the Condominium Authority Tribunal’s (“CAT”) jurisdiction is expanded so that disputes between condominium corporations and unit owners relating to noise, odour, smoke, vapour, light, and vibration (collectively, any “nuisance”) now proceed to CAT, rather than to court or to private mediation and arbitration.
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