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Forcing owners to sell
“No one shall be subjected to arbitrary arrest, detention or exile.

—Article 9 of the Universal Declaration of Human Rights

It is becoming more common for the condo corporation lawyers to ask the courts for an order forcing misbehaving owners to move out and sell their units.

At times, these are serious applications but in other cases it appears that the lawyers are either trying to either shock the owner into behaving or to test what level of misbehavior will warrant exile from the community.

Throwing cat feces over the balcony
Assaulting & threatening other residents
Owner ordered to sell in very short order
Foul odours, due to uncleanliness and cockroaches
The restaurant gets to stay
Loud tenants get to stay, marijuana smoker moved out


Peel Condominium Corp. No. 98 v. Pereira
Superior Court of Justice
Court File No: CV-13-1986-00
Date: 28 November 2013
Justice M. J. Donohue

The dispute
The applicant, condo corporation submitted that Mr. Pereira has breached Section 117 of the Condo Act and sought the following orders:
a.)
that Mr. Pereira shall sell and vacate his unit within six months;
b.)
that Mr. Pereira be prohibited from conducting himself in a manner which is, or threatens to be, oppressive or unfairly prejudicial to the Corporation, the unit owners and residents; and
c.)
that Mr. Pereira remove any animal or pet from his unit with ten days.

The complaints
There were a few very minor issues that the condo's lawyer brought up that happened years earlier but they seemed to have little substance and no relevance. The current issues were:

Thrown Cat Feces and Litter from Balcony
On 15 November 2010 a landscaper, Tim Henderson, was struck on the head with cat feces. From that first incident until 16 December 2012 several owners and corporation employees observed cat feces and water being dropped from Mr. Pereira’s unit.

There were three letters from corporation lawyer telling him to stop.

Non-Payment of $169.50
Mr. Pereira was asked to pay $169.50 in charges from cleaning up the litter from the superintendent’s patio. There were two written letters sent to Mr. Pereira demanding payment which were ignored.

Mesh Screen on Balcony
On 23 August 2011 Mr. Pereira was sent a letter by the condo’s solicitor to remove a wire mesh screen or enclosure on his balcony forthwith. The screen was removed two years later, two months after this court application was served.

Assault
On 11 October 2011 there was an incident on the elevator between Mr. Pereira and the former superintendent. Criminal charges of assault were laid against Mr. Pereira that was withdrawn after Mr. Pereira entered into a peace bond.

Theft of Lobby Bench
Mr. Pereira moved a bench from the lobby to the tenant’s workshop in the garage. This action was observed on video surveillance. He was charged with theft but the charge was stayed.

The Corporation’s materials repeatedly referred to this incident as proof of theft. (An obvious exaggeration.)

Chiller Room Abuse
There was an incident when Mr. Pereira went into the chiller room, started yelling at the superintendent and he then picked up a ladder and threw it down. He denied throwing it in the direction of the superintendent.

Verbal Assaults
In the first six months of 2013 there was a series of verbal abuse in the form of death threats and vulgar language.

Mr. Pereira denies he did this.

Breach
The court was satisfied that on a balance of probabilities Mr. Pereira was in breach of sections 119(1) and 117  of the Act by:
a.
ejecting cat litter feces and water from his balcony at various times since 2010;
b.
failing to comply with the request to remove the balcony screen for two years, and only after this application was commenced; and
c.
repeatedly abusing employees and residents of the building verbally and physically in a manner that is threatening or intimidating to them.

The issue then became what remedy is most suitable in the situation.

In this case, while the actions of Mr. Pereira are extremely serious and troubling, the judge found that a lesser order requiring compliance would suffice. This court ordered the following:
a.
Mr. Pereira shall pay the outstanding charge of $169.50 within 30 days.
b.
Mr. Pereira shall not throw any objects or permit any objects (including water, except rain water) to be emitted from his balcony.
c.
Mr. Pereira shall comply with all provisions of the Act, and the declaration, by-laws and rules of the corporation, including any restriction on the condition and use of his balcony and parking stall.
d.
Mr. Pereira shall refrain from verbally or physically assaulting or intimidating, threatening to assault or intimidation of any resident or person in or on the condo premises, including towards other residents, the superintendent, maintenance and repair workers, guests and anyone else lawfully entitled to be on the condominium premises.
e.
Mr. Pereira shall refrain from any disruptive behaviour which would breach the rights of the residents and occupants of the condominium premises to quiet enjoyment and use of their units and the condominium premises.
f.
Should Mr. Pereira breach the terms of this order, any further proceedings by the corporation or other unit holders shall be entitled to repeat and rely on the incidents and actions of Mr. Pereira described herein, as evidence of a course of continuing obstructive and damaging behaviour of Mr. Pereira, which unfairly disregards the interests of the corporation or other unit owners, in connection with any further relief sought against Mr. Pereira, including an order requiring Mr. Pereira to sell his condominium unit and move from the building.

So Mr. Pereira is an unpleasant neighbour and the condo’s employees and at least some of the residents would love to see him gone but he and his cat get to stay. However he is under a court order demanding that he behave himself and he will have to pay thousands of dollars in court costs.

This case shows that it will take a lot to get the courts to agree to kick an owner out his or her condominium unit.—editor

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YCC No. 137 v. Hayes
Superior Court of Justice—Ontario                                                  
Court File No:  CV-11-437248
Before: Justice Penny
Heard:  August 3, 2012

The Application
This is an application by YCC #137 under s. 134 of the Condominium Act for various orders relating to the alleged violent, harassing and inappropriate conduct of the respondent, a unit owner in the condominium.

Specifically, the condominium seeks:
(a)
a permanent injunction, restraining the respondent from;
(i) entering upon the common elements of the condominium except for the purpose of ingress to and egress from her unit;
(ii) having any oral or physical contact or communication with any resident or employee of the applicant;
(iii) communicating with, harassing or having any contact (whether in person, by telephone, by e-mail, or in writing) with any member of the board of directors, any management or security personnel, or any other employee of the applicant, or any other person doing business with the condominium including but not limited to, any of the individuals who have sworn affidavits in these proceedings;
(iv)
coming within 25 feet of any of the individuals who have sworn affidavits in these proceedings;
(v)
entering or coming within 25 feet of the condominium’s management office located at 85 Emmet Ave., Toronto, Ontario; and
(vi)
contacting, communicating with or harassing any member of the board of directors, any management or security personnel, any employee or contractor of the condominium, or any person doing business with the condominium;
(b)
an order requiring the respondent to vacate her unit at YCC No. 137 (Unit 1, Level 6) immediately and permanently, and to list that unit for sale immediately, such sale to close nor more than 90 days from the date of the order of this court, failing which the condominium shall be entitled to list unit for sale and thereafter to sell unit, to recover all of its costs in returning the unit state of fitness for occupation from the proceeds of sale, and to move without notice before the court, if necessary, for a writ of possession that will enable the condominium to have vacant possession of the unit in order to give effect to the sale;
(c)
a declaration that the respondent has breached sections 117 and 119(1) of the Condominium Act 1998, Articles III (1), IV(1)(b) and(c)and XII(2) of the declaration of YCC No. 137 and rules 4, 8, 10 and 15 of the Rules of YC No. 137;
(d)
an order that the respondent cease and desist from her uncivil, improper and illegal conduct that violates the Act and the declaration and rules of YC No. 137;
(e)
an order that the respondent be removed from the board of directors before the expiration of her term of office;
(f)
an order that the respondent’s appointment as secretary to the board of directors be revoked;
(g)
an order that the respondent return any of the condominium’s documents, minutes of meetings, and keys that are in her possession;
(h)
an order that the respondent comply with YCC No. 137’s declaration, bylaws and rules as required by section 119 (1) of the Act;
(i)
an order that, pursuant to section 134 of the Act, the respondent pay to the applicant its costs on a substantial indemnity basis and that such costs be deemed to be common expense contributions attributable to the respondent’s unit; and
(j)
an order that if the respondent fails to comply with any order issued by the court, the applicant may re-attend on two days notice for further orders to enforce compliance.
 
Background
The condominium relies principally on six incidents which occurred last fall and winter:
1.
19 Sep 2011 assault on Mario Santos. (She is 80 years old.)
2.
20 Sept 2011 assault on Ana Agostinho
3.
24 Sep 2011 threatening voicemail left for Ruth Abraham
4.
28 Sep 2011 assault on Sherry Dasilva
5.
Early Oct 2011 assault on Sherry Dasilva
6
12 Dec 2011 verbal abuse of Sherry Dasilva

There are miscellaneous other incidents as well.

The respondent, Edna Merle Hayes, filed an affidavit dated 16 December 2011 in these proceedings.  She is a member of the board of the condominium. The respondent did not deny any of the allegations listed above. Rather, her affidavit focuses on what I would describe as a legal issue, i.e., whether the board has taken appropriate steps to initiate these proceedings, remove her from the board and remove her from her unit

The Issues
There are essentially three issues:
1.
is the respondent in non-compliance with the Act or the declaration, bylaws or rules of the condominium?
2.
if yes, has the condominium properly initiated these proceedings?
3.
if yes, what is the appropriate remedy in the circumstances of this case?

Rulings
Justice Penny ruled that Edna Hayes was in non-compliance with the Act, the declaration, bylaws and rules of the condominium.

Justice Penny also rules that the board did authorize the court application.
I assume that the respondent was not informed of this board meeting due to the business being discussed.—editor

Justice Penny refused to remove Edna Hayes from the board. The Act allows for a director's removal by the majority of the owners.

However he did issue a restraining order which ordered the respondent to:
1. to be of good behavior and keep the peace while on any property associated with the condominium;
2.
to cease and desist from uncivil, improper or illegal conduct that violates the Act or declaration, bylaws or rules of the condominium;
3.
to refrain from assaulting, verbally abusing, swearing at, harassing, threatening or intimidating any member of the board, unit owner or occupier or staff member, contractor or other person doing business with the condominium including, without limitation, any person who has sworn an affidavit or provided evidence of any kind in this application; and
4.
to refrain from approaching, within 15 feet, except at a duly authorized board meeting or duly authorized meeting of unit owners: Maria Santos, Ana Agostinho, Sherry Dasilva, Ruth Abraham, Joao Tavares or Nedda Zaharelos.

In Justice Penny's view, before the harshest remedy is imposed, the applicant ought to be given the opportunity to show that she is capable of complying with the rules and regulations governing behaviour in this community.  I have made a restraining order imposing limitations on her behaviour. It is to be hoped that this order will have a salutary effect and that the respondent is able to demonstrate her willingness to change and to conduct herself in accordance with the rules which she agreed to when she purchased her unit.

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A
PCC No. 304 vs Lull Hirsi
Ontario Superior Court of Justice
CV-13-5632-00
Before: Justice Skarica
09 January 2
014

There is very little information given in the judgment because no one appeared for the respondent.

The judge was satisfied that given the outrageous and persistent conduct of the respondent, which included incidents of stabbing and shooting and other intolerable conduct that a perfect storm exists where the misconduct was serious and persistent, with exceptional impact on a building occupied by law abiding senior citizens and that the respondent, on the evidence is incorrigible and unmanageable.

The judge was satisfied that the respondent breached and violated s. 117 of the Condo Act and that it was fair and equitable to order her to sell her unit. She was also ordered to pay costs on a full indemnity basis of $19,930.15.

The facts of this case are described in detail on Condocentric.ca. Here is my take on this interesting case.

First, the behaviour of Lull Hirsi and her guests was outrageous and the level of real danger to the residents and employees of 20 Cherrytree Drive in Brampton was absolutely unacceptable.

So how did the corporation get her out so quickly?
1.
The board took their responsibilities seriously and they acted quickly.
2.
The condo community as a whole; management, security, the residents and the corporation's lawyer worked together to deal with this problem.
3.
The residents made numerous verbal and written complaints about the behaviour of Lull Hirsi and her guests.
4.
The condo's lawyer had 16 written reports from security, 14 written complaints from unit owners, two police reports regarding the shooting and stabbing incidents and seven affidavits from unit owners, property management and security personnel.
5.
The condo had assistance from the Peel Police in serving Notices of Trespass to visitors to the unit at the time of the shooting incident while they were in police custody.
6.
Lull Hirsi did not defend the application in court.

There are lessons here for other condos. When a resident or their guests start behaving in a deviant manner, immediately take the first steps to correct that behaviour.

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YCC No. 41 v. Schneider et al.
Superior Court of Justice—Ontario                                                  
Court File No:  CV-14-514647
Before: Justice Carole J. Brown
Heard: 17 June 2015

The condo corporation was looking for a motion finding that Neil and Linda Schneider failed to comply with the judgment of Justice Faieta dated 02 February 2015, and for an order that the they vacate and sell their unit as they have failed to comply with that judgment.

Mr. Schneider appeared in court for the first time and sought to adduce evidence. No evidence was previously served or filed. Further, they seeked to vacate the Order of Justice Faieta, although no notice of motion or motion record for such relief were served or filed. Accordingly, the judge made no determination in that regard.

Mr. Schneider stated that the foul odours complained of did not emanate from his unit, but rather from the unit across the hallway, where, he stated, the unit holders cooked curry all day. He stated that the odours were of curry.

The judge heard no evidence to support this. Indeed, the evidence is that foul odours, due to uncleanliness, emanated from the Schneider's unit. Further, he denied that his unit was unclean, or that it was infested with cockroaches.

He submitted that the photographs of the unit produced by the applicant were "staged". When the judge asked if he was asserting that they were not true, he confirmed this. Mr. Schneider further stated that they were taken by the condominium corporation which had illegally broken into and entered his unit.

The photographs in evidence comprise "screen grabs" or "screen captures" taken from a video. taken by the extermination company, Orkin, which was retained by the corporation to exterminate pests, including those in the Schneider's unit.

There was no evidence that the corporation illegally entered the Schneider's unit, or that it was staff from the condominium rather than Orkin that took the video from which the photographs were copied.

The evidence indicates that the respondents are in non-compliance of Justice Faieta judgment. They continue to refuse to permit the applicant entry to clean and de-infest the unit; they continue to fail to clean their unit in order to eradicate the severe infestation of cockroaches and prevent further infestations to continue; and they continue to prevent the transmission of offensive odours into the common elements and surrounding units. The respondents are in breach of the judgment as well as the provisions of the Condominium Act, sections 90 and 117.

The respondents' continued refusal to permit the applicant entry to the unit to address the maintenance and infestation issues is not only in breach of the court Order of Justice Faieta but is also contrary to the provisions of the Condominium Act, 1998, sections 19 and 92, as well as the Condominium's Declarations, Articles IV, section 1 (b), Article VII, section 1, Article XI, section 1 and Article XIV, and the Condominium's Rule 27.

The infestation and odours continue and the applicant continues to receive complaints from surrounding neighbours.

Section 134 & 135
A compliance order pursuant to sections 134 and 135 of the Act is justified in the circumstances of this case. The applicant is entitled to enter the unit within seven days of this order, after giving reasonable notice, to perform the necessary cleaning and the "flush and vac" extermination treatments recommended by Orkin, and is entitled to enter thereafter as necessary, with proper notice, to conduct all necessary follow-up treatments, until the infestation is eradicated. The respondents are to permit the applicant and their agents to enter as many times as are necessary to fully eradicate the infestation and thereafter, periodically, to ensure that the unit remains clean and pest-free The cleanup costs are all to be covered by the respondents pursuant to the Act, section 92(4).

Vacate and sell
In the event that the respondents' non-compliance with the Order of Justice Faieta continues, that the respondents continue to prevent the ordered treatments by barring entry to their unit, and persist in living in unhealthy, unclean, cockroach-infested surroundings, the applicant will be entitled to return to court to obtain an Order pursuant to section 134 of the Act requiring the owners to vacate and sell their unit.

Costs
The applicant is entitled, pursuant to the Act, section 134(3)(b) to the costs incurred by the applicant in obtaining this Order, to be added to the common expenses of the unit. In all the circumstances of this case, it is appropriate to order costs on a full indemnity basis. The other unit owners in the building should not have to bear the legal costs of securing compliance due to the intransigence of the respondents.

The applicant is granted its motion. The applicant is to provide proof of its legal costs.

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Condominium Plan No. 822 2909 v. 837023 Alberta Ltd
Court of Queen’s Bench of Alberta
Docket:    0903 03008; 0903 15874
Date:  12 March 2010

The Owners of the Water’s Edge condominium ask the court to evict the owner of the condominium units which are operated as a restaurant known as New Asian Village on the ground floor of the residential condo tower. In the alternative, the owners ask the court to direct that the restaurant owner:

obey and adhere to the condominium corporation bylaws;

not permit staff and associated individuals to threaten or harass members of the condo corporation Board and others in the complex;

not permit water to run unattended and for extended periods of time over frozen meats;

make timely payment of all condominium fines;

and other similar relief.

In support of their application, the Owners cite improper conduct by the owner of the restaurant which includes infringing the by-laws and rules of the condominium and offending the dignity of the co-owners. The specific conduct invoked includes: cutting a hole through the common exterior wall of the building and the removal and replacement of a common wall within the restaurant boundaries; late-night construction work in breach of an agreed construction schedule; and the attribution by the restaurant owner of  racist motives to the Owners’ expression of concerns.

incremental enforcement of by-laws is the norm
The Owners’ application is denied: even accepting for the purposes of this application that the Condominium Property Act allows a court to order the eviction of a condo owner where the corporation by-laws do not anticipate eviction, and although the Owners have established  that the restaurant owner engaged in improper conduct which, at least in part consisted of serious breaches of the condominium’s by-laws, eviction would be a disproportionate remedy in the circumstances here. Without finding that there could not never be such a serious breach of condo by-laws that would justify eviction of an owner, the court concludes that incremental enforcement of by-laws is the norm.
 
The restaurant owner’s misconduct by making apparently groundless accusations of racism against the Owners does not justify giving the Owners a remedy to which they would not otherwise be entitled.
 
Rather than subjecting the restaurant owner to eviction, the court orders the owner of units 210 and 211 (the ground floor restuarant):

to comply with the condominium’s by-laws;

to compensate the condominium corporation for the hole in the exterior wall, either by effecting a repair of the wall or by paying the corporation for the damage done to common property. If the parties are unable, within 30 days of the release of this decision to agree on the appropriate amount of compensation, Water’s Edge will be at liberty to  set up a hearing before me to set the amount of compensation;

within 15 days of the release of this decision, to provide the condo board with complete plans of all changes made to the HVAC system and to ask the condo board for approval of those plans;

within 15 days of the release of this decision, to provide the condo board with proof from the municipal fire service authorities that the restaurant’s premises comply with the fire code;

within 15 days of the release of this decision, to ask the condominium corporation for approval of the removal and replacement of the common property walls inside the restaurant premises.

For his part, the restaurant owner asks the court for a declaration that the Owners have attempted to impose improper sanctions on him and for a declaration that the Owners have improperly denied parking rights to restaurant patrons and staff.

The restaurant owner’s application is allowed in part: the condo board had no authority to impose fines on the restaurant owner. However, the restaurant owner has failed to produce the agreement on which it relies to claim a certain number of parking stalls; therefore, the restaurant owner is not entitled to the parking rights declaration it seeks.

Does the allegation of racism affect the sanction?
Although the restaurant owner’s allegation of racism will, understandably, make relations between himself and the condo board strained, those allegations themselves do not justify imposing a more severe sanction on the restaurant owner than his actions would otherwise justify.

It is a serious matter to make a reckless allegation of racism; any person correctly labelled a racist should be, and feel, stigmatized. The members of the condo board who were themselves so labelled may have a recourse against the restaurant owner pursuant to the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H‑14.

However, even if a complaint of racism were made out against the restaurant owner, the condo board acknowledges that that finding would not, on its own, justify the eviction of an owner any more than would a finding of racism by the Human Rights and Citizenship Commission authorize the City of Edmonton to  evict the owner of a single family dwelling from his residence.

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NNCC No. 6 v. Temideo
Superior Court of Justice—Ontario                                                  
Court File No:  56107/15
Before: Justice G. E. Taylor
Heard: 15-16 November 2016

The Condominium applied for an order that Kimberly Watson (the tenant) permanently vacate unit 511 or alternatively that there be an order that she comply with the declaration, by-laws and rules of the condominium and in particular that she refrain from causing undue noise by shouting, dropping heavy objects on the floor of unit 511 and pounding on the walls of the unit.

Kimberly Watson was the daughter-in-law of the owner, Jean Temedio.

Jean Temedio had a separate application in which she wanted an order that the lien for legal costs registered against her unit be vacated.

The dispute
In the spring of 2013, the owner of unit 411, which is immediately below unit 511, leased the unit to Randall Dorion.  Beginning in 2013, the property manager began receiving complaints from both Kimberly Watson and Randall Dorion about noise coming from the other’s unit.

The property manager sent a letter to Kimberly Watson dated 17 October 2013 regarding the noise complaint made by Randall Dorion. That letter stated:
"As there seems to be issues between the two of you, the Corporation will not take any further action in this regard.  This is an issue between residents and it must be resolved between the two of you."

Satring in April 2014, residents in unit 411 and other units, complained about the noise and cursing coming from Unit #511.

On January 20, 2015, the condominium registered a lean against unit 511 for legal fees incurred in relation to this application in the total amount of $1,714.20.

The tenant in Unit #411 moved out at the end of March 2015 and the noise complaint lessened.

The judge stated:
"In my view, it is unfortunate that both sides to this dispute chose to adopt confrontational positions. It would have been far more appropriate had the Condominium simply approached Jean Temedio and Kimberly Watson requesting their assurance that, in the future, they would abide by the rules of the Condominium. I find it to be significant that, for the most part, the concern about noise emanating from unit 511 had abated after Randall Dorion moved out of unit 411. On the other hand, as I have said, it was not appropriate for Jean Temedio and Kimberly Watson to simply ignore the concerns of the Condominium."

Judgment
Jean Temedio was advised in at least three letters that the condominium would charge her unit with the legal fees incurred in securing compliance with the rules. The lien stood.

The judge stated:
"However, I do not approve of the action of the Condominium in continuing to seek the extreme remedy of eviction of Kimberly Watson and Robert James as tenants of unit 511. A less heavy-handed approach might very well have avoided an application to the court. It was also open to the Condominium to apply to the court for an order requiring Jean Temedio and Kimberly Watson to comply with the rules."

Costs
"Therefore, although the Condominium was successful in obtaining an order in this proceeding, I have a discretion with respect costs.  In fixing costs, I take into consideration the amount of the lien which has already been registered against unit 511. I therefore fix the costs of this application payable to the Condominium by Jean Temedio and the Kimberly Watson, jointly and severally, in the amount of $2,500 inclusive of disbursements and HST. This amount shall be charged to the common element expenses of unit 511."


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