Every month I provide a brief summary of some recent Ontario condominium cases. This small claims court decision from April 2013 (Carriero v Carli, 2013 CanLII 88835) caught my eye as deserving some extended discussion.
The defendants began renting a unit belonging to the plaintiff in March 2010. About a month later the property manager of the condominium sent a letter to the plaintiff, alleging that his tenants were keeping a dog in the unit, drawing his attention to the rule forbidding pets and asking that the dog be removed. The plaintiff got in touch with his tenants who refused to remove the dog. Their position was that the condominium management was “only trying to scare” him.
Comment: Regular readers will know that I believe you should never ignore a letter from the condo board. While the plaintiff did not ignore the letter, there is no indication that he responded in writing, spoke to the condominium management or sought legal advice.
About a week later the defendants’ lawyer wrote to the property management company, stating the view that the “no pets” rule was unenforceable. The lawyers for the condominium corporation wrote back, stating that the rule was indeed valid, and that they would begin court proceedings against the plaintiff and his tenants if the dog was not removed by May 7, 2010. The defendants took the view that they would not be “bullied” by the property manager who was enforcing the “no pets” rule on a selective basis.
Comment: The plaintiff did not seek legal advice at this time, and would only do so months later, in October. Was he relying on the opinion of his tenants’ lawyer? If so, this was ill-advised. Had he consulted a lawyer on his own behalf, the plaintiff might have had a better idea of the possible consequences of inaction. (See my website for information on the importance of lawyers in mediation.)
Will it surprise anyone reading that the defendants did not remove their dog? Over the next four months the condominium’s lawyers billed the corporation nearly $13 000 in fees regarding this matter. The corporation, invoking their legal right to recover costs associated with enforcing the condominium’s rules, registered a lien for this amount against the plaintiff’s unit.
Comment: The provision in the Condominium Act that boards can “charge back” the costs of enforcement to owners who have broken the rules is meant to protect “innocent” owners from the high costs of litigation. Owners who fail to abide by rules should be aware that legal costs can balloon out of control amazingly quickly. Two recent examples are York Condominium Corporation 345 vs. Qi and Ottawa-Carleton Standard Condominium Corporation No. 671 v. Friend.
In November 2010, as the result of a Superior Court application at Brampton, the dog was ordered removed and the defendants were ordered to pay $2000 in costs.
The plaintiff estimates that he has spent $23 000 in the matter (including around $13 000 legal fees incurred by the condominium.) In this application to the small claims court, he sought to recover these costs from the defendants, arguing that their “defiant” behavior and attitude caused his damages. In considering his application Deputy Judge Klein noted that: (1) The Condominium Act states that an owner must take “all reasonable steps” to make sure that his tenants, or anyone else in his units, complies with the condominium’s declaration, by-laws and rules. (2) Although the plaintiff is a “victim” here, he should have attempted to mitigate his situation by ousting the defendants from his unit and/or challenging the amount of fees charged by the condominium’s lawyers. (3) The fees charged in this case were “excessive and simply out of line.”
The judge also noted that, despite the provision in the Condominium Act that disagreements between the corporation and owners be resolved through mediation or arbitration, there was no evidence that either was attempted.
Comment: Some lawyers take the view that, when the issue is a straightforward violation of rules, there is no obligation to mediate. Is this a conflict that should have been mediated? (See for example, The Judge’s Dog, The Elusive Parrot or The Sisters Upstairs and the New Hardwood Floors.) I do not have enough information to know whether mediation might have resulted in a better outcome in this case. My own view is that, while mediation is not advisable in every condominium dispute, it is probably advisable more often than is realized. See my post on why you might want to keep talking, even if it seems there is “nothing to discuss.”
The judge ruled that although the defendants were at fault (for refusing to remove their dog) the plaintiff must bear some responsibility. In particular, he should have sought legal advice at an earlier date, attempted to remove the defendants from his unit and challenged the amount of fees charged by the condominium’s lawyers. The judge awarded the plaintiff $13 000 in damages and $750 in costs.
Comment: You can read the full text of the judge’s decision here.