All of that is not serious enough to impose the ultimate sanction of forcing Edna Merle Hayes to sell her unit in a Toronto condominium development, according to Ontario Superior Court Justice Michael Penny. Furthermore, in an August 2012 ruling in the case of York Condominium Corp. No. 137 v. Hayes, the judge declined to order Hayes be removed from the condominium corporation board, stating this should be dealt with through the democratic process set out in Ontario’s Condominium Act.
Penny did, however, give Hayes stern warning, telling her to “to refrain from assaulting, verbally abusing, swearing at, harassing, threatening, or intimidating” other board members, residents, staff members, contractors, or others doing business with the condominium, or anyone who has sworn an affidavit or provided evidence against her.
“But if you need to tell someone not to do that, what do you expect to come out of it? It’s like asking the scorpion not to sting the frog,” says litigator Rodrigue Escayola, an Ottawa-based partner with Heenan Blaikie LLP, who frequently acts for condominium corporations. “I’m hoping that the judge was right in giving the person a chance to redeem herself but I don’t have a lot of hope. The consequences of this are that the owners are stuck and forced to continue to live with the aggressor,” says Escayola. If there are any more incidents, the condominium corporation is free to go back to court with a new application, but this would be costly and emotionally taxing.
Forcing a miscreant unit owner to sell and move out is an extreme remedy. Peter Roberts, a partner with Lawson Lundell LLP in Vancouver, describes it as “the nuclear option.”
It was a step too far for the British Columbia Court of Appeal in the case of The Owners Strata Plan LMS 2768 v. Jordison. In July, the court overturned a lower court order that Rose Jordison sell her unit in a Surrey, B.C., condo development in light of a litany of complaints against her and her son Jordy Jordison involving excessive noise, obscene language, and harassment of other residents that the court considered as amounting to assault. As in the Hayes case, the court made an order requiring the Jordisons refrain from making loud noises, obscene gestures, and abusive or obscene comments directed at other residents. The ruling left it open for a future court to decide whether or not to force the sale of the unit if the Jordisons keep harassing neighbours.
The common law notion that your home is your castle is still alive and well, but in the condominium setting there are some limits. If you use your castle as a base for marauding among your neighbours, violating the peace and security of the condominium community, the courts do have authority under condominium legislation to force a sale and have indicated they will exercise this authority in egregious cases, according to James Davidson, a partner with Nelligan O’Brien Payne LLP in Ottawa and editor of the Canadian Condominium Institute’s quarterly publication Condo Cases Across Canada.
Cases where courts are asked to consider turfing out a unit owner are far more frequent than they used to be and judges are making such orders surprisingly often, says Davidson, who reckons he now comes across a couple of such cases every year. “In order to make condominiums work, you have to protect the quiet enjoyment of those other people and the idea that a home is a person’s castle falls away a little bit,” he says, noting there are rules members of a condominium corporation agree to follow, which have the force of law. To enforce these rules, he says, “courts can make whatever order they deem appropriate and that’s typical in the legislation across Canada.”
So what tips the scale of justice enough for a judge to resort to the nuclear option? What behaviour is so egregious as to get you kicked out of your castle?
Terrorizing neighbours with an aggressive unleashed Rottweiler and letting it chase after children, deliberately disconnecting a neighbour’s cable television and destroying another’s garden, throwing gravel in someone’s face, physically assaulting residents, and shouting racist and homophobic obscenities. These were among the allegations leveled against Natalia Korolekh, whom Escayola described as the “ultimate neighbour from hell.”
In the 2010 case of Metropolitan Toronto Condominium Corp. No. 747 v. Korolekh, the Ontario Court of Justice heard evidence from one resident of the downtown Toronto condo development whose daughter was afraid to play on her own balcony and from another who didn’t think it was safe to have her frail and elderly mother stay with her, describing how she felt she had been robbed of “the ability to care for my loved ones in the comfort of my own home.”
In ruling that Korolekh be required to sell her unit, Justice Michael Code described the case as “the perfect storm where the misconduct is serious and persistent, where its impact on a small community has been exceptional and where the Respondent appears to be incorrigible or unmanageable.” In rejecting the idea that Korolekh’s behaviour could be controlled by means of a court order, the judge said, “Given the breadth of her misconduct, any compliance order would involve the Court in managing every aspect of Ms. Korolekh’s life from her manner of speech, her music, her dog, her gestures and her menacing presence in the courtyard, as well as the more obvious need to enjoin any physical assaults or mischief to property.”
But that is what a condo corporation must try to do before bringing such a case to court and, in order to persuade a judge that it is necessary to force someone out of the condominium community, they need to have a well-documented history of the alleged abuses, the evidence for them, and the corporation’s attempts to deal with them, says Roberts.
Davidson observes that these cases are often complicated by the fact the perpetrator may well suffer from a disability or a mental illness, in which case human rights issues come into play. “In many cases, it takes a long time. You have to go through all the other possible remedies,” he says, before you can convince a court there is no other alternative and “although the unacceptable conduct may be the result of a disability, the other owners don’t have to put up with it anymore.”