Collective Decision Making, by Cockroaches and Condos

Condominium communities, wherever located, must deal with all kinds of pests, but in recent years it appears that cockroaches and bed bugs have made a resurgence in Ontario’s high-rises. From a layperson’s perspective, while cockroaches seem to display complex group decision-making behaviour, individuals residing in condominium communities are not always so uniformly assembled. Two recent decisions of this province’s Superior Court of Justice help shed some light on how condominium corporations can deal with the pest and people issues even when certain unit owners refuse to acknowledge the problem and assist in these collective efforts.

York Condominium Corp. No. 41 v. Schneider (“Schneider”)

In York Condominium Corp. No. 41 v. Schneider, 2015 ONSC 3919, the unit owners failed to comply with an earlier judgement of the Court dated February 2, 2015, which ordered that the owners allow YCC 41 to enter and clean the unit, discard unsanitary items, and undertake efforts to eradicate the unit’s serious cockroach infestation. On June 17, 2015, the condominium corporation re-visited the Court and successfully obtained a compliance order against the unit owners, pursuant to Section 134 of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), to compel the owners’ cooperation and escalate the ramifications if same was not forthcoming. If the unit owners further breached the compliance order, YCC 41 would be entitled to return to Court and seek a Section 134 order for the unit owners to vacate and sell their unit.

The Superior Court of Justice ruled that the health risks and dangerous conditions associated with the unit’s unsanitary condition, noxious odours, and cockroach infestation constituted breaches of Section 90 (maintenance) and Section 117 (dangerous activities) of the Act. Moreover, the unit owners’ refusal to permit YCC 41 entry into their unit to perform maintenance work constituted breaches of Section 19 (right of entry) and Section 92 (work done for owner) of the Act.

The Court also held that the unit owners’ conduct was oppressive and unfairly prejudicial towards YCC 41 and the other unit owners, in contravention of Section 135 of the Act.

The condominium corporation was successful in not only obtaining all of its costs for the cleanup, pursuant to Section 92(4) of the Act, but all of its legal costs in obtaining the compliance order as well. The Court relied on previous decisions of Wentworth Condominium Corporation No. 34 v Taylor, 2014 ONSC 59, Peel Condominium Corporation No. 304 v. Hirsi, 2014 ONSC 346, and Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc., 2005 CanLII 13778 (ON CA) – the latter two cases of which Elia Associates directly or indirectly represented the successful parties – to grant YCC 41 its legal costs on a full indemnity basis. The Court found that:

“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.”

Carleton Condominium Corp. No. 25 v. Patrick Eagan (“Eagan”)

In Carleton Condominium Corp. No. 25 v. Patrick Eagan, 2015 ONSC 4353, the unit owner was found by the Superior Court of Justice to be in breach of Section 117 (dangerous activities) of the Act, as the unsanitary and cluttered condition of his unit was impeding the Corporation’s efforts for nearly two years to address a bed bug infestation which existed in his unit and that had spread to a neighbouring unit.

Although the Court ruled that all of CCC 25’s costs related to the cleaning and pest control of his unit were to be added to the unit owner’s common expenses pursuant to Section 92(4) of the Act and CCC 25’s Declaration, the Court declined to award CCC 25 its legal costs on a full indemnity basis. The Court held that the indemnity clause in CCC 25’s Declaration only addressed the Corporation’s full recovery of its costs where a unit owner’s conduct affected the common elements and/or all other units, and not where the unit owner’s conduct only pertained to his own unit, which was the case here.

Accordingly, the Superior Court of Justice awarded CCC 25 its legal costs on a substantial indemnity basis, in the amount of $8,000.00 plus HST and disbursements.

In both the Schneider and Eagan cases, the condominium corporation proceeded on the basis that the unsanitary conditions of the unit and insect infestations were dangerous conditions in contravention of Section 117 of the Act. Accordingly, both YCC 41 and CCC 25 were forced by their duty under Sections 17 and 117 of the Act to bring applications for a Section 134 compliance order against the offending unit owners.

However, in Schneider, the condominium corporation had already successfully obtained an earlier compliance order, which the unit owners were then found by the Court to be in breach of. The unit owners’ defiance of an earlier order may have been an aggravating factor for the Court to hold them wholly responsible for the condominium’s costs in legally enforcing against them; in contrast to Eagan, where that was the first instance that the unit owner was found by the Court to be in breach of the Act.

If Cockroaches Can Work Together, Condominium Residents Can (Be Compelled To) Too

Part and parcel with choosing to live in a communal environment, particularly in high-rise condominiums, is the trust that neighbours must place in each other to keep their respective units in a relatively sanitary and infestation-free condition. One person’s failure to do so endangers the health, safety, and property of his/her neighbours and the common elements of the condominium at large, as insects themselves see no distinction between the units or between the units and the common elements. While the evidentiary link between unsanitary conditions and certain insect infestations has been disputed, significant clutter and debris strewn about a unit will undoubtedly impede a contractor from effectively remedying pest issues. Accordingly, all of the unit owners, occupants, and the Board of Directors of a condominium corporation must work together to minimize the likelihood of an insect issue arising.

When one unit owner refuses, or fails, to cooperate, the entire community suffers – though, as Schneider and Eagan demonstrate, the condominium corporation is not without recourse.  The condominium can take the noncompliant unit owner(s) to Court, and in extreme cases, recover some or all of its legal costs for doing so.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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