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January 20, 2014 - By Antoni Casalinuovo

Sticks and Stones May Break My Bones … Is This the Test? PCC 304 v. Hirsi

On January 9, 2014, I attended the Ontario Superior Court of Justice in Brampton on behalf of a quiet, well-managed 200 unit condominium corporation seeking an Order to force a unit owner to vacate and sell her unit as a result of violent conduct, the abuse of alcohol and drugs on the common elements and disturbing the use and quiet enjoyment of property.

The conduct at issue began in July 2013, when various unit owners began complaining about the unit owner and her guests disrupting private functions in the party room, playing loud music at all hours of the night and consuming alcohol and/or drugs on the common elements.  These actions began to escalate in the weeks to come, including fist fights and the threatening of unit owners, property management and other guests.  These threats included numerous promises of murder and rape.  On each and every occasion where a threat of this nature was made, unit owners and/or security personnel contacted Peel Regional Police. 

The compliance process was started by the usual letter being issued and steps were being taken to seek a necessary compliance order. However, this behaviour did not stop. In fact it got worse… much worse.  

Over the next two to three months, Peel Regional Police attended PCC 304’s premises on six (6) different occasions to address the unit owner and her guests’ behaviour. Circumstances escalated dramatically in the last week of November 2013, when a double stabbing occurred on the common elements resulting in two individuals being taken to hospital and various guests of the unit owner being taken into police custody.  Approximately two and a half weeks later, another incident occurred where Peel Regional Police’s SWAT division was required to attend in response to a shooting in the unit.

Needless to say, the community of PCC 304, mostly seniors, was in great disharmony and a number of unit owners were afraid of their own safety and security.  The condominium corporation had no other alternative but to expedite an Application with the Ontario Superior Court of Justice with the view of compelling the unit owner to leave the community.

The leading case in Ontario for obtaining an Order forcing a unit owner to vacate and sell their unit is Metropolitan Toronto Condominium Corporation No. 747 v. Korolekh, [2010] ONSC 4448 (“MTCC 747 v. Korolekh”).  At the hearing of the Application, we were able to demonstrate to a Judge that the unit owner’s conduct satisfied the four (4) part test contained in that case, namely:

  1. That the unit owner’s conduct was serious and persistent;
  2. That the impact of the unit owner’s misconduct had been exceptional;
  3. That the unit owner appeared to be incorrigible or unmanageable; and
  4. That the unit owner showed no sign that they were willing or able to change.

The Judge in this case also recognized that in accordance with Section 264.1 of the Criminal Code of Canada, RSC 1985, c C-46, the definition of bodily harm includes physical and psychological harm.  In this case, the Judge recognized that the perception of harm that various unit owners described in their Affidavits was valid.  For example, a neighbour of the unit owner gave evidence with respect to a threat that was made by the unit owner and/or her guests, whereby an empty bottle of liquor shaped like a human skull was left on her doorstep and was perceived to be a threat to her personal safety as she had previously made numerous complaints, both written and oral to property management regarding the conduct of the unit owner.  In the eyes of the neighbor, this action was a promise of future retaliation.

Ultimately, the Judge was persuaded by sixteen (16) written reports from security personnel, fourteen (14) written complaints from unit owners, two (2) police reports regarding the shooting and stabbing incidents and seven (7) Affidavits from unit owners, property management and security personnel.  The combined effort of the PCC 304 community served to successfully demonstrate that in such a short period of time, the unit owner’s conduct escalated and compromised the safety, security and quiet use and enjoyment of all individuals in the community.

Although this case differs from the MTCC 747 v. Korolekh case whereby the conduct complained about in this instance only began in July 2013 - whereas in the aforesaid case complaints against that unit owner had been going on for a number of years, the Court was able to overlook the short timeframe due to the violent nature and serious concerns with respect to the safety of the community as a whole.  The Judge had sufficient evidence to make the Order compelling the unit owner to sell her unit. 

The condominium corporation also took advantage of one incident when the Peel Regional Police were on site by having the Police on behalf of Property Management serve Notices of Trespass to various individuals who were visitors to the unit at the time of the shooting incident while they were in police custody.  The Police were able to provide us with the name of these individuals, we drafted the Trespass Notice, and the Police then served them in a matter of minutes – a very effective process. The condominium community as a whole was active in trying to address this outrageous conduct.

In addition to the Order mandating the unit owner to sell her unit, the condominium corporation was also granted its costs on a full indemnity basis.  The Judge, in this case, recognized that the innocent unit owners, some of which were victims of the unit owner’s conduct, should not be burdened with the costs that the condominium incurred in bringing this matter before the Courts.

Ultimately, the decision was a great victory for the condominium community as it begins the process of healing and restoring harmony.

I would like to make it clear that obtaining a Court Order to compel a unit owner to sell their unit within two (2) months is a difficult task.  In Ontario, this is only the third reported case where an Order has been obtained to force a unit owner to sell their unit the first time the condominium appeared before a Judge. For example in the 2013 decision of York Condominium Corporation No. 82 v. Singh, the condominium was required to first obtain a compliance Order against the unit owner and then bring the matter before the Courts one year later when that first Order was breached.  When the matter was re-litigated, the Court then made the Order forcing the unit owner to sell their unit.  The Courts consider a forced sale an extreme remedy that should only be used in the rarest of circumstances.  Thus, in the case of YCC 82 v. Singh, the condominium required a “second kick at the can.”

In the case of PCC 304 there was a perfect storm of escalating violent conduct that showed no sign of ending. The condominium corporation had no choice but to seek the relief forcing the unit owner to sell the unit and the Court agreed in this instance that this extreme relief was appropriate.

http://canlii.ca/en/on/onsc/doc/2014/2014onsc346/2014onsc346.html


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