Condominium Authority Tribunal
Date: September 30, 2022 Case: 2022-00230N
Order under section 1.44 of the Condominium Act, 1998.
Member: Patricia McQuaid, Vice-Chair
The Applicant, Durham Condominium Corporation No. 80 Represented by Victor Yee, Counsel
The Respondent, Marilyn Occleston Represented by Kelly Aitchison, Counsel
Hearing: Written Online Hearing – June 15, 2022 to September 8, 2022
REASONS FOR DECISION
A. INTRODUCTION
1The Applicant, Durham Condominium Corporation No.80 (DCC80), filed this case with the Tribunal for enforcement of its no smoking rule (the “Rule”) against the Respondent Marilyn Occleston, an owner and resident of a unit in DCC80. The case proceeded through the Tribunal process and in Stage 2 Mediation, the parties agreed to a Consent Order dated June 1, 20221. In that order, the Respondent agreed not to allow smoking in her unit, in her exclusive use balcony, or in DCC80’s common elements, whether by herself or anybody else.
2Costs were an issue in Stage 2 and there was no resolution. The parties agreed to have the issue of costs adjudicated in Stage 3. They did agree that the substantive issues had been resolved. The parties acknowledged in this hearing that enforcement in relation to the terms of the Consent Order must be pursued through the Ontario Superior Court of Justice. Therefore, the sole issue in this case is whether the Respondent should be required to pay the Applicant’s legal costs, both those incurred prior to the filing of the case on April 5, 2022 in the amount of $3709.80 and those incurred after, in the amount of $9014.02. DCC80 is seeking full indemnity of its legal costs.
3For the reasons set out below, I order the Respondent to pay compensation of $2500 and costs of $2275 to DCC80 within 30 days of this decision.
B. BACKGROUND
4I will provide some context for this dispute though the issue is a narrow one. Both parties sought to lead evidence and made arguments on issues beyond the parameters of the issue to be decided. For example, DCC80 submitted evidence which it alleged showed that the Respondent was not complying with the Consent Order, on the basis that noncompliance should be a consideration when determining the Respondent’s liability for costs. The Respondent, in closing submissions alluded to harassment and stalking of her by the DCC80 board, and in particular by one board member who was the primary complainant about the smoking. What some of the evidence and submissions underscored was a degree of acrimony between at least one of the residents of DCC80 and the Respondent. While unfortunate, these are not issues which the Tribunal can remedy in this matter. I have considered all of the evidence and submissions but will only refer to that which is relevant to my decision.
5In June 2018, the DCC80 board approved a new rule which prohibits smoking on its property including in units and on exclusive use common elements such as balconies. In a letter dated June 8, 2018 to unit owners, the board explained the new rule and gave current unit residents the ability to register, by September 10, 2018, with the management office in order to be “grandfathered” to allow them to continue to smoke.2 Attached to the letter was the new rule as well as the form to register for the exemption. The Rule came into effect on July 9, 2018. If a resident did register, the Rule stated that the exemption would exist for up to two years unless revoked earlier pursuant to the terms of the grandfathering agreement. One such term was that the exemption could be revoked if the smoking unreasonably interfered with the use or enjoyment by other residents of the common elements and the other units.
6DCC80, in its evidence, provided through Allan Radbourne, the board president, asserts that the Respondent did not file the registration form for the exemption. The Respondent testified that she does not recall whether she submitted the form or not, but she believed she must have given that the Respondent’s daughter lives with her and, at the time, her daughter was a smoker. Though the parties spent some time in evidence and submissions on this aspect of the dispute; that is, whether or not the Respondent’s unit was grandfathered and whether or not smoking was unreasonably interfering with the use or enjoyment of other owners, in any event, any exemption expired, by the terms of the Rule, on July 9, 2020, two years after the Rule took effect, or at the latest, September 10, 2020, two years after the date of execution of any grandfathering agreement. I make note of these dates because Respondent’s counsel submitted that the letter received by owners in June 2018 did not refer to an expiry date for the grandfather exemption. The Rule, however, did refer to various time periods, as set out above.
7The DCC80 board began receiving complaints about smoking in the Respondent’s unit impacting a neighbour in October 2021. Between October 2021 and April 2022 one neighbour recorded dozens of occasions on which they smelled smoke, allegedly from the Respondent’s unit. DCC80 sent letters to the Respondent on October 13 and October 20, 2021, advising the Respondent that they had received an increasing number of complaints from other unit owners. The Respondent’s counsel responded to the correspondence by letter dated October 20, 2021. The Respondent did not deny that smoking was occurring in the unit (though not on her balcony) but stated that mitigating steps had been taken and that it was unlikely that smoke was interfering with any other unit.
8Following this letter from Respondent’s counsel, DCC80 engaged legal counsel to respond with what was the first legal enforcement letter. This was followed by an email from DCC80’s counsel on January 10, 2022, advising of continuing complaints