Metropolitan Toronto Condominium Corporation No.818 v. Tahseen et al., 2022 ONCAT 8

CONDOMINIUM AUTHORITY TRIBUNAL

DATE: January 18, 2022 CASE: 2021-00217N

Citation: Metropolitan Toronto Condominium Corporation No.818 v. Tahseen et al., 2022 ONCAT 8

Order under section 1.44 of the Condominium Act, 1998.

Member: Patricia McQuaid, Member

The Applicant: Metropolitan Toronto Condominium Corporation No.818 Represented by Karen Kisiel, Counsel

The Respondent: Muhammad Tahseen Represented by Daniel Greanya, Paralegal

Sunjida Mohammed Represented by Daniel Greanya, Paralegal

Hearing: Written Online Hearing – September 22, 2021 to January 10, 2022

REASONS FOR DECISION

A. INTRODUCTION

1The Applicant, Metropolitan Toronto Condominium Corporation No. 818 (“MTCC 818”) alleges that the Respondents, owners of a unit in MTCC 818, have failed to comply with various provisions in its declarations, by-laws and rules. Specifically, MTCC 818 asserts that between December 2020 and October 2021, the Respondents parked their car in their exclusive use common element parking space (identified as P16) while it was leaking oil onto the parking space, resulting in damage to the parking garage. Initially, MTCC 818 sought an order requiring the Respondents to fix their car or remove it from the property; however, in closing submissions, MTCC 818 stated that the problems with the leaking vehicle had been rectified and therefore it was no longer requesting that order. MTCC 818 continues to request an order allowing it to access the parking space for the purpose of carrying out repairs and an order for reimbursement of its costs to repair the damage, its legal costs incurred in seeking compliance prior to the commencement of this application in June 2021 and the engineering costs incurred to determine the damage to the parking space, as well as its legal costs in this application.

2The Respondents assert that they acted promptly to have their car checked for leaks, that it had no leaks and there has been no breach of any provisions of the governing documents. The Respondents also assert that if there is any damage to the parking space requiring repair, any such damage was not the result of any leaks from their vehicle.

3One issue that arose during this hearing which provides some context to this dispute is whether MTCC 818’s pursuit of this matter was motivated by ‘animus’ toward the Respondent Mr. Tahseen. Mr. Tahseen raised this issue through his testimony and through documents provided at the hearing. I note that this is not the first case between these parties before the Tribunal. Mr. Tahseen has also filed a complaint with the Condominium Management Regulatory Authority of Ontario against MTCC 818 (a self-managed condominium corporation) and Adam Wroblewski, a board member, and the property manager. Mr. Tahseen also points to the fact that he received two different letters from MTCC 818’s legal counsel on April 29, 2021 - one regarding the issue in this case and the second addressing what MTCC 818 asserts were false allegations /complaints made by Mr. Tahseen with the intent of disparaging MTCC 818 and its board members, particularly Mr. Wroblewski.

4Based on the evidence before me, there may well be some amount of ill will between the parties (despite Mr. Wroblewski’s statements denying same); however, I do not conclude that MTCC 818’s actions to enforce its rules was motivated by animosity toward Mr. Tahseen, though its approach to enforcement may have been affected by their past history. The impact of that will be considered below when addressing the issue of costs.

5The issues for me to decide are as follows:

1. Have the Respondents failed to comply with MTCC 818’s governing documents?

2. If the Respondents have failed to comply, should any or all of the following orders be issued:

a. an order requiring the Respondents to allow the Applicant access to the parking space P16 to carry out repairs;

b. an order requiring the Respondents to reimburse the Applicant for costs of repair to the parking space, its legal and engineering costs incurred in seeking compliance as well as its costs incurred in this proceeding?

B. RESULT

6For the reasons set out below, I find that the Respondents have failed to comply with MTCC 818’s governing documents and order that access to the parking space be provided by the Respondents to allow the corporation to carry out necessary cleaning and repairs, the costs of which shall be no greater than $1808, which is to be paid by the Respondents. Further, the Respondents shall indemnify the corporation for the costs to secure compliance in the amount of $1385.18 and reimburse fees paid to the Tribunal in the amount of $200.

C. ISSUES & ANALYSIS

Issue no. 1: Have the Respondents failed to comply with MTCC 818’s governing documents?

7In order to answer this question, I will review in some detail the evidence relating to the oil leaks (as alleged) and clean-up.

8Mr. Wroblewski testified that as part of his periodic inspection of the property, he noticed in October 2020 that several P1 level parking spaces were “contaminated with car fluids”, though not at P16, the Respondents’ parking space. I note his evidence that dealing with the oil and other fluid leaks on P1 level has been a long-term struggle. As a result, Mr. Wroblewski prepared “warning letters” to owners requesting that they clean up their respective parking spots and repair their cars or remove them from the parking garage The documentation provided by MTCC 818 shows that between October 2020 and October 2021, at least 30 warning letters were issued to owners.¹ This evidence suggests that not only were the Respondents not specifically targeted, but also that there appeared to be a persistent problem relating to the leakage of car fluids and damage to parking spaces. I note that in these standard form letters, MTCC 818 states that should an owner fail to have the necessary repairs done and not clean up the oil, the corporation will clean the parking spot at the owner’s expense. Generally, MTCC 818 provided between two and five days for the clean-up to be completed and provided an estimate of the cleaning cost should it be required to do it. The letters also advised that failure to comply would result in MTCC 818 engaging its lawyer in order to ensure that the rules of the corporation are followed and that any legal costs associated with the matter would be charged back to the unit and enforced in the same manner as a lien.

9The rule cited in these letters is Rule 53 which states:

53. No person shall place, leave, park or permit to be placed, left or parked within the parking garage or upon the common elements any motor vehicle which, in the opinion of the building manager or as directed by the board, may pose a security or safety risk, either caused by its length of unattended stay, its physical condition or appearance or its potential damage to the property. Upon seventy-two (72) hours written notice from the building manager, the owner of the vehicle shall be required to either remove or attend to the vehicle as required and directed by the building manager, in default of which the vehicle shall be removed from the property at the expense of the owner. If the motor vehicle is left standing in a parking space or upon the common elements as an unlicensed or unregistered with the building manager, the vehicle may be towed away without notice to and at the owner’s expense.(emphasis added).

10Mr. Wroblewski first noticed a “significant” leak of fluid that appeared to be engine or transmission oil under the Respondents’ car at P16 at the beginning of December 2020. The standard warning letter was sent to the Respondents on December 2, 2020, requesting that repairs and clean up be completed by December 7, 2020, after which a compliance inspection would be done by MTCC 818. The estimate given for the cost of cleaning if undertaken by MTCC 818 was between $100 and $500. Mr. Wroblewski testified that shortly thereafter the parking space was cleaned by the Respondent Sunjida Mohammed and no further action was taken at that time.

11It was not until April 2021 that a leak at P16 was noticed by Mr. Wroblewski again; he described it as an “extensive” leak of car fluid. Mr. Wroblewski stated in his evidence that it was not possible to properly monitor fluid leaks in the garage during the winter months, but the fact is there is no evidence before me that the Respondents’ car was leaking between December and April. I note here too that the Respondents submitted that there were no tests done to verify that the substance was oil at any time or that it was leaking from the Respondents’ vehicle. It is true that it was not tested, but on this point, I accept the evidence of Mr. Wroblewski as well as Andre Pacheco, a security desk supervisor for MTCC 818 who took various photographs of the parking spot, that the substance had the smell and appearance of oil. In addition, there is no credible evidence that another vehicle was parked in P16 causing the leak stains to appear, as alleged by Mr. Tahseen.

12Mr. Wroblewski decided to consult with Sanmuganathan Thulasinathan, a civil engineer involved with MTCC 818 on various projects since 2010, about his observations. Based on a photograph sent to him, Mr. Thulasinathan (who gave evidence at the hearing) advised Mr. Wroblewski that the large amount of oil on the mastic topping surfaces² is damaging and the oil leak should be eliminated and the mastic topping protected. MTCC 818 did not send another of its standard warning letters but instead requested that its counsel send a letter to the Respondents³, requiring that pursuant to Rule 53, within 72 hours the vehicle be removed or fixed and that written confirmation be provided of compliance. Further, counsel stated that the Respondents would be held responsible for the legal costs of her involvement in the matter which were in the amount of $622.43, with payment to be made by May 13, 2021.

13Counsel did note in her letter that there had been a previous issue with the Respondents’ vehicle in December 2020 and that the parking space had been cleaned, but it was “evident that they have not fixed the problem with your vehicle”. As noted above, there is no evidence before me at this hearing on which to conclude that the problem with any leaking of fluid from the vehicle persisted between December 2020 and April 2021. The evidence is more consistent with a new issue arising in April 2021.

14On May 5, 2021, the Respondents provided MTCC 818 with an invoice from Firman Auto Service which indicated “checked for oil leaks – could not find a leak – no charge”. However, Mr. Wroblewski testified that fresh oil leaks were observed on May 10 and May 29, 2021. At that point, he observed cracks in the mastic topping. This precipitated another letter, dated June 1, from MTCC 818’s counsel noting that more leaks had been observed with significant staining and damage to the mastic layer/waterproofing, and requesting that the vehicle be removed, or properly fixed, within seven days. At this point, counsel’s costs were noted as an additional $1641.49 and reimbursement was requested. At this time as well, emails were exchanged between Mr. Tahseen and MTCC 818 wherein he denied any access to the parking space, reflecting an increasing level of animosity. Mr. Tahseen, in his evidence, described the relationship with the MTCC 818 board as “strained”. Perhaps an understatement.

15In his evidence, Mr. Tahseen has provided documents indicating that he regularly maintained his vehicle and that there was no leak of oil or other fluids. I agree that the documents support his position that he regularly had his vehicle checked. Mr. Lube service invoices indicate service since 2018. However, I also note that there is a Firman Auto Service invoice dated December 4, 2020, that states “clean up oil stains and check leaks”. A logical inference from this notation about cleaning up oil stains is that there was in fact a leak, at least in December 2020 and this is consistent with the fact that oil stains were observed in December 2020. On June 18, 2021, Mr. Tahseen had the car serviced by Hamid Auto Service.⁴ The invoice shows that work was done on the engine and a notation made: “no more oil leak on car”. Again, a reasonable inference being that there had been an oil leak prior to completion of the work. Mr. Tahseen continued to have the car checked by Hamid Auto Service because, in his words, MTCC 818 continued to complain about his car. Invoices from Hamid Auto Service dated June 24, July 20 and September 17 contain the notation “no leak under car”.

16On his inspection of P16 on September 29, 2021, Mr. Wroblewski noted that the previously reported spill had disappeared and instead the space was covered with some very fine powdery substance. There was some suggestion that a substance was applied by Ms. Mohammed, but the evidence on this point was unclear. A small fresh leak was visible. The areas previously covered with oil changed colour. By October 13, 2021, there were no new leaks.

17For the purposes of this case, based on the evidence before me, I find that the relevant period of time in relation to the issue of compliance with MTCC 818 rules is from April 2021 for the reasons noted in paragraphs 11 and 13 above. I also find that the vehicle was leaking oil based on the Hamid Auto Service invoice of July 18, 2021. When leaks continued to be noted by Mr. Wroblewski after that date, the evidence also shows that Mr. Tahseen had the car checked on several occasions. Inexplicably it seems, the leaks stopped appearing in October 2021. The evidence supports a conclusion that the Respondents attempted to determine the issue with the car and, though perhaps not as effectively as one would anticipate, it cannot be said that the Respondents wilfully disregarded the rules, as suggested by MTCC counsel. They also, in late September, appeared to try to clean the spot.

18So while there was a degree of compliance by the Respondents, I find that it was insufficient. Rule 53 required that the vehicle be fixed within 72 hours of notice being given (April 29, 2021) or moved, if there was a security or safety risk. Neither was done. But I note that while there appeared to be damage to the mastic layer, there was no evidence before me that this, or any other thing, created an actual or probable security or safety risk. Further, even if there was such a risk, the Rule 53 permitted MTCC 818 to have the vehicle towed which it did not do.

19The most relevant rule in this case is Rule 61 which states:

61. No owner shall permit his underground parking space to become coated with oil or grease. Any cleaning expenses incurred by the Corporation as a result of the contravention of this Rule shall forthwith be paid by the owner.

20The Respondents’ parking space was permitted to become coated with oil and the stains remain. Rule 61 presumes that cleaning will be done by the corporation. The Respondents refused to allow access to their parking spot to the Applicant for cleaning and repair⁵. I accept Mr. Thulasinathan’s evidence that without a proper cleaning of the parking spot and given in particular that there appears to be a crack in the mastic layer, repairs are necessary to ensure damage to the concrete slab underneath does not occur. On this point, the home inspection report⁶ submitted by the Respondents to the effect that there is no need for repair is not persuasive. The home inspector did not give evidence at this hearing nor is there any indication of his qualifications regarding assessment of parking garages and their structural integrity.

21I therefore conclude that the Respondents have not complied with Rule 61.

Issue no. 2: What orders should follow from the finding of noncompliance?

1. Access to the parking space

22I will address each of the orders sought below.

23MTCC seeks an order requiring the Respondents to provide access to the parking space for the purposes of repair upon the provision of at least three days’ notice. This is reasonable. The Respondents, in closing submissions, state that they do not object to the repair (though they do not agree that they are liable for the repair costs) as long as there is reasonable notice. I will order that a minimum of 72 hours’ notice be provided to the Respondents. I note that the Respondents have also submitted that the access is conditional upon the work being compliant with construction and property standards. Mr. Tahseen had previously denied access because of his belief that appropriate standards were not being followed. Through the course of this hearing, he now knows what work has been proposed and has previously seen the email from Mr. Thulasinathan to Mr. Wroblewski to the effect that the work does not require use of a propane torch or other hot tools and that no building permit is required. In order to ensure that there are no obstacles in the way of access, I will order that MTCC 818 provide, with its notice, a statement from Mr. Thulasinathan that the work proposed is being carried out in accordance with any and all permit requirements.

24I note here that on the issue of access, the Respondent has a clear legal right of access, pursuant to both article 3.02 of the Declaration and s. 19 of the Act. Section 19 states that upon reasonable notice, the corporation or a person authorized by it may enter a part of the common elements of which an owner has exclusive use at any reasonable time to perform the objects and duties of the corporation. So while I will make an order, as requested by MTCC 818, specifically addressing its access to PI6 for the purposes of the cleaning/repair, it is clearly required of the Respondents that they provide access pursuant to the Act and the Declaration. It is also clearly understood that the corporation in carrying out these obligations is also already under an obligation to do so in accordance with all applicable government regulations pursuant to its statutory duties. Therefore, the order is made, on the terms set out, in an attempt to ensure that MTCC 818 will be able to carry out the necessary cleaning and repairs without further incident or objection.

2. Reimbursement of the cost of cleaning/repair

25Regarding the cost of the repair, MTCC 818 states that it intends to proceed with repairs as outlined in a quote received from Villarense Waterproofing dated June 9, 2021 at a cost of $1808.⁷ Mr. Wroblweski testified that this company is already on site doing repair work to the parking garage, both concrete and waterproofing, as well as rehabilitation of the slab between P1 and P2, I accept Mr. Thulasinathan’s evidence that he has reviewed this quote and found it to be reasonable.

26Pursuant to Rule 61 and Article 12.01 of the by-laws⁸, this is a cost which the corporation is incurring as a result of the acts or omissions of the Respondents therefore the Respondents shall indemnify MTCC 818 for an amount no greater than $1808, except to the extent that this cost is insured against by the corporation. This order is made under s.144(1)3 of the Act because, despite the submissions of MTC 818’s counsel, it is unclear that there is authority to add this amount to the common expense obligations of the Respondents solely based on the cited provision of the by-law or the cited provisions of the rules.

3. Costs incurred to secure compliance

27MTCC 818 is seeking reimbursement of the engineering costs incurred in June 2021 in the amount of $452 because, it submits, his advice was necessitated by the Respondents’ refusal to permit access to the common elements parking space due to their assertion that a building permit was required to effect repairs. I have reviewed the email dated June 7, 2021 from Mr. Thulasinathan to Mr. Wroblewski together with the invoice attached⁹. I am not persuaded, based on the evidence before me, that the consultation and the resulting cost incurred was either necessary or reasonable, especially in light of the corporation’s right of access set out in the Act and in article 3.02 of the Declaration. He may have provided useful information, but that is not a cost that the Respondents should be required to pay. Further, MTCC 818 does not appear to have taken further action based on that information; indeed, Mr. Thulasinathan recommends that they consult with their lawyer. No letter to the Respondents from counsel appears to have been sent as a result of the engineer’s advice, though this application was filed on June 15, 2021. No order shall be made for reimbursement of this expense.

28MTCC 818 is also seeking reimbursement of legal costs incurred in seeking compliance prior to this application, for the period of April 26 to June 15, 2021 for a total of $2,007.61. In counsel’s letters to the Respondents, she cites both article 12.01 of the bylaw and the preamble to the rules which states:

Any loss, cost or damage incurred by MTCC #818 by reason of the noncompliance by any owner of any rule in force from time to time may be recovered by MTCC #818 against such owner in the same manner as common expense arrears or by such other legal proceedings as may be proper.

29I agree with Ms. Kisiel’s submission that it is not fair that other owners subsidize the costs of enforcing compliance which results from unwarranted conduct by another owner; however, it is also well settled law that condominium corporations must act reasonably and judiciously when incurring legal and compliance costs. With respect to the first invoice dated May 17, 2021 in the amount of $622.43, it is not clear why the letter April 29, 2021 was necessary. The Respondents were not sent a warning letter from MTCC 818 as appears to be the standard practice. There had been no issues between December 2020, when the problem was rectified after a warning letter was sent, and April 2021. MTCC 818 chose to escalate the issue at that point with a legal letter and coincidentally, it submits, a second legal letter was sent on the same date unrelated to the parking space issue. I do not find that this legal cost was reasonably incurred.

30The balance of the legal fees claimed as a compliance cost is $1385.18 for the period of May 4 to June 15, 2021. As the evidence shows, the Respondents, though they did make attempts to determine if their car was leaking, did not properly respond to the corporation’s requests that it be granted access to clean the parking spot as required by the rules. At this point, MTCC 818 did have cause for concern about the impact on the parking surface from the oil spots. Though I do have some concern that MTCC 818 could have, pursuant to s. 19 of the Act and article 3.02 of the Declaration, carried out the work during that time period, I find that these legal costs were reasonably incurred and order reimbursement by the Respondents.

4. Costs of this proceeding

31MTCC 818 is claiming its legal costs of $14,156.09 and the engineer’s fees of $791 for site visits in September and October 2021 to review the parking garage and trench drain repairs and $904 to prepare his witness statement and prepare for and attend at the cross examination (oral cross examinations of the witnesses took place by videoconference on November 22, 2021). With respect to the engineer’s fees, these are denied. Not only is this claim is not grounded in the Tribunal’s Rules of Practice, it would be highly unusual to require a party to pay the other party’s witness fees in a case before the Tribunal, not to mention the fact that there is no rationale for the site visits to review the parking garage and trench drain repairs (a matter unrelated to the issues before me) in the context of this case.

32Regarding the legal costs claimed, the authority of the Tribunal to make orders for costs is set out in s. 1.44 of the Act. Section 1.44(1)4 states that the Tribunal may make “an order directing a party to the proceeding to pay the costs of another party to the proceeding.” Section 1.44(2) states that an order for costs “shall be determined…in accordance with the rules of the Tribunal.” The Tribunal’s Rules of Practice effective September 21, 2020 were those in effect when this case was heard and therefore the rule numbers referenced are those in effect at that time. They address the costs related to the use of the Tribunal as follows:

45.1 The CAT may order a User to pay to another User or the CAT any reasonable expenses or other costs related to the use of the CAT, including:

a) any fees paid to the CAT by the other User;

b) another User’s expenses or other costs that were directly related to this other User’s participation in the Case; and,

45.2 If a Case is not resolved by Settlement Agreement or Consent Order and a CAT Member makes a final Decision, the unsuccessful User will be required to pay the successful User’s CAT fees and reasonable dispute-related expenses, unless the CAT member decides otherwise. This does not include legal fees.

46.1 The CAT will not order a User to pay to another User any fees charged by that User’s lawyer or paralegal, unless there are exceptional reasons to do so.

33In accordance with Rule 45.2 of the Tribunal’s Rules of Practice, I will order reimbursement of the $200 Tribunal fee. With respect to the legal fees of approximately $14000, I must determine if there are exceptional reasons to order them. MTCC 818 counsel has referred me to the case of Peel Condominium Corporation No.96 v. Psofimis, 2021 ONCAT 48 in which the Tribunal awarded the condominium corporation its full legal costs in the amount of $3926.75. In that case, when determining that there were exceptional reasons for awarding legal costs, the Tribunal considered the fact that for a period of three years the respondent had deliberately and consciously defied the corporation’s rules. He blatantly breached an agreement with the corporation and showed a lack of good faith throughout. The circumstances of that case bear little similarity to this one. In this case, the noncompliance complained of occurred over a period of six months. I cannot conclude based on the evidence that there was a persistent refusal to comply with the rules which would comprise an exceptional reason to award legal costs. The Respondents did not ignore the attempts to secure compliance: the evidence shows they at least tried to fix the car and while they may not have agreed with MTCC 818’s assessment of what was required by way of repair, they had some reasonable basis to question given that the evidence also shows that there were ongoing and persistent issues throughout the parking garage.

34Further, I note that there are some circumstances in which the Tribunal might find that the conduct of a party in the proceedings warranted recovery of costs (though rarely is full indemnity for legal costs awarded), this is not such a circumstance. The Respondents and their representative followed directions and acted reasonably throughout. No exceptionality can be found to warrant an order to pay legal costs. It was apparent through this case that the ill will between the parties likely played a role in the escalation of the dispute and this may have caused MTCC to pursue this application rather than address the issue as it could have done under s. 19 of the Act and article 3.02 of the Declaration. It is indeed unfortunate for all concerned that significant costs were incurred by MTCC 818 in this case, but I find no basis for an order for costs pursuant to Rule 46.1.

D. CONCLUSION

35In summary, I have concluded that the Respondents have not complied with the corporation’s governing documents and they must provide access to the parking spot to allow cleaning and repairs to be completed. In accordance with s. 1.44(1)3 of the Act, I am ordering the Respondents to indemnify MTCC 818 for $1385.18 in legal fees and upon completion of the work by Villarense Waterproofing and provision of an invoice an amount no greater than $1808, and pursuant to s. 1.44(1)4 and Rule 45 of the Tribunal’s Rules of Practice the Respondents shall reimburse MTCC 818 for its $200 paid for Tribunal fees.

E. ORDER

36The Tribunal orders that:

1. Pursuant to s. 1.44(1)7 of the Act, the Respondents shall allow access to their parking space (P16) for its cleaning and repair, upon provision of a minimum of 72 hours notice by MTCC 818. The notice is to include a confirmation in writing that the proposed work is being carried out in accordance with any and all permit requirements.

2. Pursuant to s.1.44(1)3 of the Act, within 30 days of the date on which they are provided an invoice for the cleaning and repair of their parking spot, the Respondents shall reimburse MTCC 818 an amount not to exceed $1808.

3. Also pursuant to s. 1.44(1)3 of the Act, within 30 days of this Order, the Respondents shall pay MTCC 818 compensation in the amount of $1385.16 in respect of legal fees and expenses it incurred.

4. Within 30 days of this Order, in accordance with s. 1.44(1)4 of the Act and Rule 45 of the Tribunal’s Rules of Practice, the Respondents shall pay $200 to MTCC 818 for its costs in this matter.

Patricia McQuaid

Member, Condominium Authority Tribunal

Footnotes

1. 1Exhibit 21
2. 2As per the evidence of Mr. Thulasinathan , the mastic topping on the concrete parking surface provides a waterproof layer which prevents water and salt from penetrating into the reinforced concrete floor slab.
3. 3Exhibit 14 - letter dated April 29, 2021
4. 4Exhibit 20
5. 5On this point, article 3.02 of the Declaration states that the Corporation …or any other person authorized by the Board shall be entitled to enter into any unit or any part of the common elements over which an owner has the exclusive use, at all reasonable times and upon giving reasonable notice, to perform the objectives and duties of the corporation…for the purposes of making repairs and remedying any condition which might result in damage to the property.
6. 6Exhibit 11
7. 7Exhibit 19
8. 8Article 12.01 states: Each owner shall indemnify and save harmless the corporation from and against any loss, costs, damage, injury or liability whatsoever which the Corporation may suffer of incur resulting from or caused by an act omission of such owner…to or with respect to the common elements and/or all units, except for any loss, costs, damages, injury or liability caused by an insured (as defined in any policy or policies of insurance) and insured against by the Corporation.
9. 9Exhibit 15
10. 102021 ONCAT 48