Mishibinijima v. Simcoe Condominium Corporation No. 60 et al., 2023 ONCAT 139

CONDOMINIUM AUTHORITY TRIBUNAL

DATE: October 2, 2023
CASE: 2023-00142N
Citation: Mishibinijima v. Simcoe Condominium Corporation No. 60 et al., 2023 ONCAT 139

Order under Rule 4 of the Condominium Authority Tribunal’s Rules of Practice.

Member: Jennifer Webster, Member

The Applicant: Steve Mishibinijima (Self-Represented)

The Respondents:
Simcoe Condominium Corporation No. 60
Represented by Maryann Barrie, Agent

Cynthia Norman (Self-Represented)

Dates of Written Submissions: August 13, 2023 to September 15, 2023

MOTION DECISION

A. INTRODUCTION

1Mr. Steve Mishibinijima (the “Applicant”) is the owner of a unit in Simcoe Condominium Corporation No. 60 (“SCC60”). He brought an application against SCC60 and the owner of the unit above his unit (the “Upper Unit”), alleging that unreasonable noise and vibration from the Upper Unit was interfering with his quiet enjoyment.

2At the outset of the hearing, I noted that one of the Respondents was identified by the unit number of the Upper Unit only. I raised a preliminary question about the notice provided to the owner of the Upper Unit, and I asked SCC60 to provide information about the owner to Tribunal staff so that they could contact the owner about this application. SCC60 identified to the Tribunal staff that the owner of the unit was Ms. Cynthia Norman. After Ms. Norman joined the case, both Respondents submitted that the application should be dismissed as untimely and due to the lack of notice to Ms. Norman.

3This decision addresses only the preliminary matters related to the notice provided to Ms. Norman and the timeliness of the application.

B. BACKGROUND

4The Applicant contacted the Tribunal about starting an application on March 9, 2023. The Tribunal approved his application on March 17, 2023.

5On July 12, 2023, the Applicant uploaded confirmation of the notices that he had delivered to the condominium corporation and the owner of the Upper Unit.

6The owner of the Upper Unit did not join the case, and the application proceeded to Stage 3—Tribunal Decision in accordance with Rule 28 of the Tribunal’s Rules of Practice (“the Rules”).

7At my request, the representative for SCC60 provided contact information for the owner of the Upper Unit to Tribunal staff. After Tribunal staff contacted Ms. Norman, she, joined the case on August 21, 2023.

8I held a case management meeting with the parties on August 28, 2023, to discuss the steps in the hearing process, the availability of Mediation-Adjudication under Rule 44 of the Tribunal’s Rules, and to answer the parties’ questions. In this meeting, Ms. Norman stated that she had sold the Upper Unit and that the closing date for the sale was September 18, 2023. She also confirmed that the first notice she had of the application was through a phone call from Tribunal staff on August 21, 2023.

9The parties agreed to the terms of a Mediation-Adjudication agreement in order to attempt to resolve the issues in dispute through mediation. I held a mediation meeting with parties on September 6, 2023, and, based on the discussions at this meeting, I drafted a settlement agreement for the parties’ review.

10The parties did not resolve the case through a settlement, and the case moved forward with a schedule for submission on the preliminary issues about notice to Ms. Norman and the timeliness of the application. At the same time, I provided a mediator’s proposed settlement to the parties to provide an opportunity to conclude a settlement in advance of the closing date for the sale of Ms. Norman’s unit. The parties did not agree to the terms of the mediator’s proposed settlement.

11The schedule for submissions on the preliminary issues ended on September 15, 2023, and all parties provided submissions on these issues.

C. ISSUES & ANALYSIS

12The preliminary issues may be summarized as follows:

1. Has the application been made within two years after the dispute arose, as required by section 1.36(6) of the Condominium Act, 1998 (the “Act”)?
2. If not, should the Tribunal exercise its discretion to extend the time, as per section 1.36(7) of the Act?
3. Did the Applicant provide Notice of Case to Cynthia Norman, as required by the Tribunal’s Rules? If Notice was not given, should the Tribunal allow the application to continue?

Issue 1: Has the application been made within two years after the dispute arose, as required by section 1.36(6) of the Act?

13Both Respondents submit that the application should be dismissed because it was filed after the expiry of the time limit set out in section 1.36(6) of the Act. In addition, SCC60 argues that the application is untimely because the issues relate to noise and vibration complaints that predate the expansion of the Tribunal’s jurisdiction effective January 1, 2022 to include complaints about noise and other nuisances.

14Section 1.36(6) of the Act provides that applications must be made to the Tribunal “within two years after the dispute to which the application relates arose.”

15The question then is when did the dispute arise. The Applicant described that he experienced noise from the Upper Unit after Ms. Norman’s tenant moved into the unit in July 2019. The Applicant also provided his correspondence with Mr. Chris Kegel, the president of the SCC60 board that dates from April 2020. In this correspondence, he identified a series of concerns to Mr. Kegel about the condominium manager, who was Mr. David Montgomery at the time. These concerns included that the Applicant advised Mr. Montgomery about noises from the Upper Unit coming through the subfloor and Mr. Montgomery had failed to take appropriate action in response to his complaints.

16Although it is clear that the Applicant’s issues with noise from the Upper Unit first arose in late 2019 and early 2020, it is also evident that the Applicant and SCC 60 continued to communicate about his noise complaints up to December 19, 2022.

17Section 117(2) of the Act prohibits the making of unreasonable noise and other prescribed nuisances. It reads as follows:

117(2) No person shall carry on an activity or permit an activity to be carried on in a unit, the common elements or the assets, if any of the corporation if the activity result in the creation of or continuation of,

(a) any unreasonable noise that is a nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation; or

(b) any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation.

18The obligation set out in section 117(2) of the Act is an ongoing statutory obligation and each new incident of unreasonable noise or other prescribed nuisance, annoyance or disruption is a new basis for a dispute. Therefore, the time limit under section 1.36(6) of the Act starts again with each new incident of unreasonable noise or other prescribed nuisance.

19I find that the Applicant continued to complain about his experience of unreasonable noise from the Upper Unit starting in 2019 and up to December 2022. The Applicant started the case with the Tribunal in March 2023, which is less than two years after December 2022. Therefore, I find that the application is timely pursuant to section 1.36(6) of the Act.

20I do not accept SCC60’s additional argument that the application is untimely on the basis that the Tribunal did not have jurisdiction over this type of complaint at the time the issues arose. The Tribunal’s jurisdiction was expanded to include complaints of noise and other nuisances effective January 1, 2022. Once the Tribunal’s jurisdiction included the issues raised by the Applicant, he could have made a timely application provided he met the requirement of section 1.36(6) of the Act to file within two years of the date the dispute arose.

Issue 2: If the application is not timely, should the Tribunal exercise its discretion to extend the time, as per section 1.36(7) of the Act?

21The Tribunal has the discretion to extend the time limit for filing an application, in accordance with section 1.36(7) of the Act which provides as follows:

(7) If a person does not make an application within the deadline mentioned in subsection (6), the Tribunal may extend the deadline for a time of no more than one additional year if the Tribunal is satisfied that the delay in not applying was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

22Given my conclusion that the application was filed within the two-year time limit of section 1.36(6), I do not have to consider whether to extend the deadline.

Issue 3: Did the Applicant provide Notice of Case to Cynthia Norman, as required by the Tribunal’s Rules? If Notice was not given, should the Tribunal allow the application to continue?

23When the Tribunal accepts an application, it provides a Notice of Case to an applicant with instructions about how to deliver the Notice to the respondent(s). The Notice of Case provides information to respondent(s) about how to join the Case in order to participate in Stages 1, 2, and 3.

24Under Rule 24.5, the Applicant was required to deliver the Notice of Case to the Respondents. Rule 20.1 sets out the manner in which documents may be delivered. In particular, Rule 20.1 specifies that, if the recipient of the document is a unit owner, the document may be delivered by one of the following methods:

(a) Personally giving it to:

o The unit owner; or,

o An adult occupant / resident of the unit who confirms that the unit owner is also an occupant / resident

(b) Sending it by regular mail to:

o The address for service for the unit owner, as shown in the record of owners and mortgagees that the condominium corporation is required to maintain under section 46.1 of the Condominium Act, 1998; or,

o The units address, if there is no address for service listed in the record or owners and mortgagees that the condominium corporation is required to maintain under section 46.1 of the Condominium Act, 1998.

25The Applicant stated that he delivered the required Notices to the unit owner of the Upper Unit by regular mail to the unit address.

26Ms. Norman confirmed that she has never lived in the Upper Unit and has always rented the unit to tenants. She also stated that she provided an address for service to the condominium corporation that was different from the unit address. SCC60 confirmed that it had an address for service for Ms. Norman.

27The Applicant argues that he complied with the Tribunal’s Rules for delivering the Notice because he sent the Notice by regular mail through Canada Post. He challenges Ms. Norman’s statement that she did not receive the notice because he believes that she would have checked the unit’s mailbox during the relevant time period given that she was in the process of selling the unit. Moreover, he states that, due to alleged harassment from the SCC60 board members and the condominium manager, he was not able to obtain the service address for Ms. Norman. The Applicant submits that there should be no consequences for the manner in which he delivered the Notice because SCC60 received its notice, and, therefore, the condominium corporation had an obligation to notify Ms. Norman of the case.

28I find that the Applicant did not deliver the Notice to Ms. Norman as required by Rule 20.1. He was aware that the unit was occupied by tenants, and he made no inquiry as to whether Ms. Norman had an address for service other than the unit address, and he sent the Notice by regular mail to the unit address. I accept that Ms. Norman did not receive Notice of this case until the Tribunal staff contacted her, at my request, on August 21, 2023. Although the Applicant argues that SCC60 should have notified Ms. Norman of the case, it is not its responsibility to do so. Rather, it was the Applicant’s responsibility to deliver the Notice of Case and he did not do so.

29SCC60 and Ms. Norman submit that I should dismiss the case pursuant to Rule 20.4 because the Applicant did not serve Notice to Ms. Norman in accordance with the Rules. Rule 20.4 reads as follows:

If a Party fails to deliver a paper document as required, the CAT may:

(a) Proceed with the Case if satisfied there will be no prejudice to the Party entitled to receipt of the document;

(b) Adjourn the Case; or,

(c) Dismiss the Case or request.

30Ms. Norman did not join the case until August 21, 2023, because she did not receive Notice of the Case as required by the Rules. The Tribunal moved the case to Stage 3 for a hearing without engaging in a mediation in Stage 2 because Ms. Norman did not join the case. I conclude that any prejudice suffered by Ms. Norman from the late notice was addressed through the mediation-adjudication process that occurred at the outset of this hearing. Therefore, I would allow the case to proceed.

D. CONCLUSION

31I accept the application as timely and I allow the application to proceed despite the issues with the delivery of the Notice of Case to Ms. Norman.

Jennifer Webster

Member, Condominium Authority Tribunal