CONDOMINIUM AUTHORITY TRIBUNAL
DATE: February 10, 2023 CASE: 2022-00254N
Order under section 1.44 of the Condominium Act, 1998.
Member: Michael Clifton, Vice-Chair
The Applicant, Toronto Standard Condominium Corporation No. 2804 Represented by Jonathan Miller, Counsel
The Respondents, Frank Micoli Represented by Adelina Micoli, Agent
Ilan Philosophe Represented by Jonathan Roth, Counsel
Hearing: Written Online Hearing – October 25, 2022 to January 19, 2023
REASONS FOR DECISION
A. INTRODUCTION
1The Respondent, Ilan Philosophe, is the tenant of a unit in the Applicant condominium corporation. The unit is owned by the Respondent, Frank Micoli. Mr. Micoli and his representative, Adelina Micoli, barely participated in these proceedings.
2The Applicant provided evidence of several complaints from other residents of the condominium, and numerous incident reports filed by security staff at the condominium, pertaining to Mr. Philosophe and another resident of the unit identified as Ms. Caroline Hermann. The issues ranged from the nuisance or annoyance of objects being left in the hallway, disruption or annoyance of staff, breach of various rules or standards relating to handling of condominium property, non-compliance with the condominium’s COVID-19 regulations, to frequent, significantly noisy incidents both in their unit and on the common elements that were serious enough to cause significant concern amongst their neighbours.
3The provisions of the condominium’s governing documents that the Applicant states pertain to the incidents in this case are sections 16(a) and 16(b) of the declaration, and Rule 6 of the rules, which read as follows:
Declaration, Section 16(a)
No Unit shall be occupied or used by any one in such a manner as is likely to damage the property or that will unreasonably interfere with the use or enjoyment by other Owners of the common elements and the other Units or that may result in the cancellation or threat of cancellation of any policy of insurance referred to in the Declaration or in such a manner as to lead to a breach by any Owner or by the Corporation of any provision of any easements or rights registered against the property or any zoning by-law respecting such Units or any provision of the Easement and Cost Sharing Agreement. In the event the use made by any Owner of his Unit results in any premiums of any insurance policy insuring the interest of the Corporation being increased or cancelled, such Owner shall be liable to pay to the Corporation all of such increase in premiums payable as a result thereof, or shall be liable to pay to the Corporation all other costs or expenses it incurs as a result thereof.
Declaration, Section 16(b)
The Owner of each Unit shall comply, and shall require all residents, tenants, invitees and licensees of his Unit to comply with the Act, the Declaration, the by-laws, the Rules, the Easement and Cost Sharing Agreement and any rights and easements registered against the property.
Rule 6
Owners, their families, guests, tenants, invitees, licensees, visitors and servants shall not create or permit the creation of or continuation of any noise or nuisance which, in the opinion of the board or the manager, may or does disturb the comfort or quiet enjoyment of the units or common elements by other owners, their families, tenants, invitees, licensees, guests, visitors, servants and persons having business with them.
4The evidence of the Applicant relating to Mr. Philosophe’s violation of these provisions is credible, consistent, and fulsome. Mr. Philosophe’s counsel raised objections to some of the Applicant’s evidence, but such concerns were not sufficient to prevent my reaching the conclusion that Mr. Philosophe and his co-resident, Ms. Hermann, are a highly disruptive presence in the condominium, causing nuisances that unreasonably interfere with and disturb the comfort or quiet enjoyment of other residents and the condominium’s staff.
5The Applicant also cites the duty of the Respondent, Mr. Micoli, to indemnify it under sections 9 and 29 of the declaration, which state, respectively,
Each Owner shall pay to the Corporation his proportionate share of the common expenses, and the assessment and collection of the contributions toward the common expenses may be regulated by the board pursuant to the by-laws of the Corporation. In addition to the foregoing, any losses, costs or damages incurred by the Corporation by reason of a breach of any Rules and by-laws of the Corporation in force from time to time by any Owner, or by members of his family and/or their respective tenants, invitees or licensees, shall be borne and paid for by such Owner, and may be recovered by the Corporation against such Owner in the same manner as common expenses.
and
Each Owner shall indemnify and save the Corporation harmless from any loss, costs, damage, injury or liability which the Corporation may suffer or incur resulting from or caused by any act or omission of such Owner, or any resident, tenant, invitee or licensee of his Unit, to or with respect to the common elements or to any Unit or any part of the Building, except for any loss, costs, damage, injury or liability insured against by the Corporation and for which insurance proceeds are in fact payable. Each Owner shall also indemnify and save the Corporation harmless from any loss, costs, damage, injury or liability which the Corporation may suffer by reason of any breach of any Rules or by-laws in force from time to time by any Owner, his family, guests, tenants, licensees, invitees, customers or occupants of his Unit. All payments to be made by any Owner pursuant to this Section are deemed to be additional contributions toward the common expenses payable by such Owner, and are allocated and recoverable as such.
6Mr. Philosophe says that he intends to vacate the unit in the near future