Court File and Parties
CITATION: Hackman v. TSCC No. 1978, 2023 ONSC 5566
DIVISIONAL COURT FILE NO.: 150/23
DATE: 2023 10 04
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Cody Hackman, Appellant
AND:
TORONTO STANDARD CONDOMINIUM CORPORATION No. 1978, Respondent
BEFORE: Matheson, Emery and Nishikawa JJ.
COUNSEL: R. MacGregor, for the Appellant
N. Polis, for the Respondent
HEARD at Toronto: September 25, 2023, by video-conference
ENDORSEMENT
[1] The Appellant Cody Hackman owns a condominium unit in Toronto Standard Condominium Corporation No. 1978 (“TSCC 1978”) in Toronto. The building was at one time a factory that has been converted to loft condominiums. The building has 218 units, and Mr. Hackman purchased his unit in 2021.
[2] As a result of complaints about noise caused by Mr. Hackman and guests in his unit, TSCC 1978 brought an earlier application to the Condominium Authority Tribunal (CAT) under s. 1.47 of the Condominium Act 1998, S.O. c.19 (the “Act”). The earlier application was resolved when Mr. Hackman and TSCC 1978 entered a settlement agreement under which Mr. Hackman agreed to comply with the condominium declaration, by-laws and rules of TSCC 1978, and to ensure the compliance of any guest or visitor. In particular, Mr. Hackman agreed to:
cease and desist from creating or permitting the creation of any excessive noise or nuisance which, in the opinion of the TSCC 1978's board (the "Board"), management or its service providers, including security/concierge, acting reasonably, may or will disturb the comfort and quiet enjoyment of other residents, owners or service providers of TSCC 1978.
[3] TSCC 1978 brought a second application alleging that Mr. Hackman continued to create or permit excessive noise from his unit after the date the first application was resolved. The second application was brought on the grounds that Mr. Hackman had breached the settlement agreement. At a procedural hearing before CAT member Bruce Cook, Mr. Hackman alleged that other unit owners were impacting him by the noise and odours they were causing in their units. Mr. Cook ruled that Mr. Hackman could combine those issues into the application TSCC 1978 was making against him as those issues were raised, in part, as a defence to his contravention of the settlement agreement.
[4] The hearing was conducted online between June 8 and November 28, 2022. The two main issues were:
a. Had Mr. Hackman contravened the settlement agreement by causing or allowing excessive noise from his unit?
b. Has Mr. Hackman experienced noise or odours coming from outside his unit that are unreasonable?
[5] For written reasons released on December 20, 2022, Mr. Cook released his decision. For those reasons, the CAT ordered that:
a. Mr. Hackman respect the comfort and quiet enjoyment of people living in other units and to ensure that he is not responsible for unreasonable noise or noise that is an annoyance, a nuisance, or disruptive to others.
b. TSCC 1978 to investigate Mr. Hackman’s complaints about noise that he experiences in his unit. TSCC 1978 shall give reasonable notice of any investigation and shall provide him with the results of the investigation. The investigation shall be done within 60 days of the date of the decision, or over such longer period as the parties may mutually agree to.
c. Mr. Hackman to pay TSCC 1978 in the amounts of $62.50, representing half of the tribunal filing fees, and $7,726, representing half of TSCC 1978’s legal costs. Those amounts may be added as additional contributions to common expenses allocated to Mr. Hackman’s unit and recoverable on that basis if not paid within 30 days of the decision under section 20(g) of the declaration.
[6] Mr. Hackman has brought this appeal of the CAT decision under s. 1.46 of the Act, which permits appeals on questions of law. Otherwise, an order of the Tribunal is final and binding. The questions of law on the appeal were narrowed by Mr. Hackman’s counsel to these:
The inadequacy of Mr. Cook’s reasons for not ordering the board of TSCC 1978 to abide by the declaration, by-laws and rules; and
The failure of Mr. Cook to consider the Rules and Practice Direction for CAT when he awarded costs of the application to TSCC 1978.
[7] The standard of appellate review on a question of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, at para. 8.
1. Adequacy of reasons given
[8] The substance of Mr. Hackman’s appeal on the adequacy of reasons given by Mr. Cook concerns his defence to the claim that he breached the settlement agreement to live by the declaration, by-laws and rules of the corporation. What Mr. Hackman has done is in effect mounted a classic strategy of using an offence to defend that claim. In that offence, he alleged that TSCC No. 1978 and its directors caused him psychological harm by sending him notices, contrary to the rules against the corporation behaving in a rude or aggressive manner. Mr. Hackman submits that the CAT did not deal with this part of his defence or give adequate reasons for not doing so, giving rise to a question of law.
[9] The Tribunal did not err in concluding that it did not have jurisdiction to deal with Mr. Hackman’s complaints of harassment resulting in psychological injury. Section 1 of O. Reg. 179/17 defines the scope of disputes over which the CAT has jurisdiction. Pursuant to s. 1(1)(c.1) of the Regulation, the CAT has jurisdiction over a dispute with respect to s. 117(2) of the Act. However, under s. 1.36(4) of the Act, the CAT does not have jurisdiction over a dispute with respect to s. 117(1).
[10] On appeal, the Appellant submits that the CAT failed to give adequate reasons for declining to exercise its jurisdiction under s. 117(2) of the Act. However, it is clear the appellant relied on s. 117(1) when arguing before the CAT as opposed to s. 117(2). In the Appellant’s written submissions to the CAT, he stated that s. 117 prohibits any person from causing injury to persons or property of the corporation. Only subsection (1) refers to injury; subsection (2) does not. As a result, the Appellant did not specifically put forward s. 117(2) as a basis for the CAT to exercise jurisdiction over his complaints about harassment.
[11] The modern basis to consider the absence or insufficiency of reasons for a ruling or verdict as an error of law is found in R. v. Sheppard, 2002 SCC 26 and has been followed consistently by the appellate courts ever since. In R. v. R.E.M., 2008 SCC 51, the Supreme Court explained that reasons given by a court in Canada must enable the courts to perform the functions that reasons are expected to serve. This includes the sufficiency of reasons to explain the basis for the decision made, and to allow for meaningful appellate review. At that level, deficiencies of reasons can amount to an error of law: R. v. J.C., 2023 ONCA 101, at paras. 4 and 5. An appeal arises from the judgment itself, not the reasons given for the judgment rendered.
[12] There was no need for Mr. Cook to go further in his reasons than to identify that the CAT has no jurisdiction to hear complaints under s. 117(1) of the Act. The sufficiency of the reasons is measured by the succinctness of the correctness of his legal conclusion. That succinct conclusion is enough to provide the basis for the decision made, and to permit appellate review, as it has here.
2. The appeal of the costs award
[13] The CAT is given authority under its own rules to make orders as to costs, and in particular, under Rule 48.
[14] In our view, the findings of Mr. Cook in paragraph 69 of his reasons fit the case within the perimeters of conduct that empower the CAT to award costs. This is particularly so as Mr. Hackman was found by the CAT to have breached the settlement agreement, a finding he did not seek to have set aside on appeal. This finding made the Practice Direction about the failure of a party to follow or comply with a previous order or direction of the CAT and Mr. Hackman’s conduct relevant as to costs. Mr. Hackman cannot claim that he achieved success that would entitle him to costs against TSCC 1978 when the CAT simply ordered TSCC 1978 to carry out its obligation to investigate the sources of his complaints under s. 20(g) of Part 5 of the declaration. Mr. Cook has already reduced the amount TSCC 1978 claimed for costs by half to recognize the success Mr. Hackman did achieve.
[15] In any event, an award of costs is discretionary and based on the application of appropriate principles. No error of principle has been shown. The CAT’s award of costs to TSCC 1978 is not subject to appeal.
Conclusion and costs
[16] The appeal is dismissed. As the parties have agreed on costs, Toronto Standard Condominium Corporation No. 1978 is awarded costs fixed in the amount of $5,000, all inclusive, as the successful party. These costs are payable by Mr. Hackman within 30 days, after which they may be added to the common expenses allocated to his unit and recoverable on that basis.
Matheson J.
Emery J.
Nishikawa J.
Date: October 4, 2023