Niagara North Condominium Corporation No. 6 v. Temideo, 2017 ONSC 897

CITATION: NNCC No. 6 v. Temideo, 2017 ONSC 897

COURT FILE NO.: 56107/15

DATE: 2017/02/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Niagara North Condominium Corporation No. 6

Applicant

– and –

Jean Temedio and Kimberly Watson and Robert James, by his litigation guardian, Jean Temedio

Respondents

Eric Savas, for the Applicant

Kristi J. Collins, for the Respondents Jean Temedio and Robert James

Monique Atherton, for the Respondent,Kimberly Watson

HEARD: November 15 and 16, 2016

the honourable mr. justice G. E. taylor

reasons for judgment

Introduction

1Jean Temedio is the owner of unit 511 in Niagara North Condominium Corporation No. 6. Jean Temedio leases unit 511 to Kimberly Watson who resides there with her 29 year old son, Robert James. Robert James is the grandson of Jean Temedio. Robert James suffers from health issues which result in him being unable to live independently. Jean Temedio bought unit 511 specifically so Robert James would have a home in which to live with his mother.

2During 2013 and 2014 and up to March 31, 2015, Kimberly Watson and Randall Dorion, the occupant of unit 411 in the Condominium, had an unfriendly relationship. Numerous complaints were received by the Condominium from Randall Dorion and others about loud noises and loud voices, including profanity, coming from unit 511. Kimberly Watson complained about noise and the smell of marijuana smoke coming from unit 411.

3In this application the Condominium seeks an order that Kimberly Watson permanently vacate unit 511 or alternatively that there be an order that she comply with the declaration, by-laws and rules of the Condominium and in particular that she refrain from causing undue noise by shouting, dropping heavy objects on the floor of unit 511 and pounding on the walls of the unit.

4Jean Temedio has a separate application in which she seeks an order that a lien for legal costs registered against unit 511 be vacated.

The Evidence

5Jean Temedio purchased unit 511 in about May 2004. She leases the unit to Kimberly Watson. Robert James resides in unit 511 with his mother, Kimberly Watson. Robert James is an adult with disabilities and is not able to live independently.

6On August 6, 2014, Condominium passed a set of rules containing paragraph 15 which reads as follows:

Owners and their families, guests, visitors, tenants, servants and agents shall not create nor permit the creation 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 the other owners or their respective families, guests, visitors, tenants, servants and agents. In the event that the board determines in its sole discretion acting reasonably, that any noise is being transmitted to another unit and that such noise is an annoyance and or nuisance and or disruption (regardless of whether that unit is adjacent to or wherever situated in relation to the offending unit) then the owner of such unit shall of his or her expense takes such steps as shall be necessary to abate such noise to the satisfaction of the board. In the event the owner of such unit fails to abate the noise, the board shall take such steps as shall be necessary to abate the noise and the owner shall be liable to the Corporation for all expenses incurred by the Corporation in abating the noise, which expenses are to include reasonable solicitor’s fees on a solicitor and his/her own client basis.

7Prior to August 6, 2014 the applicable rule with respect to noise was as follows:

No owner, resident or guest shall do anything with any unit or within the common elements, including balconies and patios, that is noisy or offensive so as to interfere with the quiet enjoyment of the property by the owners, residents or guests.

8The Condominium sent a letter dated July 22, 2008 to Jean Temedio, which was copied to Kimberly Watson advising that the noise emanating from unit 511 was not acceptable.

9In the summer of 2008, Tammy Marquis, the Condominium property manager, observed Kimberly Watson shouting obscenities from the balcony of unit 511.

10In the spring of 2013, the owner of unit 411 in the Condominium, which is immediately below unit 511, began leasing the unit to Randall Dorion. Beginning in 2013, Tammy Marquis began receiving complaints from both Kimberly Watson and Randall Dorion about noise coming from the other person’s unit.

11Randall Dorion submitted a Request/Complaint Form dated October 15, 2013 complaining about noise from unit 511 at 12:30 a.m.. The board of the Condominium received a letter from the occupants of unit 509 complaining about the deliberate dropping of heavy objects on the floor of unit 511 causing noise and disruption on at least two nights. The letter also referred to the occupant of unit 511 yelling an expletive and repeatedly dropping heavy objects at 1:30 a.m..

12Tammy Marquis sent a letter to Kimberly Watson dated October 17, 2013 regarding the noise complaint made by Randall Dorion. That letter contained the following:

As there seems to be issues between the two of you, the Corporation will not take any further action in this regard. This is an issue between residents and it must be resolved between the two of you.

13Tammy Marquis sent a letter to Jean Temedio dated March 26, 2014 which was copied to Kimberly Watson. That letter referred to the ongoing dispute with Randall Dorion and advised that if further complaints were received the Condominium would begin the process to terminate the lease of Kimberly Watson.

14On April 1, 2014, the property manager of the Condominium received an email from the daughter of the person who resided in unit 411 with Randall Dorion. That email described excessive noise coming from unit 511 as a result of the dropping of heavy objects and yelling and cursing during the evening and after the occupants of unit 411 went to bed. The noise resumed at approximately 7:30 a.m..

15On April 26, 2014 the owner of unit 411 received an email from the occupants of unit 509 complaining about Kimberly Watson causing loud, alarming and frequent noise by dropping what sounded like a ten pin bowling ball on the floor and using expletives directed at Randall Dorion. The email described being woken up in the middle of the night by loud banging noises coming from unit 511. The email also reported Kimberly Watson screaming obscenities from her balcony at a truck driver who had driven onto the Condominium property at 6:30 a.m..

16On August 12, 2014, Randall Dorion submitted a Request/Complaint Form complaining about stomping noises on the ceiling of unit 411 coming from unit 511 and a female screaming obscenities at 12:30 a.m. on July 29, 2014.

17On September 19, 2014, Kimberly Watson confronted Randall Dorion and Susan Nielsen, one of the Condominium’s on-site superintendents in the lobby. She yelled and screamed at both Randall Dorion and Susan Nielsen using profane language. There were other residents in the lobby at the time including the children. This incident was captured on a security video which is unaccompanied by any audio recording.

18On or about March 9, 2015, the Condominium received two Request/Complaint Forms, one from the owner of unit 514 and the other from the tenant. Those documents contained complaints about loud swearing and slamming of doors occurring late at night in unit 511 and Kimberly Watson yelling obscenities outside of her unit after 11:00 p.m. on February 28, 2015.

19Randall Dorion vacated unit 411 at the end of March 2015. From April until August, 2015, no noise complaints were received about Kimberly Watson or unit 511.

20In September, 2015, Tammy Marquis received a verbal complaint from the owner of unit 514 about Kimberly Watson screaming obscenities from her balcony to Robert James while he was at the Condominium swimming pool.

21Since the service of the present application on Kimberly Watson and Jean Temedio, there have been no further complaints about noise emanating from unit 511.

Factual Finding

22Based on all of the evidence, I am satisfied that between the fall of 2013 and September 2015, Kimberly Watson was in violation of the rules of the Condominium by causing excessive noise by way of making loud banging noises inside unit 511 and by shouting and screaming obscenities both on the balcony of unit 511 and in the common areas of the Condominium.

23In making this finding I am not addressing the question of whether or not Randall Dorion was also in breach of the rules of the Condominium. That is not an issue which is necessary for me to decide. An owner or tenant of a condominium unit cannot justify their noncompliance with the rules as being in response to noncompliance by another owner or tenant.

Discussion

24The position of the Condominium, at least until the commencement of oral argument, on the application was that the sanction should be eviction of Kimberly Watson and Robert James as tenants of unit 511.

25In York Condominium Corporation No. 136 v. Roth, 2006 CanLII 29286, Perell J. described the remedy of a forced sale of a condominium unit as “draconian” (paragraph 8) and “extreme” (paragraph 20). Likewise, it is my view that an eviction order against a tenant is a draconian and extreme order which ought to be reserved for cases where there is an ongoing refusal to comply with the rules of the Condominium. Such an order is not an appropriate remedy, at this time, for the conduct which I have found was engaged in by Kimberly Watson.

26In my view, it is appropriate that there be an order requiring Kimberly Watson to comply with the rules of the Condominium and an order requiring Jean Temedio to take reasonable steps to ensure that Kimberly Watson does so. Accordingly there will be an order in accordance with paragraph 2 of the Notice of Application.

Costs

27Condominium living has many benefits. It also has obligations such as living in harmony with one’s neighbours. Boards of Directors of condominiums must recognize the rights and obligations of the unit owners.

28In this case, it is significant that commencing in August 2014, the position of the Condominium was that the appropriate remedy for the misconduct of Kimberly Watson was the termination of her tendency of unit 511. It is understandable that Jean Temedio and Kimberly Watson would vigorously oppose such an order. That said, it was not an appropriate reaction for Jean Temedio and Kimberly Watson to simply ignore the concerns of the Condominium.

29In my view, it is unfortunate that both sides to this dispute chose to adopt confrontational positions. It would have been far more appropriate had the Condominium simply approached Jean Temedio and Kimberly Watson requesting their assurance that, in the future, they would abide by the rules of the Condominium. I find it to be significant that, for the most part, the concern about noise emanating from unit 511 had abated after Randall Dorion moved out of unit 411. On the other hand, as I have said, it was not appropriate for Jean Temedio and Kimberly Watson to simply ignore the concerns of the Condominium.

30On January 20, 2015, the Condominium registered a lean against unit 511 for legal fees incurred in relation to the subject matter of the present application in the total amount of $1,714.20. Jean Temedio seeks an order for the discharge of this lien.

31Pursuant to Article XIV of By-law No. 6 and rules 15 and 34 of the Condominium, a unit holder is responsible for expenses including legal expenses incurred for the purpose of securing compliance with the By-law and the rules. In my view, the lien registered against unit 511 arose out of the refusal on the part of Jean Temedio and Kimberly Watson to address the legitimate concern of the Condominium regarding unacceptable noise. Jean Temedio was advised in at least three letters that it was the intent of the Condominium to charge her unit with the legal fees incurred in securing compliance with the rules. I therefore am not prepared to vacate the lien as requested by Jean Temedio.

32However, I do not approve of the action of the Condominium in continuing to seek the extreme remedy of eviction of Kimberly Watson and Robert James as tenants of unit 511. A less heavy-handed approach might very well have avoided an application to the court. It was also open to the Condominium to apply to the court for an order requiring Jean Temedio and Kimberly Watson to comply with the rules.

33Therefore, although the Condominium was successful in obtaining an order in this proceeding, I have a discretion with respect costs. In fixing costs, I take into consideration the amount of the lien which has already been registered against unit 511. I therefore fix the costs of this application payable to the Condominium by Jean Temedio and the Kimberly Watson, jointly and severally, in the amount of $2,500 inclusive of disbursements and HST. This amount shall be charged to the common element expenses of unit 511.

G. E. Taylor