COURT FILE NO.: CV-22-674872 DATE: 20220314 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 1260 Applicant – and – SABITA SINGH, SEAN BROWN and PATRYCJA SIAREK Respondents
Counsel: John De Vellis, for the Applicant Stephen M. Werbowyj, for Sabita Singh Sean Brown, representing himself and aided by his agent Carlo Gazzé
HEARD: March 11, 2022
FL Myers J:
Reasons for Decision
The Parties
[1] The applicant is a residential condominium corporation located at 250 Manitoba Street in Toronto.
[2] The respondent Sabita Singh owns unit No. 528 in the condominium.
[3] The respondents Sean Brown and Patrycja Siarek are tenants of Ms. Singh and occupy her unit.
[4] The tenants Mr. Brown and Ms. Siarek keep two American Pocket Bullies in the rental unit. In December, 2021, one of the dogs viciously attacked and injured a resident of the building and her own dog.
[5] The dogs are referred to by some witnesses as “pit bulls”. I prefer to refer to them by their breed as there is uncertainty and potentially prejudicial connotation associated with the inexact term “pit bull”.
The History of this Proceeding
[6] On January 10, 2022, the condominium corporation commenced an application for an urgent order requiring the tenants to keep their dogs muzzled and on leash in common areas. It asked ultimately for an order that the tenants permanently remove the dogs from the building because the manner in which the tenants handled the dogs made them a danger and likely to cause injury to other residents, staff, and visitors in the building.
[7] The tenants did not appear in Civil Practice Court on January 18, 2022. I was told that there had been problems getting the tenants to answer their door for service of process. At that time, I scheduled an urgent return of the application for January 28, 2022. My endorsement included the following note aimed at the tenants Mr. Brown and Ms. Siarek:
The respondents cannot ignore their legal obligations. The condominium corporation alleges that they have ignored the City’s order to keep the dogs muzzled in public areas. The matters alleged are serious and involve health and human safety. They also involve animal welfare. An urgent hearing is required to determine the facts and deal with an outcome.
I schedule an urgent hearing of this application on Friday January 28, 2022 for one hour. [Emphasis in original.]
[8] I also directed counsel to serve the tenants both by email and by taping the documents to the door to the unit.
[9] On January 28, 2022, the tenants did not appear at the hearing despite being served and provided with Zoom and telephone call-in details as directed.
[10] In my endorsement that day, I described the basic facts in evidence and held as follows:
The dogs kept by the tenants in the condominium unit have been labelled “dangerous” by the city. On December 4, 2021, one of the dogs was let off leash. It entered an elevator and attacked another resident and her dog causing serious injuries to both. The City ordered the dogs to be muzzled in public. I have seen the video evidence showing that the dogs have not been muzzled by the owners since then. Moreover, on December 30, 2021, one of the dogs again entered an elevator with no one holding the leash. There are several videos showing Ms. Siarek having to use her body weight to restrain one of the dogs from lunging at residents including a child. An incident of this type happened as recently as January 20, 2022 with this hearing in the offing.
The tenants have ignored repeated warnings and the City’s order. I find that they are causing a condition in the common elements that has and is likely to continue to cause an injury to a person in breach of s. 117 (1) of the act.
[11] I assessed the question of remedy as follows:
Efforts to engage the City’s by-law enforcement branch have been for naught. In addition the Landlord and Tenant Board adjourned the N7 (dangerous conditions) hearing for some months to require the condominium to adduce further evidence from its manager. The unit owner, Ms. Singh has taken all reasonable steps to enforce the tenants’ obligations to comply with the law and the condominium’s internal rules under s. 119 (2) of the act.
I am satisfied that an order is required that the tenants remove the dogs from the building and their unit right away. They have not behaved as responsible dog owners. They have advertised themselves as breeders which is also a violation of the condominium’s rules. They do not obey the Dangerous Dog order and they do not adequately protect the other residents from their dogs. They have allowed the dogs to wander the corridors unsupervised. It is clear from the videos that Ms Siarek has difficulty controlling them physically. The video of the attack on December 4, 2021 leaves no doubt as to the viscous conduct of which the dogs are capable. They should not be in a condominium with people and children with owners who are not willing or able to protect their neighbours.
[12] In the result, I ordered Mr. Brown and Ms. Siarek to remove the dogs from the unit and the building permanently by the end of day on January 31, 2022.
[13] My endorsement contained the following bolded terms to emphasize the seriousness of the matter to Mr. Brown and Ms. Siarek:
If the respondents fail to remove the dogs as ordered, counsel may re-attend before me on 48 hours notice (by email and taping a notice to their unit door) to SEAN BROWN and PATRYCJA SIAREK for the purpose of considering whether to terminate their tenancy.
SEAN BROWN and PATRYCJA SIAREK ARE WARNED AND ON NOTICE THAT THEY ARE AT REAL RISK OF BEING EVICTED FROM THE CONDOMINIUM IF THEY DO NOT REMOVE THEIR DOGS RIGHT AWAY AS ORDERE D.
This endorsement is effective immediately regardless of when a formal order is signed.
[14] Mr. Brown and Ms. Siarek did not remove the dogs by January 31, 2022.
[15] On February 2, 2022, I heard a case conference to schedule a motion to evict the tenants. Once again, Mr. Brown and Ms. Siarek did not participate despite receiving notice.
[16] At the case conference, much to the chagrin of the applicant and Ms. Singh, I deferred the return of the hearing to February 11, 2022. I did so expressly to allow the Sheriff a few days in which to enforce the order removing the dogs from the unit.
[17] My endorsement from that case conference contains the following terms once again to try to bring home the seriousness of the proceedings to the tenants:
This is a very serious matter.
THE RESPONDENTS SEAN BROWN AND PATRYCJA SIAREK NEED LEGAL ADVICE URGENTLY. THEY SHOULD SPEAK TO A LAWYER IMMEDIATELY TO UNDERSTAND THEIR OBLIGATIONS AND THEIR RIGHTS.
Ms. Singh seeks an order evicting Mr. Brown and Ms. Siarek from their rented condominium unit. If they wish to oppose the request they must participate in this proceeding. They can also deliver evidence and legal argument in writing in advance of the hearing date.
SEAN BROWN AND PATRYCJA SIAREK SHOULD NOT IGNORE THESE LEGAL PROCEEDINGS.
[18] In the endorsement I explained the written evidentiary process. I provided the URL for the court’s online filing system.
[19] At the end of the endorsement I reiterated:
SEAN BROWN and PATRYCJA SIAREK SHOULD UNDERSTAND THAT THESE LEGAL PROCEEDINGS ARE SERIOUS. THEIR DOGS HAVE BEEN ADJUDGED TO PRESENT A RISK OF INJURY TO PEOPLE. THEY MUST BE REMOVED FROM THE BUILDING. IF MR. BROWN AND MS. SIAREK DO NOT COMPLY AND THE OTHER PARTIES ARE UNABLE TO HAVE THE GOVERNMENT ENFORCE THE COURT’S ORDER, THERE IS A REAL ISSUE AS TO WHETHER THE TENANTS SHOULD BE EVICTED.
The tenants ignore these proceedings at their own risk. They did not participate in the case conference this morning despite the court having provided them with notice and participation details.
[20] On February 10, 2022, the Sheriff attended and removed the dogs assisted by municipal Animal Control officers. However, as the dogs had not been ordered confiscated, they gave the dogs to Ms. Siarek who left with them. Mr. Brown was verbally abusive to the Sheriff’s officer and threatened to find out where the officer’s children go to school. He also threatened to buy more dogs and to unleash them on the building residents.
[21] Mr. Brown and Ms. Siarek did not attend the hearing on February 11, 2022. I held that since the dogs had been removed, the tenants were not then in breach of the January 28, 2022 order. Absent a subsisting breach, as I will discuss below, under s. 134 (4) of the Condominium Act, 1998, SO 1998, c 19, no eviction order was available.
[22] In my endorsement of February 11, 2022, I dealt with Mr. Brown’s threat to the building manager to bring other dogs into the unit as follows:
There is evidence that Mr. Brown made threats to the Sheriff’s officers yesterday during the eviction. They are capable of calling the police if they fear a breach of the peace or for their safety. Mr. Kaja, the property manager, was present with the Sheriff’s officers and he quotes Mr. Brown as follows:
Also, Mr. Brown told me that he would to go [sic] the breeder, get the two loudest German shepherds that he could find and let them loose in the building's hallways.
There has been evidence throughout of the tenants allowing their dogs to roam the halls unattended. Other unit owners have intervened and are frightened. In my view, this is not a hollow threat. Mr. Brown and Ms. Siarek have shown themselves to be irresponsible dog owners and incapable of managing pets in a manner suited for communal occupation and use of the common elements of the condominium. The threat to bring different threatening animals onto the premises needs to be prevented from coming to fruition. Moreover, it would be all too easy for the tenants to bring the two dangerous dogs back and claim that they were new or different animals. This new threat is a further violation of s. 117 (1) of the statute and a threat to both people and property. In my view, it is just and equitable under s. 134 (3) therefore to prohibit Sean Brown and Patricja Siarek from keeping any dog or dogs in their rented condominium unit without leave of the court.
[23] Unfortunately, that did not end the matter. At Ms. Singh’s request, I convened a case conference on March 8, 2022. The tenants did not participate despite being provided with notice. Ms. Singh asked me to schedule a further order to evict the tenants on the basis that they had brought their two dangerous dogs back into the rental unit.
[24] In my endorsement of March 8, 2022, I scheduled the hearing of the urgent motion for March 11, 2022. My endorsement included the following terms to try again to ensure that Ms. Brown and Ms. Siarek received fair notice of what was proposed at the hearing:
Ms. Singh the unit owner alleges that the tenants have allowed the two dogs to return to their unit after being removed by the Sheriff. I have not seen the affidavits as yet. If proven by admissible and credible evidence, then this would represent a very serious breach of the order made January 28, 2022.
Ms. Singh shall serve her motion record and a copy of this endorsement by email and by taping an envelope containing the material to the unit door. The external envelope should contain the following words in large, bold type:
SEAN BROWN and PATRYCJA SIAREK TAKE NOTICE:
A COURT HEARING IS SCHEDULED FOR MARCH 11, 2022 AT 10:00 A.M. BY ZOOM OR TELEPHONE. THE COURT WILL BE ASKED TO EVICT YOU FROM UNIT #528 - 250 MANITOBA ST. FOR BREACH OF THE COURT’S ORDER DATED JANUARY 28, 2022.
YOU ARE WARNED THAT YOU MUST PARTICPATE IF YOU WANT TO OPPOSE AN ORDER FOR YOUR EVICTION.
[25] Mr. Brown appeared by Zoom at the hearing on March 11, 2022. He was also represented by Mr. Gazzé a licensed paralegal. I granted Mr. Gazzé leave to participate.
[26] Mr. Gazzé asked for an adjournment of the hearing because he needed time to review and digest all of the materials that Mr. Brown provided to him just 36 hours previously. He advised that it would be Mr. Brown’s position that there are no dogs in the condominium unit. Therefore, he submitted that no interim terms to protect residents were needed during the period of any adjournment.
[27] For oral reasons given during the hearing I refused the request to adjourn. In essence, I held that the determination had already been made that the presence of the dogs in the unit amounts to a risk of injury to people in breach of s. 117 (1) of the statute. There were just two issues for the hearing:
a. Are there dogs present in the unit; and
b. If so, should an order be granted evicting the tenants or might other relief suffice?
[28] In my view it was not in the interests of justice to adjourn for Mr. Gazzé to spend time learning the entire history of the proceedings. Prior issues were no longer extant. The issues currently before the court were very straightforward factually. Moreover, if the tenants had brought their dogs back, then there was urgency because the manner in which these tenants had kept their dogs presented a real risk of injury to others.
[29] Therefore, I refused the adjournment request. However, as I had clearly encouraged the tenants to attend to defend themselves from the relief sought, I offered Mr. Brown the opportunity to give evidence under oath so he could deny that the dogs were present and undergo cross-examination if he wished to do so. I offered a two hour adjournment so Mr. Brown and Mr. Gazzé could prepare.
[30] After speaking privately with Mr. Brown, Mr. Gazzé advised that Mr. Brown did not wish to testify.
[31] The parties’ submissions ensued. I heard from both Mr. Brown and Mr. Gazzé.
The Facts
[32] Ms. Singh and her husband inspected the premises on February 22 and 28, 2022. There is video and photographic evidence from the inspections that is properly tendered and admissible. No dogs were present in the unit during either inspection. But there was a dog cage, a full water bowl, another dog bowl with dog food in it, and there were pee pads spread on the floor throughout the unit. There were dog droppings on the balcony. Significantly the droppings were not the same on the 28th as they were on the 22nd. That means that the older droppings had been removed and new droppings had been left between February 22 and 28, 2022.
[33] In addition, there is evidence of the dogs being seen adduced by proper information and belief testimony. I do not admit a different anonymous affidavit tendered on the same point. The hearsay evidence is admissible however. It would not have had much weight if Mr. Brown or Ms. Siarek had denied the evidence and made the fact contentious. However, they chose not to do so.
[34] There is also evidence of the ground floor resident whose unit is directly below unit 528. She testified that a bag full of dog excrement had been dropped onto her patio and exploded. There are no other balconies between the tenant’s unit and this neighbour.
[35] Mr. Gazzé submits that there is no evidence about the lifestyles of Mr. Brown and Ms. Siarek. He would have me speculate that in the month since the dogs were removed, Mr. Brown and Ms. Siarek never bothered to clean up their full dog bowls and pee pads. Mr. Gazzé also submits that the bag of excrement could have fallen from any unit.
[36] Mr. Gazzé has no argument however as to how dog droppings came onto the balcony of the unit between February 22 and 28, 2022. Even if the tenants did not clean their dog paraphernalia and left food in the bowl for a month after the dogs were removed by the Sheriff, how did fresh droppings get onto the balcony after February 22, 2022?
[37] In all, the inference that the dogs are back is irresistible. As the tenants had notice of the inspections, they had time to temporarily remove the dogs. But the active feeding stations, the pee pads, and the droppings on the balcony are facts from which an inference is readily drawn. Moreover, while it may be that anyone could have dropped a bag of dog excrement, there is no evidence that anyone else had a reason to save up and bag a large amount of dog excrement other than the tenants if they are hiding their dogs. Of course the hearsay sighting of the dogs is confirmatory as well.
[38] Although not necessary to this holding, I find Mr. Brown’s decision not to testify telling. Absent a denial in evidence, the uncontested evidence was compelling.
[39] I find as a fact, on a balance of probabilities, that it is more likely than not that the tenants Ms. Brown and Ms. Siarek are once again housing their dogs in their unit in breach of the January 28 and February 11, 2022 orders of the court.
Remedy
[40] Although landlord and tenant relations in Ontario are mostly governed by the Residential Tenancies Act, 2006, SO 2006, c 17, and proceedings before the Landlord and Tenant Board, there is some scope for orders affecting tenancies of condominium units under the Condominium Act, 1998.
[41] In this case, for example, I am not concerned with the unit owner’s allegation that the tenants are in arrears of rent. That is a matter for the board.
[42] This proceeding was brought by the condominium corporation under s. 134 of the Condominium Act, 1998. The section provides for the enforcement of the statute and the condominium’s declaration, by-laws and rules against, among others, a unit owner and occupants (i.e. tenants). I have already found that the tenants’ behaviour violated s. 117 (1) of the statute. They are therefore also in breach of the general obligation to observe the terms of the statute s. 119 (1) of the act.
[43] Section 134 (3) provides that in an enforcement proceeding, subject to subsection (4), the court may grant the order applied for and may grant “such other relief as is fair and equitable in the circumstances”.
[44] Subsection 134 (4) provides an important limitation on the court’s authority however. It says:
(4) The court shall not, under subsection (3), grant an order terminating a lease of a unit for residential purposes unless the court is satisfied that,
(a) the lessee is in contravention of an order that has been made under subsection (3);
[45] This subsection does two things. First, it confirms expressly that an order under s. 134 (3) can include an order terminating a residential lease of a unit. Second, it requires that a compliance order be made and that, before a tenant is evicted, the landlord must prove that the tenant is acting in contravention of the compliance order. In other words, before eviction can even be considered, residential tenants are given clear notice of the required behaviour and they are provided with time to comply.
[46] As noted above, on February 11, 2022, since the Sheriff had removed the dogs the prior day, I dismissed the request for an eviction order. There was no proof that the tenants were in contravention of the January 28, 2022 order that day.
[47] However, as I have now found that the tenants are once again housing the dogs in their unit, they are in breach of both the January 28, 2022 order and the February 11, 2022 order.
[48] Recently, the statute has been amended. The amendments are not yet proclaimed into force. When they become the law, subsection 134 (4) is to be deleted and a new s. 135.1 is to be added to the statute.
[49] The proposed new section 135.1 (1)(a) and (b) replace s. 134 (4) as follows:
135.1 (1) Despite subsections 134 (3) and 135 (3), the court shall not, under either of those subsections, make an order that requires a person to vacate a property permanently unless the court is satisfied that,
(a) the person is in contravention of subsection 117 (1) and poses a serious risk,
(i) to the health and safety of an individual, or
(ii) of damage to the property or the assets, if any, of the corporation;
(b) in respect of an order under subsection 134 (3), on the basis of the person’s acts of non-compliance,
(i) the person is unsuited for the communal occupation of the property or the communal use of the property, and
(ii) no other order will be adequate to enforce compliance;
[50] While these sections are not yet the law of Ontario, they represent important safeguards to ensure that residential tenancies and other occupation of condominium units are not interfered with except for the most serious of grounds. Under the proposed new law, a court will not be able to order a person to vacate a unit unless either the person violated s. 117 (1) and poses a risk to health and safety of an individual (or property of the corporation) or, if the person is not complying with the rules of the condominium, the court must be satisfied that the person is unsuited for communal living or communal use of property and that no other order will be adequate to enforce compliance.
[51] Mr. Gazzé submits that a hefty fine ought to be sufficient to enforce compliance with the condominium’s rules. I disagree. I know nothing of the tenants’ financial positions. The issues at play involve danger to people and pets. A fine risks being a license fee for future injurious conduct. Moreover, civil enforcement processes to collect a money judgment do not ameliorate the risk to people and pets presented by the behaviour of these tenants.
[52] Mr. Gazzé submitted that the tenants does not present a risk themselves. Their threats to the Sheriff’s officer were verbal. The police have been called to the unit recently due to alleged domestic altercations between the tenants that were heard by other residents. One time the Fire Department was called by Ms. Siarek apparently. On each occasion the police and firefighters left without entering the unit and without any charges being laid.
[53] Once again, in my view, these submissions miss the point. The thing that I found violated s. 117 (1) and creates a risk to the health of others is the manner in which the tenants handle their dogs. In this proceeding I am not considering noise complaints or the tenants’ domestic issues, if any.
[54] The issue here is that the tenants keep dogs that they do not train or control to avoid mauling people or others’ pets. The dogs have been labelled “dangerous” by the City. Yet the tenants have let the dogs roam the halls. I saw video of one dog entering an elevator with no one on the leash. Another time one of the dogs lunged at a child and Ms. Siarek was barely able to contain it. They refuse to muzzle the dogs in the hallways, elevators, and other common areas despite being ordered to do so by the City.
[55] If the new sections were in force, I would find them met. The risk of injury under s. 117 (1) of the statute is enough. I would also find however that the tenants have shown themselves by word and deed to be unfit for communal living and communal use of property.
[56] Mr. Werbowyj submitted that eviction is necessary to secure compliance with the court’s orders. He approached the tenants’ breaches of the court’s orders as an affront to the rule of law. However, this is not a motion to hold the tenants in contempt of court. The general need to vindicate the court’s authority is not at the forefront of this proceeding.
[57] In my view, the relevancy of the fact that the tenants have violated two orders is that the breaches weigh on the question of what other remedy could be appropriate in the circumstances. Simply making another order obviously will not have any effect on Mr. Brown or Ms. Siarek. As Mr. Brown purported to deny that he and Ms. Siarek had brought the dogs back (despite declining to actually give evidence to this effect), he could not propose any terms to protect others from a fact that he claimed was not proven.
[58] Moreover, I agree with Mr. De Vellis who submits that the tenants’ conduct in bringing the dogs back and trying to hide them and deny their conduct is deliberate deception and deliberate violation of the statute, the rules of the condominium corporation, and the court’s orders.
[59] In Carleton Condominium Corporation No. 348 v. Chevalier, 2014 ONSC 3859, Justice Beaudoin discussed the remedy of ordering someone to vacate a condominium. He wrote:
[22] It is evident that the Respondents have no intention of complying with previous court orders. I have been referred to and rely on the decision of B.P. O’Marra J. in York Condominium Corporation No. 301 v. James, 2014 ONSC 2638. In that case, the Applicant was seeking a vacating order and a forced sale of the condominium unit in that O’Marra J. referred to a number of decisions where the courts have granted such relief where it has been demonstrated that it was unsuited for communal living. He noted that the communal living requires the respect and consideration for one’s neighbors and socially acceptable behaviour.
[23] In this case, it is obvious that previous court orders have been insufficient to control the unacceptable and antisocial behaviour of the Respondents. Their actions have presented a series of health and safety issues for other residents, management, visitors and contractors at the Condominium Corporation. [Note omitted. Emphasis added.]
[60] Beaudoin J characterized the respondents before him as “ungovernable”. I adopt that characterization for Mr. Brown and Ms. Siarek. They do not conduct themselves in a socially acceptable way with due respect and consideration for their neighbours, staff, and other users of the common areas of the condominium. They place their own desire to handle their dogs as they wish above the rights of the other users of the condominium common areas to be safe from threats of attack and injury. How easy would it have been to simply muzzle the dogs in common areas? Instead Mr. Brown and Ms. Siarek repeatedly ignore others’ safety and security and take the risk that one or both dogs will attack. That only one person and pet have been seriously hurt is happenstance.
[61] I do not need to rule on whether the simple act of raising attack dogs in a condominium makes one unsuitable for communal living. The refusal to take the simplest of precautions, despite being ordered to do so by the City, and then deliberately ignoring two orders of the court, convinces me that the tenants are unsuited for communal living and communal use of property. Moreover, there is no other remedy short of ordering the tenants to vacate the unit that will ameliorate the ongoing risk of injury to others or to enforce the condominium’s rules.
[62] Under s. 134 (4) of the Condominium Act, 1998, I find that the tenants are in contravention of the orders made under s. 134 (3) on January 28 and February 11, 2022. It is just and equitable that their lease with Ms. Singh be terminated and that they be ordered to vacate the premises.
Order
[63] This court orders that the tenancy of the respondents, Sean Brown and Patrycja Siarek at the premises of the condominium unit being Unit 27, Level 5 of Metropolitan Toronto Condominium Plan No. 1260, and known municipally as Suite 528 - 250 Manitoba St., Toronto, ON M8Y 4G8, is hereby terminated effective 12:01 a.m. EDT on March 28, 2022.
[64] This court orders that leave is granted to the applicant and Sabita Singh to have a writ of possession for the condominium unit described in the preceding paragraph issued immediately provided that the writ is not enforceable by the Sheriff before 8:00 a.m. EDT on March 28, 2022.
[65] This court orders that the Sheriff is directed to and shall, upon request by either the Condominium or Ms. Singh (or their respective lawyers), assist with the enforcement of this order forthwith and on an expedited basis on or after March 28, 2022. If requested by the Sheriff, the Toronto Police Service and Toronto Animal Services, including Toronto Animal Services' Enforcement and Mobile Response Unit, shall assist the Sheriff with the enforcement of this order. Ms. Singh may also privately engage animal control professionals and/or a bailiff to assist the Sheriff.
[66] This court orders that the applicant and Ms. Singh may deliver costs submissions by March 21, 2022. Mr. Brown and Ms. Siarek may deliver costs submission by March 28, 2022. Costs submissions may be no longer than three pages double spaced. Cost Outlines shall also be delivered by any party that files submissions. All materials for costs shall be filed through the Civil Submissions Online portal and uploaded to Caselines.
[67] I do not need to repeat the prior orders. The respondents Brown and Siarek remain obligated by the prior orders made by court to remove the two American Pocket Bullies from the condominium unit permanently and not to possess any other dogs there. Those orders remain in force and continue to be enforceable immediately.
FL Myers J
Released: March 14, 2022
COURT FILE NO.: CV-22-674872 DATE: 20220314 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 1260 Applicant – and – SABITA SINGH, SEAN BROWN and PATRYCJA SIAREK Respondents REASONS FOR JUDGMENT FL Myers J
Released: March 14, 2022