Court File and Parties

COURT FILE NO.: CV-23-00709612-0000 DATE: 20240408 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

York Condominium Corporation No. 327 Applicant – and – Anna Maria Scotti and Paolo Scotti Respondents

COUNSEL: Jonathan Fine and Jake Fine, for the Applicant David M. Schell, for the Respondents

HEARD: April 3, 2024

BEFORE: Robert Centa J.

Endorsement

[1] Anna Maria Scotti is 87 years old. She owns a unit in York Condominium Corporation No. 327, where she lives with her son, Paolo Scotti. Ms. Scotti and Mr. Scotti have lived together in the condominium unit since 1978. For most of this time, their tenure at the condominium has been entirely uneventful.

[2] Both Ms. Scotti and Mr. Scotti live with health challenges. In 2020, Ms. Scotti suffered a stroke, from which she has not fully recovered. She has high blood pressure and a heart irregularity. Ms. Scotti depends on her son to provide care and to complete household chores that allow her to continue to live in her home. Mr. Scotti lives with schizophrenia. His first episode of psychosis and hospitalization was in 1992 and he received his diagnosis in 1994. For 30 years, Mr. Scotti managed his condition well, functioned at a high level in society, and held meaningful and pro-social employment. Mr. Scotti managed his mental health with medication until 2019, when he chose to discontinue his treatment for his mental illness and stopped taking his medication. He believed that he could continue to function well without the need for medication. Unfortunately, he was wrong.

[3] Mr. Scotti admits that after he discontinued his medication, his mental health began to deteriorate slowly. The onset of the pandemic exacerbated the decline of his mental health. On March 14, 2023, while at his job, someone threatened to kill Mr. Scotti, which further aggravated his health condition. As his mental health deteriorated, Mr. Scotti began acting out at the condominium. Mr. Scotti accepts that he behaved inappropriately in a variety of ways, including arguing with condominium residents and making undue noise. Mr. Scotti accepts that his outbursts and inappropriate behaviour would have been frightening for other residents, who would fairly have been concerned about his behaviour.

[4] The condominium corporation became so concerned about Mr. Scotti’s conduct that it brought an application seeking a permanent order prohibiting Mr. Scotti from residing at the condominium.

[5] I find that Mr. Scotti has breached relevant provisions of the Condominium Act and the condominium’s declaration and rules. I also find it is appropriate to require Mr. Scotti to comply with the provisions of the Condominium Act and the condominium’s declaration and rules. However, I am not satisfied in the circumstances of this case that it is appropriate to prohibit Mr. Scotti from residing in the condominium or entering upon its common elements.

Procedural history

[6] On November 14, 2023, the condominium corporation issued this notice of application. On November 15, 2023, I issued an ex parte injunction requiring Mr. Scotti to vacate the condominium unit and restraining him from further dangerous or harassing behaviour, and ordered him to comply with s. 117(1) of the Condominium Act as well as the corporation’s declaration, by-laws, and rules.

[7] On November 23, 2023, the matter came back before me. At that time, Mr. Scotti and his sister attended the hearing. They advised that Mr. Scotti was in the process of retaining counsel. I adjourned the application to December 18, 2023, and extended the injunction to the final disposition of the application.

[8] On December 18, 2023, Mr. Schell appeared on behalf of Mr. Scotti and Ms. Scotti. I set a timetable for the exchange of material and booked the application to be heard on February 14, 2024. After I reviewed the application materials, I convened a case conference with the parties on February 13, 2024. I adjourned the application to permit the parties to have meaningful settlement discussions. Unfortunately, those discussions did not resolve matters and I heard the application on April 3, 2024.

Applicant’s position

[9] The condominium corporation’s rights and responsibilities are found in the provisions of the Condominium Act, 1998, the condominium corporation’s declaration, its by-laws, and its rules. The corporation, unit owners, and occupiers are required to comply with all of those instruments, and the corporation has the statutory obligation to take reasonable steps to ensure that owners comply with those documents.

[10] The corporation may apply to the court pursuant to s. 134 for an order requiring an owner or occupier to comply with the Corporation Act. It is not uncommon for the court to make orders requiring unit owners to conduct themselves in a manner that is civil and respectful of the rights of other owners. These orders may include requiring the subject of the order to comply with the instruments listed above, to cease and desist certain conduct, to prohibit occupancy of a unit, or to sell a unit. See Davis v. Peel Condominium Corp. No. 22, 2013 ONSC 3367; York Region Condominium Corporation No. 794 v. Watson, 2021 ONSC 6574.

[11] The applicant filed many affidavits from unit owners and neighbours. Mr. Scotti disputes some of the facts at issue, but concedes that at least some of his conduct breached the Condominium Act, declaration, by-laws, and rules. I do not think anything turns on whether or not the condominium corporation can prove each and every fact in dispute because even if the corporation proved all of the facts in dispute, I would still not grant them the permanent ban they seek.

[12] The condominium corporation’s affiants describe a series of disturbing incidents involving Mr. Scotti. They include outbursts, loud music, screaming, aggressive behaviour, and yelling obscenities and racial slurs. Nothing in these reasons is meant to minimize Mr. Scotti’s misconduct or how disturbing this behaviour must have been to the affiants. I accept without hesitation that Mr. Scotti’s misconduct has upset them and interfered with their peaceful enjoyment of their own units and the common areas. My order will require Mr. Scotti to comply with the Condominium Act, the declaration and the by-laws.

[13] However, I am not prepared to order Mr. Scotti to vacate the unit at this time. In my view, the condominium corporation has not met the test for the extraordinary remedy of a vacating order at this time for the following reasons.

[14] First, Mr. Scotti has lived most of his life at the condominium. From 1994 to 2019, he lived without incident at the condominium with his diagnosed mental illness of schizophrenia. As long as he was in treatment and took his medication, Mr. Scotti had a 25-year unblemished track record of successfully living in the community at the condominium.

[15] Second, I find that all of Mr. Scotti’s misconduct was caused by his mental illness. It was only after he stopped his medical treatment and his medicine that his mental health deteriorated rapidly and he began to behave anti-socially. While his illness does not excuse his misconduct, it does explain his misconduct.

[16] Third, there is significant evidence that, after Mr. Scotti learned of the condominium corporation’s concerns, he took steps to address his mental health. On October 23, 2023, Mr. Scotti advised the condominium corporation that he had spoken to his previous healthcare provider and was meeting with another healthcare provider later that week. On October 27, 2023, Mr. Scotti reported that he had met with a Mobile Crisis Intervention Team nurse, had reconnected with healthcare provider services, had received a call from the person he hoped to work with as new case manager, had seen his family doctor who referred him to a psychiatrist for community support care, and had made arrangements with his family doctor to act as a prescriber of any new medicines. Mr. Scotti then confirmed his relationship with his new case manager. In November, he resumed a treating relationship with his former psychiatrist, Dr. Ken Harrison.

[17] Fourth, I find that Mr. Scotti’s mental illness is improving and that he is compliant with his medication regime. On December 8, 2023, Dr. Harrison provided a letter to counsel for Mr. Scotti. The letter confirmed that Dr. Harrison was Mr. Scotti’s treating psychiatrist from 1992 to 2020 and had resumed working with him in November 2023. The letter confirmed that since resuming treatment, Mr. Scotti was taking his medication as prescribed and attending weekly appointments. Dr. Harrison noted that Mr. Scotti had previously responded well to his medication and that his symptoms had improved since he resumed his medication. Dr. Harrison expressed his confidence that Mr. Scotti would return to health with sustained treatment. The letter read, in part, as follows:

Thank you for your request for a letter regarding Mr. Scotti. I was Mr. Scotti's treating psychiatrist from 1992 to 2020 and began to work with him again in November 2023. Since resuming treatment, he has been adherent with both recommended pharmacotherapy and weekly follow-up appointments. I last saw him on December 6, 2023.

In my opinion, Mr. Scotti clearly has a disability within the meaning of the Human Rights Code of Ontario. Specifically, he suffers with a mental disorder - schizophrenia. Schizophrenia is characterized by the presence of the following:

1. delusions
2. hallucinations
3. disorganized speech
4. grossly disorganized or catatonic behaviour
5. negative symptoms including diminished emotional expression or avolition.

I understand that after discontinuing treatment, Mr. Scotti began to experience symptoms of psychosis which, in my opinion, contributed to the conduct described in the letter from the Condo Corp. Mr. Scotti is currently capable with respect to treatment and has consented to resume the antipsychotic medication to which he previously showed a robust response. Although he continues to experience symptoms of his condition, I have observed an attenuation of these symptoms since resuming pharmacotherapy and am confident that he will return to health with sustained treatment.

In my opinion, Mr. Scotti does not currently pose a risk of harm to self or others as outlined in the Mental Health Act (R.S.O. 1990, c. M.7, s. 15 (1); 2000, c. 9, s. 3 (1)).

[18] The condominium corporation objected to the admissibility of this letter on two grounds: that the opinion offered by Dr. Harrison is hearsay and was not in the form of an expert report that complied with rule 53.03 of the Rules of Civil Procedure. I disagree.

[19] Generally, experts retained by parties to litigation (litigation experts) must prepare an expert report in accordance with rule 53.03. However, litigation experts are different than non-party experts. A non-party expert is a witness with special skill, knowledge, training or experience who has not been engaged by on behalf of a party to the litigation. See Westerhof v. Gee Estate, 2015 ONCA 206, at paras. 60-62. A non-party medical expert may give opinion evidence for the truth of its contents provided the opinion is given as part of the exercise of their skill and knowledge while observing or participating in the events at issue, the opinion is not a “complex vocational opinion requiring highly specialized expertise”, and it was disclosed to the opposing party. See Westerhof, at paras. 60-62; St. Marthe v. O’Connor, 2021 ONCA 790, at para. 24.

[20] Non-party expert opinions are usually contained in clinical notes and records or reports prepared for the purposes of consultation and treatment. See Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888, at paras. 61-63. A non-party expert need not provide a rule 53.03 report where the opinion is based on the witness’s observations of, or participation in, the events at issue and the opinion was formed as part of the exercise of skill, knowledge, training, and experience while observing or participating in the events. See Westerhof, at para. 60.

[21] In my view, Dr. Harrison’s letter is admissible for the truth of its contents. I find that Dr. Harrison is a non-party expert. The opinion offered by Dr. Harrison in his letter is based on his observation of or participation in the events at issue and the opinion was formed as part of the exercise of skill, knowledge, training, and experience while observing or participating in the events. His evidence does not go beyond his observations of Mr. Scotti.

[22] There is no unfairness in admitting this letter on this application. The letter was disclosed to the condominium corporation. The corporation did not request to examine Dr. Harrison under rule 39.03 and did not ask for production of the medical file. The condominium corporation did not deliver any responding opinion that cast doubt on any of Dr. Harrison’s observations. Indeed, there is nothing in the record before me to suggest that Mr. Scotti is not currently in treatment and taking his medication as directed.

[23] The condominium corporation points out that Mr. Scotti admitted that he is continuing to experience symptoms of mental illness. That is not surprising given his lengthy failure to comply with his treatment regime. It is not a reasonable expectation for Mr. Scotti to be symptom free. Indeed, he may always be prone to a relapse, particularly if he is not compliant with his treatment plan. However, there is nothing in the record to undermine Dr. Harrison’s conclusion that he has “observed an attenuation of these symptoms since resuming pharmacotherapy and am confident that [Mr. Scotti] will return to health with sustained treatment.” I accept this opinion.

[24] This case is unlike the James case relied on by the condominium corporation. In that case, there was no evidence filed in response to the application. Thus, there was no evidence that Ms. James was under medical treatment or that the symptoms of her mental illness might be attenuated with medication. If there was no such evidence in this case, it might be appropriate to grant the condominium corporation the order it sees. As set out above, however, the circumstances of this case are quite different.

[25] Fifth, there is no evidence that Mr. Scotti has breached my earlier order in any material way. As soon as he was able to depart the building, he did so. This is not a case where Mr. Scotti has deliberately or flagrantly breached a court order. See York Condominium Corp. No. 137 v. Hayes, 2012 ONSC 4590, at para. 22; YRSCC No. 1253 v. McConnell, 2024 ONSC 484, at para 16. This fact also distinguishes this case from the James decision, where O’Marra J. observed that “previous court orders were not sufficient to control the unacceptable and antisocial behaviour of the respondent.”

[26] Sixth, Mr. Scotti has lived in the condominium unit since 1978. The condominium corporation does not dispute that he is the caregiver for his elderly and ill mother. While that would not prevent an order removing Mr. Scotti from the premises, it is a reason to consider carefully whether the condominium corporation’s evidence justifies an order removing him permanently from the unit.

[27] Seventh, in any event, I do not accept the submission of the condominium corporation that Mr. Scotti’s “mere presence on the property will cause undue hardship to the residents” of the condominium corporation. That submission is unsupported by the evidence and does not reflect the state of the law on the duty to accommodate. As conceded by the condominium corporation during oral argument, it has taken no steps to accommodate Mr. Scotti since he has resumed his medical treatments and has been compliant with his medication.

[28] In conclusion, I declare that Mr. Scotti has violated the Condominium Act, the declaration, the by-laws, and the rules. I order that he comply with those instruments going forward. I decline to award the condominium corporation any further relief. As my prior order was interlocutory, it is now expired and no longer in force.

[29] If the parties are not able to resolve costs of this action, the condominium corporation may email its costs submission of no more than three double-spaced pages to my judicial assistant on or before April 15, 2024. The respondents may deliver their responding submission of no more than three double-spaced pages on or before April 22, 2024. No reply submissions are to be delivered without leave.

Robert Centa J. Released: April 8, 2024