Court File and Parties

COURT FILE NO.: CV-23-00711605-0000 DATE: 2024-01-22 ONTARIO SUPERIOR COURT OF JUSTICE

RE: York Region Standard Condominium Corporation No. 1253, Applicant -and- Michelle McConnell, Isai Azariev and Zoya Azariev, Respondents

BEFORE: Robert Centa J.

COUNSEL: Kim Ferreira and Dora Konomi, for the applicant Daniel Yudashkin, for Isai and Zoya Azariev, respondents No one appearing for Michelle McConnell, respondent

HEARD: January 22, 2024 (in writing)

Endorsement

[1] Isai and Zoya Azariev own a condominium unit in a residential building in Thornhill, Ontario. On April 21, 2021, the Azarievs leased the unit to their tenant, Michelle McConnell. Starting in April 2023, building staff started to receive a series of complaints about Ms. McConnell’s behaviour. Ms. McConnell’s behaviour was so disturbing that building staff called the police on more than one occasion. Eventually, the condominium corporation became so concerned about the safety of other residents that it commenced this application.

[2] For the reasons that follow, I grant the application and order that Ms. McConnell permanently vacate the unit on or before January 27, 2024.

Procedural history

[3] The corporation appeared before me in Civil Practice Court on December 20, 2023. I adjourned the appearance to a case conference before me on January 5, 2024. In my endorsement scheduling the case conference, I advised the parties that, in accordance with rule 50.13(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I might make procedural orders including, for example, an injunction to prevent the respondents from living in the condominium pending the final disposition of the application. I invited all parties to provide me with case conference memos in advance of the case conference. I emphasized to the respondents that “this matter is extremely serious and they should retain lawyers.” My endorsement was delivered by email to all respondents.

[4] The respondents neither submitted memos nor attended the case conference on January 5, 2024. In the circumstances, I set a timetable for the parties to exchange written material. The respondents had until January 19, 2024, to deliver responding material, failing which I would determine the application in writing during the week of January 22, 2024.

[5] I also issued an interlocutory order that required Ms. McConnell to comply with the Condominium Act and the declaration, by-laws, and rules of the applicant, and to maintain peace, order, and good behaviour on the premises pending the final determination of the application. I directed the corporation to serve my endorsement and order on the respondents by email.

[6] On January 17, 2024, counsel for the Azarievs contacted my judicial assistant and arranged for a case conference, which took place on January 19, 2024. Counsel for the Azarievs advised me that his clients did not oppose the relief sought by the corporation, but would like an opportunity to make submissions on costs.

[7] Ms. McConnell did not deliver any written material and has not participated in this proceeding in any way.

Statutory scheme

[8] The corporation has the statutory objects and duties to control and manage the common elements on behalf of the owners and to take all reasonable steps to ensure that the owners and occupiers of the units comply with the Condominium Act and the condominium’s declaration, by-laws, and rules. [1] The Act places parallel obligations on owners and occupiers of units to comply with those same instruments.

[9] Section 117 of the Act obliges the corporation to ensure that no unsafe condition, or activity that is likely to cause harm to persons or property, is permitted to continue in a unit or the common elements.

[10] Section 134 of the Act gives the Superior Court of Justice jurisdiction to grant an order enforcing compliance with the Act and the condominium’s declaration, by-laws, and rules, and to grant relief that is fair and equitable in the circumstances. [2] The court has jurisdiction where an occupant’s actions are likely to damage the property or to cause an injury to a person. [3]

Ms. McConnell’s conduct justifies removing her from the condominium

[11] As I will describe below, Ms. McConnell’s behaviour can no longer be tolerated. She has repeatedly breached the condominium’s declaration, by-laws, and rules in ways that are extremely dangerous. Moreover, she immediately breached the terms of my compliance order. In the circumstances, I see no choice but to order her removal from the condominium unit.

[12] Between April 2023 and December 20, 2023 (the date of the first CPC appearance), building staff prepared eleven separate incident reports documenting Ms. McConnell’s antisocial behaviour. While not every incident was equally serious, six of the incidents resulted in the police being called to attend the building. One of the incidents resulted in the flooding of three units and four hallways when Ms. McConnell damaged the fire sprinkler in her unit. Four of the incident reports documented Ms. McConnell threatening residents or building staff. Ms. McConnell has also harassed building staff and called them derogatory names.

[13] Between December 20, 2023, and January 5, 2024 (the date of the case conference), building staff prepared six more incident reports documenting Ms. McConnell’s antisocial behaviour, which included screaming, loud noise, banging, and leaving objects (including the lower part of an oven, and a bag of broken glass) outside the doors of neighbouring units.

[14] On January 6, 2024, which was the day after I issued the compliance order, building staff documented that Ms. McConnell threw a glass door from her unit over her fourth-floor balcony. The glass door landed immediately outside a lower unit. In addition, on that same day, a resident reported that Ms. McConnell tried to smash in their door with a hammer, damaging the door locking mechanism and putting a hole in the door. Not surprisingly, the police again attended Ms. McConnell’s unit.

[15] Enough is enough.

[16] The incidents on January 6, 2024, are particularly troubling. First, Ms. McConnell could have killed someone when she threw the glass door over her balcony. Second, this was the day after I issued an order of the court that told her in no uncertain terms that she was required to cease engaging in conduct that damaged her unit, other units, or risked the health and safety of other members. Court orders must be followed and permitting ongoing noncompliance invites further noncompliance and increases the risk of confrontation. [4]

[17] Given Ms. McConnell’s dramatic and immediate breach of my order, and her ongoing failure to comply with the condominium’s declaration, by-laws, and rules, I have little confidence that any step short of removing Ms. McConnell immediately and permanently from the condominium will ensure the health and safety of the residents and staff of the building. [5]

[18] In all of the circumstances, I declare that Ms. McConnell is in breach of sections 117 and 119 of the Act, and the condominium’s declaration, by-laws, and rules and order that:

a. Ms. McConnell vacate the unit on or before January 27, 2024, at 3:00 p.m.; b. Ms. McConnell shall permanently cease engaging in conduct that: i. results in damage to the unit or other units or the common elements of the condominium building; ii. risks health and safety of other residents and staff members of the building; iii. disturbs the comfort and quiet enjoyment of the other owners, residents, and occupants of the building; or iv. necessitates police intervention; c. Ms. McConnell permanently vacate the unit; and d. the Sheriff will assist with the enforcement of this order if requested to do so.

Costs

[19] The corporation may email its costs submission of no more than three double-spaced pages to my judicial assistant on or before January 30, 2024. The respondents may each deliver their responding submission of no more than three double-spaced pages on or before February 6, 2024. No reply submissions are to be delivered without leave.

Robert Centa J. Date: January 22, 2024

[1] Condominium Act, 1998, S.O. 1998, c. 19, s. 17. [2] Generally, the relationship between landlords and tenants will be governed by the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Nevertheless, the court has jurisdiction to make orders that affect residential tenancies where the tenant resides in a condominium unit, see MTCC No. 1260 v. Singh, 2022 ONSC 1606, at para. 40. [3] See s. 1(3) of O.Reg. 179/17, and s. 117(1) and 134 of the Act. [4] York Condominium Corp. No. 137 v. Hayes, 2012 ONSC 4590, at para. 22. [5] Metropolitan Condominium Corporation No. 747 v. Korolekh, 2010 ONSC 4448, at paras. 86-89; Carleton Condominium Corporation No. 348 v. Chevalier, 2014 ONSC 3859, at para. 23; York Region Condominium Corporation No. 794 v. Watson, 2021 ONSC 6574, at paras. 46 to 58; Carleton Condominium v. Poirier, 2021 ONSC 3778, at paras. 143-152.