Unit owner cooperating with condominium may still shoulder legal costs for bad occupant: lawyer

Unit owners should expect to take responsibility for costs in cases involving their occupants, even if such owners cooperate with the condominium corporation and take reasonable steps to obtain compliance, a lawyer practising condominium law has said.

Unit owners should consider the consequences of leasing their units and vetting tenants, given that this legal framework aims to safeguard other residents from shouldering the burden of costs arising due to one bad resident, wrote An Nguyen of Gardiner Miller Arnold LLP in an article.

The article discussed the case of MTCC No. 1025 v. Hui, 2021 ONSC 5839, which according to Nguyen serves as a reminder to condominium corporations to involve unit owners immediately once the occupant’s misconduct arises and to give such owners the information they require to take steps to evict the misbehaving tenant.

“There are compliance cases where owners have been relieved from paying costs or cost awards reduced because the corporation did not inform owners of misconduct early or did not supply full particulars to the owner to take appropriate steps,” wrote Nguyen in the article. In these cases, the condominium corporations were forced to collect costs from the tenants without the benefit of a registered lien against a unit.

In MTCC No. 1025 v. Hui, the applicant condominium corporation initiated an action against the respondent tenant, who allegedly engaged in bizarre and disturbing behaviour since mid-June 2021. The applicant also sought an order directing the respondent unit owner, who leased the unit to the tenant, to take reasonable steps to ensure that the tenant would comply with the applicable legislation and rules.

The Superior Court of Justice of Ontario found that the tenant’s conduct caused or was likely to cause damage to property or injury to an individual and declared that the tenant had violated the Condominium Act, 1998, the Condominium’s Declaration and Rules and the Occupational Health and Safety Act (OHSA).

The court issued an order requiring the tenant to comply with s. 117 of the Condominium Act, pursuant to s. 134 of the same law; to cease his threatening, abusive, intimidating and harassing behaviour; to adhere to the condominium’s declaration and rules; and to cease and desist from uncivil or illegal conduct breaching the workplace violence and harassment provisions of the OHSA. The court also validated the service of the application record and factum on the tenant, who did not attend the hearing.

According to the court, the evidence established that the tenant damaged property, including by breaking his unit’s window and by carving his initials on other unit doors, and threatened the security guards and fellow residents. He also breached the condominium’s declaration and rules

by disturbing other residents, by taking off his clothes at common areas, by performing lewd acts and by blocking the entrance so that the other residents could not get inside.

The court also found that the tenant violated the Occupational Health and Safety Act. He committed workplace violence when he threatened a floor guard with a knife, as well as sexual harassment when he forced staff to witness his exhibitionism including by undressing, by exposing his genitals and buttocks, by masturbating and simulating sex in the elevators and in the parking garage in view of the security cameras.

The court held the two respondents jointly and severally liable for paying, within 30 days, the fixed application costs of $10,000. Justice William Chalmers expressed some sympathy for the respondent unit owner, who fully cooperated by taking steps to remove the tenant from the unit, but also sympathized with the building’s other unit owners, who should not be held responsible for the application costs.