CONDOMINIUM AUTHORITY TRIBUNAL
DATE: March 10, 2023
CASE: 2022-00473N
Citation: Rahman v. Peel Standard Condominium Corporation No. 779, 2023 ONCAT 37
Order under section 1.41 of the Condominium Act, 1998.
Member: Nicole Aylwin, Member
The Applicant,
Aqib Rahman
Self-Represented
The Respondent,
Peel Standard Condominium Corporation No. 779
Represented by Megan Molloy, Counsel
DISMISSAL ORDER
[1] Under Rule 43.1 of the CAT’s Rules of Practice, the CAT can close a case in Stage 3 - Tribunal Decision if the CAT determines that that it has no legal power to hear or decide upon the dispute.
[2] The Applicant, Aqib Rahman, filed an application with the Tribunal which proceeded to Stage 3 – Tribunal Decision in November 2022. At issue, according to the Mr. Rahman, are the odours, vapours, smells, smoke and other airborne contaminants that he believes are entering his unit through faulty vent covers. This application was accepted by the Tribunal as the Tribunal has the jurisdiction to deal with cases involving a nuisance, annoyance, or disruption caused by such things as vapour, odour and smoke.
[3] The Respondent, Peel Standard Condominium Corporation No. 779 (“PSCC 779”), brings this motion to dismiss based on the grounds that this is not a case about a nuisance, annoyance, or disruption that is unreasonable. Rather, it takes the position that this is a dispute about a maintenance and repair issue, which is outside the jurisdiction of the Tribunal. It further submits that even if the Tribunal determined that the substance of this case is that of unreasonable nuisance, annoyance, or disruption, the case has no reasonable prospect of success and should be dismissed.
[4] It would be an understatement to say that there is significant acrimony between these parties and the law firm that represents them. There are multiple legal proceedings that are ongoing between the two parties both at this Tribunal and in the courts. There are also legal proceedings ongoing between Mr. Rahman the specific legal representatives and law firm chosen by PSCC 779 to represent them in these various proceedings.
[5] This background is relevant only insofar as at several points in the hearing, Mr. Rahman has asked me to consider evidence, submissions, facts, and other legal notices related to other legal proceedings as evidence and submissions in this case. I have declined as these proceedings are not relevant to the issues I have to decide, and it would not be fair or proper for me to consider materials filed in other cases regarding other disputes. Yet, despite having explained this to Mr. Rahman, he continued to raise such issues often delaying the hearing and adding time and expense to the proceeding. In making my decision I have only considered the submissions and evidence that are properly before me and related to this motion.
[6] For the reasons set out below, I find that this case in its substance is about a maintenance and repair issue, which is outside of the Tribunal jurisdiction. Accordingly, I order that this case be dismissed.
ANALYSIS
[7] Rule 19.1 of the Tribunal’s Rules of Practice states that the Tribunal can dismiss an application or case at any time in certain situations, including:
(a) Where a Case is about issues that are so minor that it would be unfair to make the Respondent(s) go through the CAT process to respond to the applicant(s)’s concerns;
(b) Where a case has no reasonable prospect of success;
(c) Where a Case is about issues that the CAT has no legal power to hear or decide;
(d) Where the Applicant(s) is using the CAT for an improper purpose (e.g., filing vexatious Applications).
[8] PSCC 779 has asked the Tribunal to dismiss the case first and foremost under 19.1(c).
Rule 19.1 (c): does the Tribunal have the legal power to hear or decide this case?
[9] This application was filed under the Tribunal’s jurisdiction under s. 1(1)(d)(iii.2) of Ontario Regulation 179/17 (“O. Reg 179”) which states that the Tribunal may deal with a dispute with respect to:
(iii.2) Provisions that prohibit, restrict or otherwise govern any other nuisance, annoyance or disruption to an individual in a unit, the common elements...
[10] The Tribunal’s jurisdiction to order a remedy with respect to a nuisance, annoyance or disruption arises under s. 117(2) b of the Condominium Act (the “Act”), which states:
(2) No person shall carry on an activity or permit an activity to be carried on in a unit, the common elements or the assets, if any, of the corporation if the activity results in the creation of or continuation of,
(a) any unreasonable noise that is a nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation; or
(b) any other prescribed nuisance, annoyance or disruption to an individual in a unit, the common elements or the assets, if any, of the corporation. 2015, c. 28, Sched. 1, s. 102.
[11] The “other prescribed nuisances” are defined in s. 26 of Ontario Regulation 48/01 (“O.Reg 48/01”), and includes odour, vapour and smoke if they are “unreasonable”.
[12] The origin of this dispute stems back to August and September of 2022, when PSCC 779, in responding to complaints from Mr. Rahman, identified a problem with the vents and ducts that serviced not just the kitchen and bathroom ventilation fans in Mr. Rahman’s unit but other units as well. Upon investigation, it was determined that the dampers (which are behind the vent covers) do not meet current Building Code requirements. As such, PSCC 779 proposed to retrofit all the dampers in accordance with the recommendation of their engineer within the next year (being the current year, 2023).
[13] According to PSCC 779, this case, in its substance, is not about nuisances, annoyances or disruptions, unreasonable or otherwise. Rather, PSCC 779 submits that Mr. Rahman is displeased with how PSCC 779 has handled his complaints regarding the ventilation system and is dissatisfied with PSCC 779’s proposed plan to retrofit the vents in each unit. As a result, they argue that Mr. Rahman has framed this dispute as a ‘nuisance’ dispute in order to air his grievances. To support this position, PSCC 779 argued that Mr. Rahman has not identified any provisions in PSCC 779’s governing documents which he wishes to enforce and noted that most of Mr. Rahman’s claims and allegations focus on the faulty vents and the repair of those vents.
[14] In his response to PSCC 779’s arguments, Mr. Rahman spent a significant portion of his initial submissions on the motion, explaining how the ventilation system in the building, and in his unit, operates and why and how the PSCC 779’s plan for fixing the already identified deficiency in the vent system is flawed. He indicated he has expertise in this area and that based on his expertise, PSCC 779’s proposed plan and the current actions are not sufficient for addressing the ventilation issues. In his initial submissions, he makes little to no reference to any nuisances, annoyances or disruptions in his unit.
[15] As a result, and to ensure Mr. Rahman was aware of what information I needed to decide this motion, I reminded Mr. Rahman of the Tribunal’s Rule 19.1 (b) and (c) and that I had been asked to dismiss the case based on these rules. I asked him to tell me why he believed this case was within my power to decide; explain how this case is about nuisance, annoyance or disruption rather than a case about maintenance and repair; and asked him to tell me what evidence he was proposing to use to show that this case could succeed as a claim of nuisance, annoyance or disruption under 117(2) of the Act. I also indicated that he could make any final submissions on the arguments that had been made by PSCC 779.
[16] In his final reply, Mr. Rahman again extensively detailed why he believed that a deficiency in back draft dampers of the vents was not being adequately addressed by PSCC 779. He does note very briefly, that due to the deficiency in the vents he can, on very windy days, hear loud howling coming through the duct and that due to the deficiencies with the damper “depending on the weather” it may allow air to come back into his unit and bring with it odours, etc.
[17] While Mr. Rahman may not have identified any provisions of PSCC 779’s governing documents he wishes to enforce, he does not need to. While the Tribunal does have jurisdiction over disputes that involve the provisions that “prohibit, restrict or otherwise govern the activities described in subsection 117 (2) …” , it also has jurisdiction over disputes that arise under s. 117(2) of the Act regardless of whether there are corresponding provisions in the condominium’s documents.
[18] However, to fall within the jurisdiction of the Tribunal to decide the dispute under 117(2) there must be evidence of a nuisance, annoyance or disruption. While Mr. Rahman submits that the faulty vents may contribute to odours, other smells, vapour or smoke in his unit, he has offered no submissions or evidence that these are unreasonable. Therefore, I cannot conclude that they form a nuisance annoyance or disruption for the purpose of s. 117(2).
[19] Ultimately, what appears to be at the heart of this dispute is whether the actions PSCC 779 has taken in response to identifying the faulty dampers, its plan to address them, how quickly that plan is executed and at what cost to whom, are all matters of disagreement. All matters of general maintenance and repair - which are outside the jurisdiction of the Tribunal.
[20] Accordingly, for the reasons above, I find that this case is not in its substance one that is about a nuisance, annoyance or disruption that is unreasonable under s. 117(2) of the Act and I dismiss this case.
[21] Having determined that this dispute does not fall within the Tribunal’s jurisdiction, I do not need to decide the question of if it has any reasonable possibility of success under the Tribunal’s Rule of Practice 19.1(b).
ORDER
[22] The Tribunal orders that:
1. This case is closed in Stage 3 - Tribunal Decision under Rule 43.1 of the CAT’s Rules of Practice.
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| Nicole Aylwin |
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| Member, Condominium Authority Tribunal |
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Released on: March 10, 2023