CONDOMINIUM AUTHORITY TRIBUNAL
DATE: October 26, 2023
CASE: 2023-00270N
Citation: Simcoe Common Elements Condominium Corporation No.363 v. Todd, 2023 ONCAT 160
Order under section 1.44 of the Condominium Act, 1998.
Member: Patricia McQuaid, Vice-Chair
The Applicant,
Simcoe Common Elements Condominium Corporation No. 363
Represented by Linda Fillion, Agent
The Respondent,
Sally Todd
Self-Represented
Hearing: Written Online Hearing – August 7, 2023 to October 12, 2023
REASONS FOR DECISION
A. INTRODUCTION
[1] This is a case about parking. The central issue is whether the Respondent is violating provisions in Simcoe Common Elements Condominium Corporation No. 363’s (“SCECC 363”) declaration and rules by allowing her clients to park in designated visitor parking spaces. Unfortunately, other issues percolated through the evidence such as allegations of trespassing, failure to obey traffic signs on the municipal road before entering the community, the violations of board’s code of ethics and whether the Respondent, Ms. Todd, has the right to conduct a business from her home. These issues are outside the Tribunal’s jurisdiction.
[2] SCECC 363 is a townhouse community. The 18 townhomes and the land on which they sit, including their front yards and driveways, are each a parcel of tied land (a “POTL”) to which a portion of the common interest in the common elements of the corporation is legally attached. The common elements of SCECC 363 include the roadways within the community and the six designated visitor parking spaces. SCECC 363 does not govern the use of the POTL and has no authority to control what takes place inside a townhome. This is an apparent frustration for some of the owners of SCECC 363. As Ms. Fillion, president of the board, submitted: owners believed that “no business could operate within our gated community”.
B. EVIDENCE AND ANALYSIS
[3] Ms. Todd moved into her home on March 2, 2023. She has a massage therapy business and works four days-a-week, seeing four to five clients-a-day, each for a maximum one-hour appointment. She testified that a by-law enforcement officer attended at her home on March 16 because of a complaint made by a neighbour about her home-based business. She testified that the officer confirmed that she was permitted to work from home. After to this, complaints were made about where her clients were parking which led to this application being filed on May 26, 2023.
[4] Before addressing the specifics of the parking issues, a description of the physical lay-out of the community is helpful. SCECC 363 submitted a survey diagram of the community (with handwritten notations). The roadway on which the homes are located is narrower than the municipal road by which one would access the community. As one would expect, there are fire hydrants, and at various points, signs indicating that it is a fire route along the roadway. There is a gate to the left of Ms. Todd’s property. The visitor parking spaces are on the other side of the gate. This is important because if someone enters via the main access to the community, they can park in visitors parking but the gate, if closed prevents access to Ms. Todd’s driveway.
[5] I also wish to note for the parties, that though I have considered all the evidence submitted to me, I will only refer to the evidence and submissions relevant to my analysis of the issues to be decided by me. As I noted above, in this case, there were many matters raised which were far outside the scope of this hearing and had far more to do with a breakdown in neighbourly relationships among a few owners than any issue which this Tribunal had jurisdiction to decide.
ISSUE: Is the Respondent violating SCECC 363’s governing documents related to visitor parking by allowing her clients to park in those spaces?
[6] Several provisions in the governing documents have some relevance to this matter. Section 3.5 of the declaration relates to visitor parking and states:
SIX (6) visitor parking spaces form part of the Common Elements for use by visitors to the Owners of POTLS only…Each visitor parking space shall be individually designated as visitor parking by means of clearly visible signs….No parking whatsoever shall be permitted on the roadways which comprise portions of the Common Elements.
Rules relevant to the issues before me are as follows:
7. PARKING
For the purpose of these Rules, “motor vehicle” means a private passenger automobile, station wagon, compact van, SUV, or motorcycle as customarily understood.
a) No vehicles, equipment or machinery, other than motor vehicles belonging to visitors or invitees of owners or residents of POTLS shall be parked or left on any part of the Common Elements other than the designated visitor’s parking area.
b) Parking is prohibited in the following areas:
i) fire and emergency zone
ii) traffic lanes
iii) roadways
h) Guests and visitors shall park only in areas designated as guest or visitor parking.
[7] It is the position of SCECC 363 that paying business clients are not guests or visitors, therefore there is a clear violation of the rules. That is a view strongly held by the board as apparent through their submissions. They state for example that “the intent of visitor /guest parking was not intended for business owners use”. Although that is the board’s view, it is not determinative of this case. The Tribunal looks to the wording of the relevant provisions. Intent is not stated nor is “visitor” defined in either the declaration or the rules.
[8] What then is the reasonable and commonly understood meaning of visitor? A visitor may be a person who visits for any number of reasons - social or business. A visitor denotes someone who attends for a short period of time, as opposed to a tenant or resident. It is not reasonable nor is there logically any basis to assert that someone who attends occasionally, even weekly, for approximately an hour, does not fall within the meaning of visitor.
[9] Though it may trouble the board of SCECC 363 that Ms. Todd is conducting a business, and perhaps there is, as a result, more traffic through their community than some would like, to assert that those attending Ms. Todd’s home as her paying clients are therefore not visitors is an interpretation that is not reasonably supported on the evidence.
[10] I note too that there was some speculation in SCECC 363’s submissions that if Ms. Todd grew her business she might use all the visitor parking spaces leaving no space for others. There is no evidence of that intent before me and no evidence that all six spots are ever taken up by her clients.
[11] Based on the evidence before me, I find that Ms. Todd is not violating the visitor parking provisions by allowing her clients to park in the designated parking spaces.
ISSUE: Is the Respondent violating other provisions in the governing documents related to parking
[12] Section 3.5 of the declaration and rules 7(a) and (b) prohibit parking on the common elements. SCECC 363 states that Ms. Todd should require her clients to use her driveway. Yet, based on the evidence from several of their witnesses and the photos submitted, SCECC 363 also finds it problematic if her clients wait on the roadway for a space on her driveway or stop to ask directions to her home. There is no evidence before me that Ms. Todd’s clients, more than any other person visiting or making a delivery to any resident of SCECC 363 are doing anything more than stopping briefly and momentarily on the roadway, which may sometimes be in a fire route area or near a fire hydrant.
[13] Both parties submitted many photographs in evidence allegedly depicting “illegal” parking. Most photos were not relevant to the issues, but what they did reflect was a level of mutual surveillance which can only be described as unhealthy for any community. They included, for example, a photo of someone in the driver’s seat of a vehicle who was ostensibly a client of Ms. Todd’s and an Amazon delivery truck making a delivery to one of Ms. Todd’s neighbours.
[14] While, I do not find, based on the evidence, a violation of the parking rules, I will highlight that the physical layout of the community, with Ms. Todd’s home and driveway on the other side of the gate does likely lead to some confusion, resulting in people stopping at the side of the road or asking other residents to raise the gate (which seems to cause annoyance to her immediate neighbours). This would be less likely to occur, and in fact, would reduce vehicle traffic in the immediate vicinity of Ms. Todd’s home, if specific instructions are given to her clients to park in visitor parking as they are, I have found, entitled to do.
[15] Intertwined with SCECC 363 submissions on the parking issues is an assertion that the consequences of the increased traffic within the community resulting from Ms. Todd’s business are unreasonably interfering with their use and enjoyment of their property. Whether or not that could be established – whether it is in fact trivial, it is not a parking issue, but an issue stemming from the board’s antipathy to a home-based business. As this is something over which SCECC 363 has no authority given that it cannot govern an owner’s use of the POTL, it is clearly not a matter within the Tribunal’s jurisdiction.
C. CONCLUSION
[16] I have found that the Respondent is not violating the parking provisions in the governing documents, and in particular, her clients are visitors and therefore are permitted to park in the designated parking spaces.
[17] As I indicated at the beginning of my reasons, many issues raised in evidence had no relevance to the issues for me to decide. One such issue is the ‘trespass’ issue as characterized by the witnesses. Some neighbours of Ms. Todd allege that her clients, as they walk to her front door, walk across their front yard or on their driveways. To say that they find this upsetting would be an understatement. Ms. Todd has stated that she has given directions to her clients as to how to access parking. Perhaps she can and should do more. I encourage her to give specific direction to her clients to park in visitor parking or her driveway only, to only walk on the roadway and not on other owners’ lawns, with clear instructions on how to access her front door. This, together with a mutual display of courtesy and respect, may de-escalate current tensions.
D. ORDER
[18] The Tribunal Orders that:
1. This application is dismissed without costs.
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Patricia McQuaid |
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Vice-Chair, Condominium Authority Tribunal |
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Released on: October 26, 2023