Ontario Court Evicts Unruly Owner

Case Comment: Ontario Court Evicts Unruly Owner, by Paul G. Mendes

MTCC No. 747 v. Korolekh

In another precedent-setting case, an Ontario court has ordered a condominium owner to sell her suite and leave the building after years of unruly behavior.

Although not the first of its kind in Canada, the decision underscores how extreme a case has to be before the court will impose such an extraordinary remedy. Condo owners and property managers are now wondering whether this landmark ruling will have any application in British Columbia.

MTCC 747 was a beautiful and idyllic townhouse community. Neighbours congregated in the courtyard. Children laughed and played outside their units, and the common area gardens flourished. Once Ms. K moved in with her Rottweiler, however, a noticeable climate of fear quickly emerged.

Other owners testified that Ms. K frequently accosted them with profanity-laced racial and homophobic epithets. When Ms. K was not using her dog to frighten the neighbors and their children, she let it run free throughout the complex and was frequently observed not picking up after her dog. The owners uniformly testified that they were afraid to venture outside their units for fear of Ms. K and her dog. The once vibrant courtyard of MTCC 747 was now deserted. The condominium corporation even led evidence from a restaurant owner in a neighboring building, who corroborated the owners’ testimony.

Ms. K, who was represented by legal counsel, denied everything. She claimed to be a busy stockbroker with two university degrees who had “neither the time nor the inclination” to do any of the things alleged against her. Although she testified that she was neither racist nor homophobic, the court observed that she led no evidence to counter any of the specific allegations made against her. The court also made special note of the fact that Ms. K never cross-examined any of the condominium corporation’s witnesses on their two volumes of affidavit evidence.

In the end, the court accepted the evidence of the condominium’s witnesses. In ordering the unit to be sold, the court reviewed a number of Ontario court decisions, including one in which an order for sale was refused. The court concluded that Ms. K’s behavior was so extreme and so disruptive that there was no hope that she could be integrated back into the community or that an injunction to control her behavior would be successful.

This decision has important implications for strata corporations in British Columbia. The right to evict tenants from strata lots is provided for in s. 138 of the Strata Property Act(the “SPA”). Evicting an owner, however, requires a strata corporation to take a much more circuitous legal route.

One option is a court application under SPA 173, which provides that a court may:

(a) order an owner, tenant or other people to perform a duty he or she is required to perform under this Act, the bylaws or the rules;

(b) order an owner, tenant or other people to stop contravening this Act, the regulations, the bylaws or the rules;

(c) make any other orders it considers necessary to give effect to an order under paragraph (a) or (b).

SPA 173(1)(c) has been relied on at least once in British Columbia to obtain an order for the sale of a strata lot The Owners, Strata Plan 1080 v. Verlaan (22, February 2007), Vancouver, S065342. The Verlaan decision, like MTCC 747, presented an extreme set of facts. The respondent owner was suspected of running a crack house from his unit.

Another option is finding the owner. If the owner fails to pay the fines the strata corporation can apply for judgment. The strata corporation can then register the judgment on a title to the owner’s strata lot and apply to sell the strata lot under the Court Order Enforcement Act(the “COEA”) if the fines still remain unpaid. The COEA process can take time and the result is not guaranteed. For example, the owner may pay off the judgment or the court may give the owner time to pay the judgment in installments. If that happens, the strata corporation will be back to “square one” with the owner.

Strata corporations faced with dealing with abusive owners should consider an application under SPA 173. MTCC 747 and similar decisions that have ordered eviction show that voluminous detailed evidence is required to persuade a court to make such an order. Owners who have complained about the abuse should keep detailed logs of their complaints and submit them to council regularly. The strata council must act promptly to address the complaints and take the usual steps to enforce the bylaws, including warning letters and fines. Councils must also be careful to follow the procedure under SPA 135 before enforcing the bylaws. If the strata corporation’s efforts are not successful at changing the owner’s behavior, then the information obtained from the complaining owners, along with the council’s efforts to enforce the bylaws, can form the basis for an eviction under SPA 173.

Reasons for Judgment: Metropolitan Toronto Condominium Corporation No. 747 v. Korolekh, 2010 ONSC 4448

What We Do: We have extensive experience dealing with abusive owners. We have successfully obtained injunctions against abusive owners and orders for sale against unruly owners who have failed to pay their bylaw fines. If you would further advice on this topic or any other strata law topic, please contact Paul G. Mendes to make an appointment for an in-person meeting or teleconference.


THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied upon without independent legal advice with respect to the specific facts of your case.