For a household cat, that warm spot on the floor in the direct sunlight is just the right temperature. For the Condominium Authority Tribunal of Ontario (the CAT) though, it’s often a bit more difficult to figure out where that sweet spot is.

In the very first reported decision issued by the CAT in 2022, the tribunal ruled that the condominium corporation ought to have commenced its online application to the CAT sooner, to enforce against an owner who was keeping a pet cat in her unit (contrary to the condominium’s no-pets prohibition), instead of sending a second legal enforcement letter to the owner from the condominium’s legal counsel. The tribunal held in Metropolitan Toronto Condominium Corporation No. 736 v. Verstova, 2022 ONCAT 1 (Verstova):

“The legal demand letter sent in April, 2020 stated that the corporation intended to take legal steps to enforce Ms. Verstova’s compliance if she did not remove the cat from the property. On October 1, 2020, jurisdiction over disputes relating to provisions in governing documents which prohibit pets was transferred to the Tribunal. Rather than filing an application with the Tribunal, the corporation sent a second legal demand letter in November 2020, notwithstanding that the two letters sent by Mr. Marshall in 2019 and the April, 2020 legal letter had all failed to secure her compliance.

MTCC 736 delayed filing an application with the Tribunal until June, 2021, more than a year after the first legal demand letter was sent. This delay resulted not only in additional legal costs associated with the November 2020 letter but also in continued inconvenience to the owners affected by Ms. Verstova’s violation of the pet rules.”

However, a few months later, the tribunal suggested in another case that perhaps the condominium ought to have waited a little longer before pursuing the CAT application. In Toronto Standard Condominium Corporation No. 2745 v. Islas, Barahona and Martinez, 2022 ONCAT 36 (Islas), the tribunal held that:

“While it would be unfair to characterize this case as a matter “blown out of proportion”, it appears to be a matter that might have been resolved with both a bit of patience and cooperation. A condominium corporation is entitled and obliged to seek compliance with its governing documents, but there is also an expectation of reasonableness in its enforcement actions.”

In Islas, a tenant’s large pickup truck was parked in a parking unit, which exceeded the parking unit’s boundaries, and Article 4.5(a) of the condominium’s declaration explicitly stipulated that, “The Owners of Parking Units shall not permit any portion of any motor vehicle parked within a Parking Unit to protrude beyond the boundaries of the Parking Unit and encroach upon any portion of the Common Elements or upon any other Unit.”

The condominium warned the owners of the parking unit that their tenant’s large pickup truck exceeded beyond the defined boundaries of the parking unit and, therefore, was in contravention of Article 4.5(a) of the declaration.

On at least two separate occasions prior to the CAT application being filed, an owner of the parking unit advised the condominium that the matter would be rectified; and on both occasions, a subsequent inspection by the condominium discovered that the large pickup truck was still exceeding the parking unit boundaries and encroaching onto the common element drive aisle.

Since the parking unit in question was located at an intersection where drivers turned on a daily basis, the pickup truck’s protrusion into the aisle interfered with the available driving area.

In view of the false assurances by the unit owner and the potential risk that the oversize truck presented to others, the condominium filed a CAT application against the parking unit’s owners and tenant to enforce compliance.

As the CAT application was ongoing, the tenant eventually cleared out the other items that were being stored in the parking unit, and began parking the pickup truck further into the parking unit, which lessened the encroachment into the drive aisle, but did not entirely eliminate it. Due to its sheer size, the large pickup truck was still exceeding the parking unit boundaries.

The tribunal ultimately held that the condominium had properly commenced the CAT application to enforce compliance and was, therefore, entitled to have the owners of the parking unit reimburse the condominium for the $150 that it paid in CAT filing fees—effectively allowing the condominium to charge a monetary “fine” for the tenant’s infraction.

​​However, the CAT was of the view that the pickup truck was now “virtually in line with the pillar” which demarcated the boundary of the parking unit and, therefore, no further order was required from the tribunal. The CAT held at paragraph 14:

“It may not be ‘perfect’ compliance (that might require a vehicle shorter by several centimeters), or perhaps it is negligibly noncompliant, but it does show compliance with the intent of Article 4.5(a)”.

But in paragraph 13 of Islas, the CAT noted that “Compliance with the terms of the TSCC 2745’s governing documents is an obligation of owners and their tenants” – and clearly, even the photographs appended to the CAT decision in Islas show that the tenant’s large pickup truck is still exceeding beyond the parking unit boundaries, in violation of Article 4.5(a) of the condominium’s declaration. Contrary to paragraph 16 of Islas, there clearly still is no “compliance with the declaration” here, as Article 4.5(a) of the Declaration is explicitly clear that no “portion of any motor vehicle” may “protrude beyond the boundaries of the Parking Unit”.

The courts of Ontario have repeatedly held that the provisions of a condominium’s declaration are not required to be “reasonable” like a condominium’s by-laws or rules are, and that a unit owner of a condominium is entitled to expect that the other owners will be held to comply with the provisions of the declaration.

If, for example, a potential purchaser was aware of the requirement in Article 4.5(a) of the declaration that their vehicle must not exceed the parking unit’s boundaries, then that unit owner might have deliberately chosen to purchase a more expensive parking unit with larger dimensions to wholly fit their vehicle—to ensure that there would not be “any portion” of the vehicle which protruded out, in violation of the declaration.

Now, with the CAT’s ruling in Islas, that unit owner might be wondering why they even bothered paying for a larger parking unit; when they could have just bought a smaller parking unit instead, parked their large vehicle which exceeds the parking unit’s boundaries by “several centimeters”, and asked for forgiveness later.

The CAT itself has previously held in Essex Condominium Corporation No. 25 v. Ferrari et al., 2021 ONCAT 79 (Ferrari), that a unit owner’s choice of a large pickup truck which does not fit inside the underground parking garage does not mean that the unit owner can consequently violate the condominium’s governing documents and park their truck however they want. In Ferrari, the tribunal held:

“The fact that large pick-up trucks might now be a vehicle of choice for a large portion of the population does not make the Rule unreasonable; nor does the fact that the Rule has remained unchanged for 30 years. The Respondents would have been aware of the size of the parking spots assigned to them when they purchased their units and, thus, would have been aware of the size of the vehicle that could fit in their designated spot. If they owned or chose to purchase a vehicle that did not fit into the spot, this was their choice. […] While the Rule may be very inconvenient for owners who do have a large truck, I conclude that it is not unreasonable.”

Despite Ferrari being referenced on multiple occasions by the condominium (represented by myself) in the correspondence and the evidence submitted to the CAT in Islas, the tribunal’s final decision in Islas makes no reference to the Ferrari case.

So, what is the appropriate middle ground here, according to the CAT? How fast is too fast to bring an enforcement matter to the tribunal, and how far can a vehicle protrude out from the physical dimensions of a parking space before it is no longer merely “negligibly noncompliant” in the eyes of the CAT?

In Verstova, the CAT held that the condominium did not proceed quickly enough to the tribunal. In Islas, the CAT suggested that the condominium could have perhaps slowed down.

In Ferrari, the CAT held that just because a large pickup truck cannot physically fit within the parking garage’s dimensions, that does not mean the vehicle can be parked in violation of the condominium’s governing documents. In Islas, the CAT ruled that a large pickup truck which does not physically fit inside the dimensions of the parking unit could still be parked in violation of the declaration.

Maybe like Goldilocks at the home of the Three Bears, it might take multiple attempts of chair-sitting, porridge-eating, and bed-sleeping to figure out where that elusive middle-ground lies.

Victor Yee is a condominium lawyer and litigator at Elia Associates, a law firm that specializes in condominium law. Victor has successfully represented clients at all levels of court in Ontario, in various tribunals throughout the province (including the CAT), and in condominium-related mediations and arbitrations. He can be reached via email at [email protected].