Carleton Condominium Corporation No. 132 v. Evans
2022 ONCAT 97 · September 9, 2022 · Notice voided
ONCAT was a mixed-result case: the corporation lost its claim that the respondent's parking conduct breached two specific parking rules (the rules didn't actually cover the conduct), but won on a finding that the same conduct constituted nuisance under a broader declaration provision. The case is most useful for its statement of the legal nuisance test, imported from the Supreme Court of Canada's Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 framework: nuisance requires substantial and unreasonable interference, with frequency-and-duration components, and trivial or isolated conduct will not qualify. Vice-Chair McQuaid's nuisance analysis is now cited across the ONCAT corpus by virtually every smoke, noise, odour, and behaviour-based enforcement case.
Why this matters for Alberta owners
TL;DR: "Nuisance" is a legal term with a specific test, not a generic synonym for "behaviour I don't like." Vice-Chair McQuaid in Carleton Condominium Corporation No. 132 v. Evans pulled the test directly from the Supreme Court of Canada's leading case (Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13) and applied it to a condominium nuisance allegation: interference must be substantial AND unreasonable, with a frequency-and-duration component, and trivial or isolated conduct will not qualify. The Alberta translation: if your fine notice cites a nuisance-style bylaw, the corporation must prove conduct that meets the Antrim test — not just conduct that annoyed somebody. "Unpleasant" and "obnoxious" don't get there.
The facts. Ross Evans owned a townhouse unit at Carleton Condominium Corporation No. 132. The corporation alleged a pattern of inappropriate conduct that fell into two buckets. First: a parking dispute. Evans began parking his car aggressively to block the corporation's contractor from using the area next to his unit as a snow-storage site — a site he claimed was damaging his foundation. The corporation had to truck snow off-site at an extra cost of $3,390. Second: a series of social incidents — kicking a pylon on his own driveway after a frustrating exchange with a neighbour, harassing emails to and about the same neighbour, intermittent uncomfortable interactions on the common elements. The corporation sought enforcement under three different theories: two parking rules + the declaration's nuisance provision + cost indemnification.
What the tribunal held — the parking rules did not apply. The corporation tried to enforce Rules 16 (no obstructing sidewalks/walkways/driveways used in common) and 18 (no parking non-passenger vehicles, no driving outside the parking space). Vice-Chair McQuaid rejected both at paragraphs 15-17: Evans was parking his own vehicle in his own driveway (not in a driveway used in common), and the rule about driving applied to driving the vehicle, not parking it. The Member found 'the rules cited by CCC132 ... are not provisions relevant to this case' — based on the particular facts. This is the Cycleworx pattern — the corporation tried to stretch specific rule text to cover conduct it didn't actually describe, and the tribunal refused.
What the tribunal held — nuisance under the declaration was made out, but only for the parking conduct. This is where the Antrim test enters condominium analysis. At paragraph 20, in the absence of a definition of nuisance in the declaration, the Member turned to the common-law test: "To support a claim of nuisance, the interference must be substantial and unreasonable; the requirement for substantial interference can incorporate a component of frequency and duration of the interference". The Member added that a 'trivial' interference will not suffice to support a claim in nuisance. The footnote cites Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, at paragraphs 19 and 26.
Applying the test to the Evans facts. The parking conduct met the test: Evans's deliberate obstruction of snow removal forced the corporation to incur off-site storage costs that all other owners had to share through common expenses. Frequency: repeated throughout winter 2021-2022. Duration: months-long. Substantiality: $3,390 in real cost. Unreasonableness: the corporation had offered Evans a workable alternative (park in his garage). All three Antrim components satisfied — nuisance under Article IV of the declaration established.
The pylon-kicking conduct failed the test. At paragraph 27: "The kicking of the pilon on his own driveway may have been an over reaction to a situation, but conduct that is nuisance behavior, it is not. It was both trivial and an isolated incident." Single event + on his own driveway + minor — Antrim threshold not met.
The harassment-style conduct also failed. At paragraph 28: "Unpleasant and obnoxious behaviors ... are not in themselves a breach of provisions of a declaration or rules such as are before me" and "these incidents are, as the witnesses testified, intermittent and not a consistent and recurring pattern of conduct." Intermittent + uncoordinated + no recurring pattern — Antrim threshold not met.
Why this matters in Alberta. Alberta condominium bylaws routinely use the terms 'nuisance', 'annoyance', 'disturbance', or 'unreasonable interference' as the operative language in behaviour-based rules. Without a bylaw-specific definition, the courts apply the same common-law nuisance framework — substantial AND unreasonable, with frequency-and-duration. CPR s.73.7(e) requires the Proposed Sanction notice to identify the specific bylaw allegedly contravened; if the notice cites a nuisance-style provision, the corporation has to prove conduct that meets the Antrim test, not just conduct that annoyed someone. 'You're being unpleasant in the lobby' doesn't get there. 'You repeatedly slammed doors past midnight for six months despite three warnings' does.
The bottom line: "nuisance" is not a generic complaint label — it's a legal test with three components, all of which the corporation has to satisfy. Vice-Chair McQuaid's Evans decision is the cleanest condominium authority for that proposition, and the Antrim test it imports is binding common law across Canada. Run FineCheck on the notice; if it relies on a nuisance bylaw, flag whether the conduct described actually clears the Antrim threshold.
What the tribunal said
Selected excerpts from the Ontario CAT's reasoning. Full decision on CanLII.
[20] Given that, as CCC132 acknowledges in submissions, the Respondent's conduct about which it is complaining does not clearly fall within the prescribed categories of nuisance set out in s. 117 (2) of the Condominium Act, 1998 (the 'Act') and Ontario Regulation 48/01 and there is no definition of nuisance in its declaration and rules, it is instructive to consider the well-established jurisprudence on the law of nuisance. To support a claim of nuisance, the interference must be substantial and unreasonable; the requirement for substantial interference can incorporate a component of frequency and duration of the interference. A 'trivial' interference will not suffice to support a claim in nuisance. [27] The kicking of the pilon on his own driveway may have been an over reaction to a situation, but conduct that is nuisance behavior, it is not. It was both trivial and an isolated incident. [28] Unpleasant and obnoxious behaviors may well be rampant within condominium communities from time to time, but they are not in themselves a breach of provisions of a declaration or rules such as are before me. Further, these incidents are, as the witnesses testified, intermittent and not a consistent and recurring pattern of conduct. [41] It is rare that full indemnity for legal costs is awarded.
Connects to FineCheck's framework
Jurisdictional note: Ontario CATdecisions are not binding on Alberta's CDRT, but the CDRT will look to other Canadian condo tribunals for guidance under analogous statutory provisions until its own case law develops. The substantial-compliance + prejudice framework used in this decision parallels the test in CDRT Policies and Procedures s.7(b).
Decision date: September 9, 2022 · Citation: 2022 ONCAT 97 · Outcome: notice voided. FineCheck's commentary is published for research and educational use; not legal advice. Verify any reliance on this decision against the original text.