Tribunal decision · Ontario CAT

York Condominium Corporation No. 444 v. Ryan

2023 ONCAT 81 · June 16, 2023 · Notice upheld

TL;DR

ONCAT enforced YCC 444's governing documents against unit owner Joanne Ryan, whose 18-month campaign of shouted insults, doorway postering, and persistent abusive emails directed at a neighbouring smoker and at the corporation's staff was found to be a nuisance, annoyance and disruption. Member Sanford resolved an important jurisdictional question: harassment per se is not a tribunal-jurisdiction nuisance under s.117(2) of the Ontario Act, but harassing CONDUCT can fall within tribunal jurisdiction where it also amounts to nuisance, annoyance or disruption under the corporation's governing documents. The case maps out a two-step test: (1) does the rule address activities that are nuisances/annoyances/disruptions, and (2) does the conduct in fact and law constitute a nuisance/annoyance/disruption? It costs the respondent $9,127.57 in pre-tribunal enforcement costs + $1,130 in proceedings costs + $200 in filing fees.

Why this matters for Alberta owners

TL;DR: 'There's no harassment bylaw, so they can't enforce against me' is wrong. Member Sanford in YCC 444 v. Ryan resolved the jurisdictional question directly: harassment per se is not a tribunal-jurisdiction nuisance, but harassing CONDUCT that also amounts to nuisance, annoyance or disruption under the corporation's broader rules IS within tribunal jurisdiction — and will produce real enforcement orders with real costs against the offender. Ms. Ryan was ordered to cease and desist + reimburse the corporation $10,457.57 across three cost categories. The Alberta CDRT applies the same two-step framework: does the bylaw cited regulate nuisance-style conduct, and does your actual conduct fit. "Free speech" is not a defence — at paragraph 46, Member Sanford held that condominium community living requires compromises that the free-speech right cannot override.

The facts. Joanne Ryan owned a unit at York Condominium Corporation No. 444. She lived directly across the hall from Christine Powell, who was a smoker. Smoking inside individual units was not banned at YCC 444 — but transmission of smoke or odour from one unit to another (constituting an annoyance/nuisance/disruption) was. Ms. Ryan, citing serious health risks to herself and her daughter, embarked on what became an 18-month campaign of self-help: shouting insults across the hall ("trailer trash," "idiot," "stupid bitch," "disgusting"), 62 documented incidents of yelling between May 2021 and October 2022, hostile notices posted on Ms. Powell's door (some addressed to the police and Children's Aid Society), defacing Ms. Powell's children's babysitting advertisement on a common bulletin board, hanging sheets over her own door with explanatory notices, and persistent abusive emails to the corporation's manager, on-site supervisor, and legal counsel.

The jurisdictional puzzle Member Sanford had to solve. YCC 444 initially framed the case as a generic nuisance/annoyance/disruption dispute. But in closing submissions both parties shifted to framing it as a harassment case. Harassment is not a prescribed nuisance under s.117(2) of the Ontario Act, and s.117(1) (conduct likely to cause injury or property damage) is expressly excluded from tribunal jurisdiction. So could the tribunal hear a harassment case at all?

Key holding

The two-step test Ryan establishes. Member Sanford's reasoning at paragraphs 13-17 produces a workable doctrine: the tribunal CAN hear what is effectively a harassment dispute, provided that (1) the corporation's governing documents prohibit conduct that's a nuisance, annoyance, or disruption (most do, in some form), and (2) the actual conduct alleged amounts to a nuisance, annoyance, or disruption under the Antrim Truck Centre legal test (substantial AND unreasonable, with frequency-and-duration). At paragraph 17: "The rule relied on must address activities that are nuisances, disturbances or annoyances or the matter is potentially outside the Tribunal's jurisdiction. Beyond that, it is not necessary that the rule use those specific words. It is sufficient if it is found that Ms. Ryan's conduct: a) violates the rule and b) is in fact and law a nuisance, annoyance or disruption."

The key disclaimer. Member Sanford was careful at paragraph 36 to distinguish harassment-as-nuisance (within jurisdiction) from harassment-as-serious-injury-or-threat (outside jurisdiction, falls under s.117(1) for the courts). On the Ryan facts, the Member found at paragraph 36 that "Her comments tend towards the sarcastic, demeaning and abusive rather than towards violent threats" — within the nuisance/annoyance/disruption bucket, not the injury bucket. If the conduct had crossed into threats of physical violence, the tribunal would have lost jurisdiction back to s.117(1) and the parties would have been routed to Superior Court.

The free-speech argument was rejected. Ms. Ryan argued that her actions were free speech directed at exposing a public-health issue. Member Sanford rejected this at paragraph 46: "Ms. Ryan's submission that her actions are an exercise in free speech ignores the fact that the communal nature of condominium living requires some compromises. Condominium rules must be complied with for the good of the overall community. Ms. Ryan may not rely on her rights of freedom of speech to excuse the nuisance, annoyance and disruption she has created." This matters for Alberta owners considering similar self-help tactics: the Canadian Charter protects speech against state action; condominium rules are private-community contractual arrangements that the Charter does not cleanly override.

The ironic detail. Member Sanford found at paragraph 28 that it was not even clear Ms. Powell's smoking was actually the source of the smoke Ms. Ryan was reacting to. On at least two documented occasions Ms. Ryan complained of smoke when Ms. Powell was at work or on vacation. The corporation's smoke-migration testing showed smoke from Ms. Powell's unit penetrating an adjoining unit (not Ms. Ryan's), and remedial work in fall 2021 produced clean follow-up testing. This is the deeper lesson: even where you genuinely believe you have a legitimate complaint, the self-help that follows can far exceed the seriousness of the underlying issue — and the corporation will be able to enforce against the self-help.

Why this matters in Alberta. Alberta condominium declarations almost universally include a broad behaviour clause: no conduct that unreasonably interferes with the use or enjoyment of common elements or other units. That language is functionally identical to YCC 444's Rule C.2. Under section 35 of the Condominium Property Act, the CDRT has jurisdiction over disputes about provisions in the governing documents that prohibit, restrict, or otherwise govern nuisance/annoyance/disruption. The Ryan two-step test ports cleanly: (1) does the bylaw cover nuisance conduct (yes), (2) does your actual conduct amount to nuisance under the Antrim test (assess against frequency/duration/substantial/unreasonable).

Action steps for owners

How to use Ryan if a fine notice has been issued for harassment-style behaviour — five steps. (1) Find the bylaw provision the notice cites. It should be a broad nuisance/annoyance/disruption clause. (2) If the bylaw is narrowly written and only covers specific named conduct (smoke, noise, pets) that doesn't include your behaviour, raise the bylaw-scope defect (see Cycleworx pattern at /tribunal-decisions/2024-oncat-127). The Ryan jurisdiction-extension only works for broad rules; narrow rules still get strict-text readings. (3) Apply the Antrim test to your alleged conduct. Substantial? Unreasonable? Frequent? Persistent? If one or more components fail, raise the failure as a substantive defect. (4) Document any underlying provocation. Ryan herself was responding to what she believed was a genuine health risk — Member Sanford rejected the free-speech framing but did not impose punitive damages, in part because the underlying concern was genuine. Context that makes your conduct understandable (even if not justified) softens the cost award. (5) Free-speech / Charter arguments will not work. Don't rely on them as a primary defence — they failed in Ryan and they will fail at the CDRT.

The bottom line: 'there's no harassment bylaw in our declaration, so they can't enforce against me' is wrong as a matter of jurisdiction. Tribunals can enforce against harassment-style conduct under broad nuisance/annoyance/disruption clauses — and they will impose real cost orders when they do. Ryan is direct Ontario authority. Run FineCheck on the notice; if your conduct genuinely doesn't meet the Antrim nuisance threshold, raise that as a substantive defence; if your conduct DID meet the threshold, settle early — Occleston-style cost proportionality limits your exposure, but the costs are still real.

What the tribunal said

Selected excerpts from the Ontario CAT's reasoning. Full decision on CanLII.

[13] Considering harassment in particular, it can be both a tactic or form of conduct and it can also be an end. For example, a person may attempt to harass by engaging in conduct that is a nuisance or annoyance or disruption. In that case, if the conduct falls within subsection 117 (2) or subsection 1 (1) of Regulation 179/17, then the Tribunal would have jurisdiction over the dispute. Looking at the wording of the two subsections, the dividing line is the likelihood of physical injury, illness or damage to property. Subsection 117 (1) is designed to deal with conditions and conduct that are likely to have more serious consequences than a nuisance, annoyance or disruption. [16] I conclude that harassment can include conduct that is a nuisance, annoyance or disruption. While harassment is not a prescribed and prohibited activity under subsection 117 (2), harassing conduct may be prohibited in the governing documents of a condominium. Depending on the wording of the provision and the actual conduct in issue, the conduct may fall within the Tribunal's jurisdiction. [17] ... The rule relied on must address activities that are nuisances, disturbances or annoyances or the matter is potentially outside the Tribunal's jurisdiction. Beyond that, it is not necessary that the rule use those specific words. It is sufficient if it is found that Ms. Ryan's conduct: a) violates the rule and b) is in fact and law a nuisance, annoyance or disruption. [46] Ms. Ryan's submission that her actions are an exercise in free speech ignores the fact that the communal nature of condominium living requires some compromises. Condominium rules must be complied with for the good of the overall community. Ms. Ryan may not rely on her rights of freedom of speech to excuse the nuisance, annoyance and disruption she has created.

Connects to FineCheck's framework

Got a similar Alberta condo fine? A FineCheck report applies the same substantial-compliance + prejudice framework the tribunal used here. $15. Run a check on your notice →

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: June 16, 2023 · Citation: 2023 ONCAT 81 · Outcome: notice upheld. FineCheck's commentary is published for research and educational use; not legal advice. Verify any reliance on this decision against the original text.