Durham Standard Condominium Corporation No. 259 v. McGee
2023 ONCAT 92 · July 17, 2023 · Notice upheld
ONCAT enforced Durham Standard Condominium Corporation No. 259's broad declaration provisions against a tenant whose conduct (urinating in common elements, smoking on the balcony, hostile encounters with neighbours) included behaviours not specifically named in the rules. Vice-Chair Clifton held that broad anti-nuisance/anti-annoyance language in the declaration extends to behaviours that 'reasonably invite description as nuisances or annoyances' even where the rules don't anticipate the specific conduct. The case is cited by 2024 ONCAT 169 (Meghan) for its interpretive approach to broad declaration provisions, and serves as authority that the bylaw-scope defence (the cited rule doesn't cover the alleged conduct) doesn't apply where a broad reasonableness-or-nuisance clause is engaged.
Why this matters for Alberta owners
TL;DR: Don't expect to escape enforcement by pointing out that the bylaw doesn't specifically name your conduct. Vice-Chair Clifton in DSCC 259 v. McGee held that broad anti-nuisance and anti-annoyance language in a declaration captures behaviours the rule never specifically anticipated — including unusual conduct like urinating in common elements, hostile encounters in hallways, or threatening interactions with neighbours. The case is the structural counterpoint to Cycleworx (strict-text reading of specific rules) and Douglas (ambiguity resolved against the enforcer): where the rule cited is itself BROAD and the conduct REASONABLY fits as a nuisance or annoyance, the rule's reach extends to cover it. The Alberta translation: a fine notice citing a broad behaviour-clause bylaw against unusual conduct may be enforceable even where no specific named provision matches your behaviour.
The facts. Durham Standard Condominium Corporation No. 259 brought a compliance application against an owner whose tenant had engaged in a pattern of conduct: smoking on a balcony in violation of a no-smoking rule, hostile and threatening interactions with neighbouring residents on the common elements, and — in one documented incident — urinating in a common-element corridor. The owner argued that not all of the listed conduct was actually prohibited by a specific rule of the corporation; in particular, urinating in common elements wasn't named anywhere.
What the tribunal held. Vice-Chair Clifton's analysis at paragraph 7, item 5 is the load-bearing reasoning. The Member observed: "urinating in the common elements and similar kinds of conduct are neither set out under sub-section 117 (2) of the Act nor specifically addressed in the condominium's declaration or rules. I daresay that it would be the unusual set of condominium documents that would refer to such behaviours specifically. Nevertheless, they reasonably invite description as nuisances or annoyances, at least, and I conclude that it is also reasonable to view them" as being prohibited by the declaration's broad provisions.
Where this differs from Cycleworx and Douglas. Cycleworx (see /tribunal-decisions/2024-oncat-127) involved a SPECIFIC rule with specific words — 'such motor vehicle' — that the corporation tried to stretch to cover conduct outside the rule's text. The tribunal refused. Douglas (see /tribunal-decisions/2022-oncat-20) involved an AMBIGUOUS rule whose ambiguity the corporation tried to resolve in its own favour. The tribunal refused. McGee is different: it involves a BROAD rule (anti-nuisance, anti-annoyance language in a declaration) and unusual conduct that fits comfortably within the rule's broad scope. The tribunal upheld enforcement.
The doctrinal structure these three cases produce. Three questions to ask about any fine notice that hinges on bylaw scope: (1) is the cited bylaw specific or broad? (2) if specific, does the alleged conduct fit within the words used (Cycleworx test)? (3) if broad, does the conduct reasonably fit within the bylaw's nuisance-or-annoyance scope (McGee test)? Specific rules get strict-text readings (good for owners). Broad rules get reasonable-description readings (often good for corporations). The corporation's choice of which rule to cite signals which framework will apply.
Why this matters in Alberta. Alberta condominium declarations and bylaws almost universally include broad behaviour clauses: no conduct that unreasonably interferes with the use or enjoyment of common elements or other units; no nuisance, annoyance, or disturbance to other owners; no conduct contrary to the peaceful enjoyment of the corporation. These broad clauses are precisely the McGee territory. CPR s.73.7(e) requires the notice to cite the specific bylaw allegedly contravened — and where the cited bylaw is a broad-behaviour clause, McGee establishes that the corporation isn't required to point to a more specific named provision.
But don't overread McGee. The Member at paragraph 7 wasn't endorsing pure tribunal-as-conduct-police reasoning. The Member required the conduct to be 'reasonably' captured by the broad language — i.e., reasonably described as a nuisance or annoyance. The Antrim test from Evans (see /tribunal-decisions/2022-oncat-97) — substantial AND unreasonable, with frequency-and-duration — still applies to evaluate whether the conduct meets the threshold for nuisance/annoyance. McGee says the broad-rule language reaches unusual conduct; Antrim says the conduct still has to clear the substantive bar.
The Meghan citation. The Meghan decision (2024 ONCAT 169 — see /tribunal-decisions/2024-oncat-169) cited McGee for this interpretive approach. The Meghan respondent had argued his conduct wasn't captured by the corporation's rules because the specific behaviours weren't named. The tribunal applied McGee to find that the broad behaviour clauses reached the conduct. The same logic will apply at the Alberta CDRT.
The bottom line: broad-behaviour clauses in declarations and bylaws do capture unusual conduct, even where the rule never specifically anticipated it. Vice-Chair Clifton's McGee decision is the cleanest Ontario authority. The bylaw-scope defence isn't always available — it depends on whether the cited rule is specific or broad. Run FineCheck on the notice; understand which type of rule was cited; calibrate your defence accordingly.
What the tribunal said
Selected excerpts from the Ontario CAT's reasoning. Full decision on CanLII.
Vice-Chair Clifton at paragraph 7, item 5: "urinating in the common elements and similar kinds of conduct are neither set out under sub-section 117 (2) of the Act nor specifically addressed in the condominium's declaration or rules. I daresay that it would be the unusual set of condominium documents that would refer to such behaviours specifically. Nevertheless, they reasonably invite description as nuisances or annoyances, at least, and I conclude that it is also reasonable to view them as being prohibited as such by the broad declaration provisions."
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: July 17, 2023 · Citation: 2023 ONCAT 92 · 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.