Learning from a tragedy - What amendments can be made to the Condominium ACT to protect the community
In the fast-paced world of condominiums where everything moves at the speed of Zoom, it takes something significant to stop the entire industry in its tracks. One such event occurred last December when tragedy struck a Vaughan condominium community when a resident went on a mass shooting spree resulting in five (5) individuals being killed and a sixth individual critically injured. The victims were either directors, former directors, and/or their spouses.
As the days passed and more information became available to the public, more questions arose than answers about how this tragedy could have been avoided arose.
While the behavior of the gunman was inexcusable, the state of his mental health, and more specifically lack thereof, sheds light on a gaping hole in the Condominium Act, 1998 and should serve to underscore the dire need for changes to the legislation. Specifically, there are currently no tools for Directors to address mental health issues within the community. While there is an obligation on directors to be mentally sound to serve on a condominium’s board, there is no reciprocal obligation mandated by the Condominium Act, 1998 on unit owners to own a unit or upon a resident residing therein. This is a glaring hole in the legislation.
The condominium itself was embroiled in a multi-year dispute with the gunman where it was seeking the forced sale of his unit. However, there should be an alternative way to prevent these situations from becoming draconian. The current system does not address the root concerns, instead prompting the escalation of pressure that a condominium can put on an owner via repeated enforcement of prior bad behaviour. A particular challenge is that during the many years that litigation typically takes, the litigants continue to live under the same roof. This is a unique feature in condominium disputes as most litigation involves parties who live separately or apart.
This tragedy also highlights a phenomenon within residential condominiums whereby they are frequently being used as care homes for individuals whose family members are unable to care for them for a variety of reasons, including mental health. Sometimes these individuals live alone; other times with family members. In either situation, it remains that the condominium is forced to take on a portion of the burden and responsibility of caring for these individuals.
Section 117 of the Condominium Act and the Court’s interpretation of it have already confirmed that a condominium is statutorily required to address a scenario where an injury to an individual or damage to property could happen. It should not be a stretch to amend the legislation to empower a condominium to seek a court order compelling a unit owner to have their capacity assessed to determine whether or not they understand the consequences of their actions and/or pose a risk of danger to themselves or others. This potential amendment would also support the condominium’s obligation under the Occupational Health and Safety Act to ensure its Directors and employees, which includes property management, are provided a safe work environment.
If the condominium and the Court were aware of whether the gunman had the capacity to deal with the legal issues with respect to ownership within the condominium community, perhaps this tragedy could have been entirely avoided.
What is being proposed is not novel or new. A few years ago, in Carleton Condominium Corporation No. 116 v. Sennek, which was a case that initially started off as a dispute with respect to a chargeback evolved into a case about whether the owner had the capacity to deal with her property. This is because there is already a provision in the Courts of Justice Act that enables a party to litigation to have their capacity assessed to determine whether they require a litigation guardian. However, what happens if the parties want to avoid litigation and simply deal with a dispute in a less escalated manner, which would be the better choice for all parties. This is where the proposed amendment to the Condominium Act, 1998 would come into play by enabling the condominium to go to court first to confirm whether the owner has the capacity to deal with their property and understand the consequences of their actions. If the owner is found not to have the capacity to deal with their property, then the court could appoint a trustee or litigation guardian to look after the interests of the Owner at a much earlier stage.
While an amendment to the Condominium Act, 1998 may not be the only solution it is something worth considering to help prevent further tragedies like the one in Vaughan from occurring again.