In Canada’s major cities, condominium living has become an attractive way to live in a downtown core without incurring the expenses or the responsibilities that often come with single family home ownership. While this is a great benefit, it can also lead to trouble when repairs are needed for a condo, but the owner has to rely on the condo corporation (the operators of the building) to make them. A recent decision from the Superior Court of Justice in Ontario highlights some of these risks.
The originating complaint
The case arose after the unit owner of a condo alleged the condominium corporation (“the corporation”) of failing to meet its statutory obligation to maintain and repair common elements, and acted towards her in a manner that was oppressive or unfairly prejudicial or that unfairly disregarded her interests.
In April 2014, the unit owner notified the property manager of the corporation that she was disturbed by noise coming from above her unit. The court described it as “a vibrating noise, like a loud fan or slow motor running above her unit.” She told the property manager it was causing her a great deal of discomfort.
The owner’s unit was located on the top floor of the building. She had purchased it in 2009, but did not hear the noise until 2013.
The court accepted evidence that the unit owner was especially sensitive to noise and vibrations as a result of a car accident.
By 2019 the corporation had replaced two exhaust fans above the unit, and although it did not solve the problem entirely, the unit owner said it reduced the noise to a “tolerable level.”
The unit owner’s perspective
The unit owner took the position that the corporation waited too long to replace the fans above her unit. She added that the corporation’s response to her complaint was “oppressive and unfairly prejudicial in that it unfairly disregarded her interests, entitling her to an oppression remedy under s. 135(2) of the Condominium Act, 1998, S.O. 1998, c. 19.”
She added that she had identified the source of the noise immediately, but the corporation took six months to even enter her unit to investigate, and more than two years after that to bring in a sound expert.
Did the corporation breach its duty toward the unit owner?
The court stated that at first blush it would appear the corporation waited five years to address the problem. With that said, the court accepted the corporation’s evidence that it had a difficult time identifying the cause of the problem. While the unit owner had identified the fans as a cause for the problem, even experts she hired could not find evidence to conclude the same.
The court found that even though the corporation replaced the fans, there was ultimately no evidence to suggest they were responsible for the noise in the first place.
While the court found the corporation’s conduct to have fallen far from perfect, it added that it isn’t required to act perfectly. The court wrote, “A condominium corporation is not expected to be perfect; it is expected to act reasonably. I consider the initial delay in responding to (The unit owner’s) complaint and the inappropriate wording of the superintendents’ memo to be isolated incidents which do not taint (the corporation’s) overall response to (the unit owner’s) concerns.”
As a result, the court dismissed the application.
Condominium disputes require legal advice from knowledgeable counsel with experience addressing such matters and who understands the complex condo industry. Contact HMC Lawyers to speak with a member of our Advocacy Team and get strategic and trustworthy advice. Call 1-800-480-3534 or contact us online. We represent clients in Calgary, the province of Alberta, and across Western Canada.