Condo Law Digest – May 2013

Welcome to the first of what I intend to be a monthly feature - a digest of some condo law cases from the previous month or so.

Harvey v. Elgin Condominium Corporation No. 3, 2013 ONSC 1273
Decision Date:  March 4, 2013

Each unit in this townhouse complex has a garage with a rooftop deck.  Several unit owners complained of water leakage in and around the decks.  The corporation commissioned an engineer’s report which detailed extensive structural flaws in the design of the decks and the need for repair. Mr. Harvey, one of the unit owners, charged that the repairs were not necessary in the first place, that they constituted “substantial changes” (and so required approval by 2/3 of the unit owners), and finally that the special assessments levied against owners to pay for the repairs were “oppressive”.  He sought to have the work stopped and the levies returned, and he sought punitive damages for the harm allegedly done to his credit rating when the corporation placed a lien on his unit to enforce the levy. Mr. Harvey was not represented at the trial.

Justice Leach dismissed Mr. Harvey’s action and his claim for punitive damages.  He found that the board’s decision to repair all of the decks had been well-founded.  The repairs did not constitute substantial changes, but rather fell within the definition of remedial work under s. 97(1) of the Condominium Act.  He rejected Mr. Harvey’s request for an oppression remedy, noting that the meanings of “oppressive,” “unfair” and “prejudicial” in the legal context differ from their ordinary language meanings. (Justice Leach referred here to Walia Properties Ltd. v. York Condominium Corporation No. 478).  He did not make any decision regarding costs.

Comment: Owners are well-advised to consult with a lawyer before commencing any action against a condominium corporation.



Kong v. Toronto Standard Condominium Corporation No. 1959, 2013 HRTO 687
Decision Date: April 24, 2013

On August 31, 2011 Ms. Kong and the corporation reached an agreement with respect to an application with the Human Rights Tribunal of Ontario.  The corporation agreed to caulk and seal the outside of the window of Ms. Kong’s suite, and to reimburse her for up to $3500 for the cost of repairs and other changes to her unit to improve air quality.  Ms. Kong filed an Application for Contravention of Settlement, charging that the window repairs had not been done to her satisfaction because she continued to be bothered by the presence of second-hand smoke in her unit. Furthermore, she had not been reimbursed for the repairs to her unit.  The corporation argued that no timeline for reimbursement had been set out in the original agreement.

The Adjudicator dismissed the Application for Contravention of Settlement, but directed the corporation to reimburse Ms. Kong immediately.  Although no timetable for reimbursement was specified, a standard of reasonableness was implied. The Adjudicator found that the corporation had fulfilled the agreement by caulking and sealing the window.  The written settlement did not assure or guarantee that the presence of all second-hand smoke would be eliminated.