An Alberta court recently dismissed an action by a condo board against the unit owners for building a rooftop structure because it failed to act within the statutory time limits for starting its claim.

Apartment Owners Modify Building Without Permits

In 2006, the owners of an apartment in a walk-up apartment building cut a hole through the roof of their top-floor apartment and installed a spiral staircase leading up to a den-loft balcony room which they had constructed. However, no development or building permits were obtained prior to construction of the rooftop structure.

Later that same year, the apartment building became a condominium complex. When the condominium plan was drawn up, it did not include the owner’s modifications to their apartment. No one objected to the modifications and an after-the-fact development permit was issued by the City of Edmonton in 2009.

Condo Board Sues Owners Over Structure

In 2016, however, the condo board met to discuss the owners’ situation. They commissioned an engineering report that showed that the structure exceeded the load-bearing capability of the roof, which was causing it to sag. The board then passed a resolution and filed a statement of claim on October 21, 2016 to recover possession of the roof plus the remediation costs associated with returning the roof to its original condition.

However, the possession issue soon became moot because the board was ordered by the City of Edmonton to remove the rooftop additions and the work was completed on July 17, 2018.

The board nonetheless continued its claim against the owners for the expense of the removal and remediation. Additionally, it sought special damages of up to $125,000 as set out in its 2016 statement on claim.

In response, the owners argued that it was too late for the special damages claim and that what remained of the lawsuit should be dismissed.

In turn, the board argued that its claim was based on a continuing trespass and that the cause of action accrued day-to-day and was therefore not out of time.

The Law on Limitation Periods

The relevant provision at issue in the case is found in s. 3(1)(a) of the Alberta Limitations Act which provides as follows:

3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within

(a)   2 years after the date on which the claimant first knew, or in the circumstances ought to have known,

 (i)         that the injury for which the claimant seeks a remedial order had occurred

(ii)      that the injury was attributable to conduct of the defendant, and

(iii)      that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding…

…the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

Court Dismisses Action by Condo Board for Being Out of Time

The court began by explaining that the onus fell on the condo board to prove that it had commenced its claim within the statutory time limits. The court found that it had not, stating:

“On these facts, the limitation for all except the recovery of land would have expired some time in late 2008 or possibly into 2009: roughly eight years before the action was started. The engineering report in 2016 that the structure exceeded the load-bearing capacity of the roof does not restart the clock. It merely provides evidence of damages in addition to those already suffered.”

Additionally, the court noted that it had been up to the board to either remove or approve the owner’s structure. It held that the time for dealing with the issue had started at the earliest with the registration of the condominium plan or, at the latest, from the appointment of the board.

Moreover, in response to the board’s claim of continuing trespass, the court explained:

“The Limitations Act requires not only an injury to start the limitations clock but reasonable knowledge of the injury; all of which is two steps removed from what it would take to start the limitations clock for a contract action in a cause-of-action based limitations regime. While it may be theoretically correct to say that a cause of action in trespass accrues day-to-day, and while a cause of action is a prerequisite for a claim, this is not determinative of the time for an action under the present limitations regime….

I agree that the continuing nature of the trespass, which started in 2006, does not extend the claim for damages in an open-ended way until the trespass is abated. What matters is the coincidence of the three elements in s 3 of the Limitations Act, all of which were present in 2006.”

In the result, the court therefore found that the board had filed its statement of claim outside of the statutory time limits and dismissed its action.

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