A recent Ontario decision set out a condo corporation’s repair and maintenance obligations towards its unit owners.
A unit owner in a condominium corporation lived on the top floor of a 15-storey building. She bought her unit in August of 2009.
In April 2014, the unit owner notified the property manager of the condo corporation in writing that she was being disturbed by noise. She said she had made an earlier, oral complaint that had been ignored.
The unit owner informed the property manager that she could hear a vibrating noise, like a loud fan or a slow motor running above her unit. She said that it caused a great deal of discomfort. Though she had moved into the condo in 2009, she said that she did not notice the noise until 2013.
The unit owner claimed she was particularly susceptible to noise and vibrations because of a car accident.
In July 2019, the condo corporation replaced two exhaust fans above the owner’s unit. The unit owner said that although this did not solve the problem entirely, it reduced the noise to a tolerable level.
Subsequently, the unit owner made a claim against the condo corporation.
First, the unit owner claimed that by failing to replace the two fans above her unit until 2019, the condo corporation failed to comply with its obligation to repair and maintain the condominium’s common elements for more than five years.
Second, the unit owner claimed that the condo corporation’s conduct in response to her noise complaint was oppressive and unfairly prejudicial and that it unfairly disregarded her interests, entitling her to an oppression remedy under s. 135(2) of the Condominium Act (the “Act”). The unit owner argued that the condo corporation ignored her, refused to believe her and deliberately delayed responding to her complaints.
The court acknowledged that under the Act, a condominium corporation has a statutory obligation to repair and maintain the condominium’s common elements. However, the court also stated that a condominium corporation is not an insurer and does not have a duty to address every problem reported by a unit owner, regardless of its cause.
In this case, the court was not satisfied that any noise generated by the fans had been caused by a failure to repair or maintain them. It found that there was evidence that the fans were inspected and maintained on a regular basis.
Additionally, after the unit owner brought her concerns to the attention of the corporation’s property manager, the fans were inspected specifically with a view to identifying the source of the sound she was hearing. Several initial inspections did not find any cause for the noise.
The court explained that the standard to be met by a condominium corporation when repairing and maintaining its common elements is one of reasonableness. In this case, the court found that: (1) the two fans had been inspected and maintained by a contractor on a routine basis; (2) the two fans were examined on several occasions in a targeted manner to determine if they were causing the noise the unit owner was hearing; and (3) although the unit owner argued that a failure to repair and maintain the fans had caused the offending noise, in October 2018, she reported that the noise did not go away after the maintenance recommended by a mechanical engineer had been carried out.
As a result, the court found that the noise the unit owner complained of was not caused by any failure on the part of the condo corporation to repair or maintain its common elements.
Regarding the unit owner’s claim for oppression, the court explained that a condominium corporation is not expected to be perfect; rather, it is expected to act reasonably. Additionally, when repairing and maintaining common elements, a condominium corporation must consider the interests of all unit owners and must strive to achieve the greatest good for the greatest number. Finally the court stated that a unit owner seeking an oppression remedy under theAct must show both that there was a breach of their reasonable expectations and that those reasonable expectations were breached by conduct legitimately characterized as oppressive.
In this case, the court found that the condo corporation acted reasonably and in compliance with these obligations and did not act toward the unit owner in a manner that was oppressive or unfairly prejudicial or that unfairly disregarded her interests.
As a result, the unit owner’s application was dismissed.
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