Court of Appeal Delivers its Decision in the McMahon Hot Tub Case
Posted on December 10, 2009 at 02:05 PM
Click here for the complete decision.
In this case, the Court of Appeal dismissed the condominium corporation’s appeal, and held that a hot tub which had been installed on an exclusive use common element patio was not an “addition, alteration or improvement” under section 98(1) of the Condominium Act, 1998 (the “Act”).
The Court of Appeal agreed with the analysis from the lower court, but also stated that there will be cases where a different approach is required, and that each case will be decided on its own facts. It also approved of the lower court’s use of dictionary definitions as a starting point for interpreting the Act.
In this case, there was a rule in the condominium corporation which prohibited a wide variety of items on the common elements, but did not mention hot tubs. The court seemed to suggest that if the rule in question had prohibited hot tubs, then the case could have been decided differently.
As well, the condominium corporation is responsible for ensuring that the common elements are safe. What if somebody is injured as a result of this hot tub? Is it fair that all of the unit owners share this liability when they have no control over how the hot tub is operated? One of the features of a section 98 agreement is that it would have allowed the condominium corporation to shift this liability onto the unit owner who installed the hot tub. Surprisingly, the court did not even mention this issue.
Please feel free to share your thoughts and post a comment.
McMahon Hot Tub Case
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Name: K Shorting, December 18, 2009 at 09:52 PM
My condominium Board has recently decided to allow the unit owners to enclose their balconies as stipulated under Section 98, Subsection(2), of the Condo Act. I was surprised how much power has been granted to condominium Boards to allow huge changes to the exclusive use areas of a building without any consultation with the owners in general. The hot tub decision surprises me in the reverse. In that case, the decision seems to have rendered the Board powerless to stop a change to an exclusive use area of the common elements. On the one hand, the Board can allow anything it likes, and on the other, it is powerless to stop anything but a major structural change. Under this ruling, my fellow unit owners could install an enclosure without Board permission, without going through the expense of registering the enclosure on title, and without any agreement in place as long as the enclosure was not "permanently" affixed to the railing. These enclosures can easily be removed by two people in less than an hour without special tools and therefore are not "permanent" as defined in the hot tub decision. Section 98 has accomplished a mirror image of a Catch-22. Condominium Board members have the right to allow darn near anything, and homeowners can do almost anything they like. Section 98, Subsection (2), should be removed or changed to bring back into force the requirements under Section 97. Homeowners and Board Directors, both need the right to object.
Name: K Shorting, December 18, 2009 at 10:08 PM
And yet, in the case of Peel Condominium Corp. No. 283 v.
Genik (Ontario Superior Court)(June 27, 2007), the court ruled that a satellite dish must be removed because the owner had not received the Board's permission under Section 98. I guess the owner in question should remove the satellite dish and install a hot tub instead.