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.
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