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January 08, 2019 Jonathan H. Fine

Oppression In Condominium Law

The concept of what amounts to the legal concept of “oppression” is widely misunderstood.  In a nutshell, oppression means the unfair disregard of someone’s rights.  Note that in Ontario law the mere disregard of someone’s rights is not enough – the disregard must be unfair.

In The Courthouse Block Inc. v. Middlesex Condominium Corporation No. 173 2011 CarswellOnt 6210, 2011 ONSC 3893, a commercial unit owner, the owner of 35 commercial units in a mixed use complex, experienced 153 instances of water leakage over many years of ownership, some of which caused substantial damage and disruption of the businesses of various tenants.

The judge found that although the condominium corporation was slow to act, it had now taken steps to seriously address the unit owner’s concerns and that there was a plan in place to do so. 

The judge was not prepared to second guess the actions of the board of directors and found it persuasive that the board of directors was required not only to consider this unit owner’s rights, but also those of the 255 residential condo unit owners.  The judge found that the rights of the residential unit owners were not preferred over the rights of the commercial unit owners and that there was no oppression.

In Weir v. PCC 485 2017 CarswellOnt 16292, 2017 ONSC 6265, the unit owner, Ms. Weir experienced a water leakage problem.  The Application Judge described the situation as follows;

4      The problem persisted for almost two years, despite extensive investigation and attempts at remediation. During that time, Ms. Weir was unable to use her solarium. She hesitated to go out when it was raining for fear that water would seep into the solarium unabated. If she was out when it began to rain, she would stop what she was doing and rush home.

The leakage problem was solved after about two years, but the source of the leaks was never conclusively identified.

The court also held, among other negative findings concerning the condominium corporation’s conduct that:

  • at times, the condominium corporation’s actions were heavy handed and counter-productive.
  • that the Corporation should have been more proactive and diligent in its communications with Ms. Weir about its plan of action, the status of its investigation, and the progress of any requisite repair work.
  • that the condominium corporation was guilty of intimidating conduct by demanding that she pay, during the course of the litigation, about $45,000 for professional fees incurred by the condominium corporation.

Ms. Weir sued the condominium corporation for oppression and for various damages

Here is the other side of the story and an explanation as to why she was not successful

In defence of the condominium corporation, condominium litigator Jonathan Fine of Fine & Deo did two things that were critical:

  1. insisted that the condominium corporation retain is engineer to find a solution to the problem, hopefully prior to the hearing date
  2. prepared a chronology which demonstrated that the condominium corporation had made about 30 attendances, 15 of which were by engineers who conducted various tests and filed reports

As it turned out, the problem was that this was a tricky problem to solve – originally, the engineer concluded after extensive testing including tests replicating rain storm conditions, that Ms. Weir was leaving her sliding widows open and the water leaked through the open windows. Subsequently it was determined that there were actually two leakage entry points. Finally, certain repairs were made to the roof and the leakage stopped. It was significant that there hadn’t been a leak for the three months prior to the hearing.

In supporting her decision that there was no oppression, the judge held:

  • There were no protracted periods of complete inaction and the Corporation acted on the professional advice it received.
  • After retaining engineers to investigate, the condominium corporation implemented the engineer’s recommendations to try to correct the problem.
  • The condominium corporation:
    • retained contractors to perform sealant repairs in September 2015 and November 2015.
    • conducted water testing after each of these repairs to assess their effectiveness.
    • expended considerable resources trying to diagnose the problem, it also took a variety of concrete steps to attempt to rectify the problem.

In conclusion, the judge found that that the Corporation satisfied its duty to maintain and repair the common elements. i.e. It did all that it could reasonably be expected to do.

The delay in resolving the problem was due to the complexity of the maintenance issue and circumstances beyond the Corporation’s control.

Despite the criticisms of the condominium corporation’s conduct, it did not amount to “oppression”.

In short, the Corporation’s conduct was not the type of harsh, vindictive, and abusive behaviour that would ground an oppression remedy and was not so egregious as to constitute oppression or unfair prejudice to Ms. Weir and it did not unfairly disregard her interests.

What Is The Lesson To Be Learned

  • Condominium corporations must respond quickly and diligently to complaints about leakage.
  • Unit owners can expect that condominium managers will act reasonably.
  • The fact that a problem is difficult to solve doesn’t translate to oppression.
  • A condominium corporation is not an insurer.Its responsibility “is to do all that can be reasonably done in the way of carrying out their statutory duty and therein lies the test to be applied to their actions. Should it turn out that those they hire to carry out work fail to do so effectively, the defendants cannot be held responsible for such as long as they acted reasonably in the circumstances…”.
  • How your lawyer frames your case is important – in this case claiming as oppression was the wrong way to go – Ms. weir should have sued for an order to repair.

On top of all of this, Ms. Weir was ordered to pay the condominium corporation $10,000 of court costs.

Read more here.

Jonathan H. Fine

Jonathan H. Fine Partner

B.Sc., J.D., F.C.C.I.

jfine@finedeo.com
905.760.1800 x226
905.760.0050

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