In MTCC 985 v. Chaney and Mackay 2015 ONSC 7124, two Toronto condo unit owners complained about cigar smoke infiltrating their unit. One issue in the case centered on the standard of care owed by the condominium corporation under Ontario law to the complaining unit owners – was the “fix’ required to be simply reasonable, or perfect.
The condominium corporation’s engineer gave evidence, which the judge accepted to the effect that:
- the state of air transfer between the units was reasonable given the age of the building and requirements of the building code when the building was built
- the building was performing as it should, given its age and design
- to complete the perfect repair, it would be necessary to tear out expensive finishes which would not be reasonable given the age design of the building and the effect on other unit owners
In his representation of the condominium corporation, condominium lawyer Jonathan Fine of Fine & Deo argued that the Corporation had acted reasonably because it hired an engineer, carried out the recommended repairs and was not obliged to follow the more stringent recommendation of the unit owners’ engineer.
The judge agreed. The condominium corporation was not required to guarantee that there would never be any more smoke migrating into the owners’ unit. The judge concluded:
36 The Owners now seek what amounts to a guarantee that there will be no reoccurrence. The solution offered by Mr. Farakas is more likely to provide that. But, in my view, it goes further than can reasonably be required. Not only would it result in wholly disproportionate remedial work being required (if one measures the expense and disruption, on the one hand, against the likely outcomes) but it would go well beyond what is reasonable and required having regard to the age and construction of the building.
37 To adopt the labels used by MTCC, the standard is one of reasonableness, not perfection, and on that basis, MTCC is not, in my view, in breach of its duties to repair and maintain pursuant to sections 89 and 90 of the Condominium Act…
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