Suing a Condo Corporation for Repairs is a Risky BusinessMohamoud v. Carleton Condominium Corporation No. 25, 2019 ONSC 7127 (CanLII)
Living in a condominium has the advantage of sharing common amenities and costs, but it also entails some loss of freedom for the unit owners. If the owner has a problem, she has to rely on the condo corporation to fix it. There may be disagreements about what caused the problem and what are the appropriate measures to fix it.
Owners are generally responsible for repairs inside their units. However, the condo corporation is responsible for repairs to common elements, such as heating and ventilation, exterior doors, windows and balconies, even if they are for the exclusive use of the owner.
Where a common element needs repairs, it would be a violation of the condo agreement for the owner to undertake the repair himself, even if he was willing to pay for it out of his own pocket.
Enforcement through an application to the Superior Court
Ideally, disagreements about repairs will be dealt with through negotiation or mediation. If less adversarial methods do not bring about an agreement, the final recourse is an application to the Superior Court.
Section 134 of Ontario’s Condominium Act provides that an owner can seek “an order enforcing compliance with any provision of this Act, the declaration, the by-laws… or the cost-sharing of facilities or services of any of the parties to the agreement.”
Further to this, under section 135, an owner may claim that the behaviour of the corporation has been oppressive and ask for “an order requiring the payment of compensation.”
Repair disputes proceed by Notice of Application to the Superior Court, even where the dollar amounts involved are small, and well below the limits of the Small Claims Court. In the last few years, Ontario has established a new Condominium Authority Tribunal. Its scope of authority over subject matter may be expanded in the future, but at the current time it remains quite narrow, and does not extend to repair disputes.
One sometimes finds condo corporations and unit owners embarking on expensive court proceedings over seemingly minor matters such as the colour of the front door of a townhouse or whether a vent for a hot water tank should be allowed to pass through the outside wall.
A disagreement about noise from roof fans that took five years to resolve
In the case of Mohamoud v. Carleton Condominium Corporation No. 25, Ms. Mohamoud owned an apartment on the top floor of a building. She was particularly sensitive to noise, and she complained repeatedly about noisy exhaust fans on the roof above her apartment.
On a number of occasions, the condo corporation sent technicians to perform maintenance on the fans, and they always came back with a report that the fan noise was within accepted standards. Finally, five years after she first complained, the two fans above her apartment were replaced.
Ms. Mohamoud found that the new fans were quieter. She believed that this belated improvement demonstrated that her complaint had been well founded. She argued that the length of time it took to replace the fans was unconscionable, and that the corporation “ignored her, refused to believe her and deliberately delayed responding to her complaints.” She sued for compensation for the discomfort that she endured in the five-year period before the replacement occurred.
The judge rejected her argument, focussing on the lack of evidence that the condo corporation failed in its responsibilities. The corporation undertook regular inspection and maintenance. The judge also noted that a consultant hired by Ms. Mohamoud herself had found that “none of the noise levels in Ms. Mohamoud’s unit exceeded the guidelines of the American Society of Heating, Refrigeration and Air-Conditioning Engineers and that highway traffic and the refrigerator were the sources of the loudest noises in the unit.”
Delays by a condo corporation are considered reasonable if it has followed proper procedures
The core legal principles relied on by the judge in Mohamoud v. Carleton Condominium Corporation No. 25 are as follows:
 However, 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.
This implies that an owner should not assume that the “customer is always right” when it comes to complaints against condo corporations.
Courts are sympathetic to condo corporations. They are not profit-making entities, and their repair expenses must be funded through levies on all the owners. The judge in Mohamoud cited a British Columbia case, dealing with moisture and mould in the attics of condo townhouse units. There, a vote of the owners had been held, and the majority voted for a less expensive approach than the one preferred by the owner who went to court (costing $100,000 as opposed to $250,000). The BC judge made the following observation:
In resolving problems of this nature, there can be “good, better or best” solutions available. Choosing an approach to resolution involves consideration of the cost of each approach and its impact on the owners… Choosing a “good” solution rather than the “best” solution does not render that approach unreasonable such that judicial intervention is warranted.
One of the obstacles that owners face in making these complaints is that it is often difficult to prove objectively that a particular type of repair was needed. Even experts may differ about what is needed to solve certain types of problems. As long as the condo corporation has made reasonable efforts to fix the problem, it will generally not be found liable.
Sometimes, the condo corporation is found to be in the wrong. In Ryan v York Condominium Corporation No. 340, 2016 ONSC 2470, Justice Perell awarded $70,000 to an owner for damage from water leakage due to improper repairs by the corporation. That type of result requires clear evidence of the source of damage.
In another Ontario case, the condo owner complained about a water leak into her solarium. It finally stopped after two years, following repairs to the roof for a different reason. Neither side had known that the problem emanated from the roof:
 The complexity of the maintenance issue must be taken into consideration in evaluating the reasonableness of the Corporation’s actions…. Despite multiple inspections and tests carried out by both engineers, neither was ever able to make a conclusive finding about the cause(s) of the leaks. Ms. Weir acknowledged during cross-examination that it was a “tricky problem” for the engineers to solve.
These cases illustrate the challenges faced by a condo owner who hopes to succeed in court against her condo corporation over repairs. Even experts often disagree about what repair is needed to fix a problem. The owner who complains will need very clear evidence from a recognized expert in order to justify her complaint. If the condo corporation has behaved reasonably by checking on complaints and following industry standards with respect to maintenance and repairs, it is likely to succeed in defending itself in court.
The owner may end up responsible for the condo corporation’s legal fees, which would make a bad situation even worse. Condo owners should think twice before suing their condo corporation over repairs.