A recent case has highlighted the importance of timely and meaningful responses by condominium corporations to owner complaints – and the potential consequences for failing to adequately attend to the issues.
The case, Wong v. TSCC No. 1918, 2022 ONSC 3409, centered on a unit owner who had been complaining of noise and vibrations emanating into her unit for over eight years. The unit was located directly adjacent to the condominium’s garbage room, where the garbage chute funneled, and where the compactor was located.
From 2012 to 2018, the Corporation made some efforts to remediate the sound transmission and vibrations into the owner’s unit, including approving some fixes to the machinery, relocating the compactor to the wall farthest from the owner’s unit, and implementing a notice that the garbage chute was not to be used overnight. Despite these efforts, the noise and vibrations persisted, and Wong continued to complain about the noise.
In 2018, the Corporation approved noise testing in the unit. The consultant found that the noise emanating into the unit was excessive, and made recommendations to significantly alter the common elements in order to reduce the transmissions. The cost of implementing these recommendations was approximately $20,000.
As a result of the relatively high cost estimate, the Board sought a peer review of the recommendations by another acoustic consultant in early 2020. Their findings were presented in a report which ultimately focused on critiquing the original consultant’s method of testing. The report did not offer any alternative recommendations.
In October 2020, the Corporation had another contractor assess the noise transmission in the unit, who confirmed that the noise was excessive. The contractor recommended a different course of action than the original consultant, at approximately half of the cost.
The Corporation finally approved these new recommendations, but in the interim, the owner brought an application against the Corporation under S. 135 of the Condominium Act, taking the position that the Corporation’s untimely, inadequate, and piecemeal response to the owner’s complaints unfairly disregarded her interests as a unit owner, and was oppressive. As a result of the application, the Corporation decided not to proceed with the recommendations until the owner rescinded the application.
The Court first applied the facts of the case at hand to the test of reasonableness (referred to in Estanol v. York Condominium Corporation No. 299) to determine whether the Corporation discharged its statutory duties to maintain and repair the common elements, taking into account: (i) the relationship of the parties, (ii) the contractual obligations between the parties, (iii) the cost and work required, and (iv) the benefit to all parties if the repairs are effected compared to the detriment which may be occasioned by the failure to undertake them.
The owner did not present any expert evidence to demonstrate the continued excessive noise. However, the Court was able to infer that the Corporation itself had acknowledged that the noise was excessive by undertaking remedial efforts in 2018 and authorizing further remedial steps in 2021; this acknowledgement triggered a duty to repair the common elements and a recognition that there was indeed excessive noise.
In order to determine whether the Corporation acted oppressively in violation of Section 135, the Court looked at whether there was a breach of reasonable expectations, assessed on an objective basis, and whether the conduct of the Corporation amounted to oppression or unfairly disregarded the owner’s interests.
The Court acknowledged that the owner ought to have reasonably expected to experience some extra noise and vibrations due to having purchased a unit whose demising wall was shared with the garbage room. However, the Corporation “inexcusable” length of time the Corporation took to address the owner’s concerns, coupled with the Corporation’s piecemeal approach to undertaking remedial efforts, amounted to unfairly disregarding the owner’s interests, and interfered with her peaceful enjoyment of her Unit.
The Court awarded the owner $30,000 in damages to reflect the interference with the use and enjoyment of her unit. The Court also commented that it was inappropriate for the Corporation to stop the remedial work when the owner commenced the application. The Court ordered that the Corporation proceed with the work.
Condominium corporations should be aware of the importance of balancing the interests of all owners and addressing complaints in a timely manner. The Court acknowledged that it was within the Corporation’s rights to have the consultant’s report peer reviewed, but placed significant emphasis on the length of time the Corporation took to address the owner’s concerns. Board members and managers should strive to address owner complaints in a meaningful and timely manner – or risk the high cost of non-compliance and oppression findings.
