In a recent decision by the Superior Court of Ontario, Wu v. PCC No. 245, the Court found that a condominium owner had been oppressed by the condominium corporation and that her interests had been unfairly prejudiced and disregarded.
The owner’s claim against the condominium corporation stemmed from complaints by the owner over the course of approximately 6 years relating to excessive noise and vibration levels within her unit emanating from the corporation’s elevators and mechanical systems. During the first six months of her occupancy, the unit was quiet. Thereafter, the owner claimed that the noise was akin to a subway train, helicopter or motorcycle.
The owner’s unit was originally a one-bedroom unit. However, a prior owner of the unit had modified the unit to create a second bedroom in part of the original living room area. This second bedroom abutted the elevator and mechanical installations.
The unit owner made 17 identifiable requests and concerns to the corporation to investigate and repair the sources of the noise and the vibration. In response, the corporation hired several engineers, consultants and contractors to investigate and undertake repairs (at a cost of $31,273, plus the corporation had spent $437, 203 on an elevator modernization project that incorporated some work to address noise issues). While the corporation did undertake some repair work, it did not follow all of the recommendations of its consultants. As confirmed in written reports from the corporation’s noise experts, the noise and vibration continued at a level that exceeded what was acceptable under the appropriate criterion.
The corporation took the position that the alterations to create the second bedroom were contrary to the City of Mississauga’s Property Standards By-law and suggested that there would not be any noise/vibration issues at all if the second bedroom had not been created. This was bolstered by the corporation’s claim that the 23 units below the owner’s 24th floor unit which had the same footprint and proximity to the mechanical and elevator installations did not report any noise issues. However, since the alterations to the unit were carried out long before the noise started, the Judge concluded that the corporation’s position about the second bedroom was a red herring.
This case contains a fairly extensive review of the oppression remedy set out in section 135 of the Condominium Act. “Section 135 protects legitimate expectations and not individual wish lists, and the court must balance the objectively reasonable expectations of the owner with the condominium Board’s ability to exercise judgment and secure the safety, security and welfare of all owners and the condominium’s property assets.”
As the corporation failed to undertake the remedial measures recommended by its experts, the Court determined that the corporation failed to comply with its obligation under the Condominium Act to maintain and repair the common elements. In view of the fact that since 2011, the corporation stopped all work to address the noise/vibration issues and instead focused on the second bedroom not being in compliance with the municipal by-law, the Court determined the corporation did not balance the owner’s expectations with the interests of the corporation and all of the owners – thus the owner was oppressed and her interests unfairly prejudiced and unfairly disregarded. The Court came to this conclusion without any finding that there was bad faith on the part of the corporation and noted that a finding of bad faith is not necessarily needed to determine that there has been oppression, although it is a factor to be considered.
The owner had originally claimed compensation of $150,000 per annum for “the ongoing physical suffering, mental anguish and distress that she and her family have been enduring, for the loss of comfort and quiet enjoyment of their home”. At the hearing the owner’s claim was reduced to $150,000 in total. No medical evidence was presented to the Court to support the owner’s claims. As the owner’s parents (who resided in the unit with her) were not applicants in the case, the Court concluded that the owner could not be awarded any damages for any hardship suffered by her parents. The Court awarded the owner damages in the amount of $30,000 plus costs in the amount of $20,000.
While the owner was successful in this lawsuit by virtue of the Court’s finding that she had in fact been oppressed, from a financial perspective this was not a huge victory for her as she had incurred legal costs of $41,413, only part of which was covered by the costs award. The condominium corporation paid the price for failing to carry out the measures recommended by its experts to remedy the noise and vibration without having adequately balanced the owner’s expectations with the interests of the other owners.
