A Superior Court ruling in November cost a Mississauga condominium corporation more than $50,000, plus its own legal bills, for failing to act reasonably in considering an owner’s renovation requests.
Stephen Moran owns a condominium unit in a 341-unit building on Hillcrest Ave. Its governing declaration says that no owner can make any structural change or alteration to a unit without the prior written consent of the board of directors.
In November, 2021, Moran applied to the board for permission to carry out renovations in the unit. He proposed to install new tile in the kitchen and washrooms, replace the kitchen counter and cabinets, and supply new bathroom vanities.
The board approved the work only if it started on Dec. 6 and would be completed within four days. The service elevator could only be used twice for a maximum of 20 minutes to bring in and remove materials and equipment.
Moran replied saying the restrictions were unreasonable, that the elevator would be needed for at least three hours to remove the construction debris, and deliveries of supplies could not possibly be scheduled within a 20-minute window.
Moran’s contractors began to work during the scheduled time period, but quickly ran out of time.
On Dec. 22, 2021, Moran retained a lawyer who submitted a proposed construction schedule and two requests for more reasonable access rights. When no response was received for almost three months, Moran began a court application for an order declaring that the condominium was in breach of the Condominium Act, and for an order requiring it to co-operate with him by permitting a reasonable access schedule.
Moran also sought damages as compensation for the losses cause by the condominium.
The building’s property manager never supplied copies of any written rules, policies or procedures that would apply, including anything supporting a 20-minute time limit for the use of the service elevator.
Over the next few months, lawyers for both parties exchanged emails attempting, unsuccessfully, to agree on a construction schedule and access to the elevators.
Finally, on Sept. 29, 2022, some 10 months after the original request, the matter came before Justice Marie-Andrée Vermette. Moran’s contractor provided an affidavit stating the work could not possibly be completed within four days. Affidavit evidence submitted on behalf of the board was, in the judge’s words, “replete with hearsay, speculation and general and unsupported statements.”
The judge set out a new construction schedule and ruled that Moran was reasonably entitled to expect that the condominium would consider his renovation requests fairly, take his concerns seriously, and provide timely responses and decisions. The board had done none of this.
Moran’s evidence was that he could not move into the unfinished unit after the sale of his former residence, and suffered damages of almost $36,000 for moving, storage and temporary accommodation.
In November, Justice Vermette ruled that Moran was entitled to an oppression remedy under the Condominium Act, and ordered the board to pay Moran damages of $35,826.93, plus $15,000 in costs.
The outcome of this case serves as a useful lesson to condo boards throughout Ontario.
May 11, 2023Legal |