The Condominium Act, 1998 (the “Act”) sets out basic guidelines for maintenance and repair obligations. Where a unit owner is required to conduct a repair in their unit, can the condominium corporation inspect those repairs and charge the owner for the inspection?

Recently, in York Region Standard Condominium Corporation No. 972 v. Lee the Court of Appeal upheld a cost award against a unit owner who refused to pay for an inspection of repairs required in their unit.

Condo Owners Appeal Compliance Order

The appellants are the owners and residents of a condominium unit in Richmond Hill. They appealed a compliance order made against them under ss. 117 and 134 of the Act which directed them to permit the respondent, York Region Standard Condominium Corporation No. 972 (the “Corporation”) or its agents to enter and inspect their unit and, if necessary, undertake maintenance or repairs under s. 93(3) of the Act and pursuant to the Corporation’s Declaration in relation to the removal of Kitec plumbing.

[We note that on January 1, 2022, the wording of section 117 is to be amended but the substance of the provision remains the same, which is to prohibit a person from carrying on a condition in a unit that is likely to damage the property or cause injury to an individual.]

Unit Owners Notified of Faulty Plumbing Needing Repair

The condominium building in question experienced a couple of instances of leaks in Kitec plumbing present in units in the building. That form of plumbing had been recalled by its manufacturer as faulty in 2005. To prevent any future plumbing failures, in August 2018, the Corporation issued a notice requiring unit owners to remove Kitec plumbing from their units.

The Corporation gave unit owners two options for repair. Firstly, they could use the contractor recommended by the Corporation to undertake the work at a set fee to be paid by the unit owner. The second option was to use a qualified contractor of their choosing and pay the hired contractor directly. Owners who opted for the second option of hiring their own contractor, however, were still obliged to pay $750 plus HST to the Corporation so that its engineer could inspect and certify the work was done. The deadline for choosing an option was extended once by the Corporation. The appellants elected to hire their own qualified contractor but neglected to pay the Corporation the requisite inspection fee. In addition to failing to pay the inspection fee, the appellants refused access to the Corporation’s agents to inspect and confirm that repairs had been completed.

In response to repeated refusals to allow the Corporation’s agents entry, the Corporation brought a compliance order. In finding for the Corporation, the court awarded costs on a full indemnity basis in the amount of $4,541.95 to be added to the unit’s common expenses.

Appellants Appeal Award to Corporation

The appellants appealed the court’s award. While they undertook the repairs to the satisfaction of the Town of Richmond Hill and the Corporation, who were permitted to inspect the unit after the court’s judgement, the owners still appealed the court’s findings to avoid the expense and cost consequences of the judgment.

The appellants argued that the Kitec plumbing did not pose a significant risk to the building. The Court of Appeal rejected this argument noting that the evidence before the application judge clearly demonstrated that the Kitec plumbing had been recalled and was prone to leak with leaky plumbing having been discovered in the building twice.

The appellants further argued that the Corporation could not use s. 117 of the Act to require owners to remediate their units because that section is aimed at bad conduct on the part of unit owners. Section 117 provides:

“No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.”

Court of Appeal Upholds Cost Award

The Court of Appeal upheld the lower court’s cost award under section 134(3) of the Act, which provides that the court may order an owner to pay the damages incurred by an applicant as a result of non-compliance and the costs incurred by the applicant in obtaining the order.

An award of damages or costs, along with any additional actual costs to the corporation in obtaining the order, were added to the common expenses of the unit under s. 134(5).

The Court of Appeal held that the application judge followed a long line of precedent in ordering costs against the appellants on a full indemnity basis “because the balance of the unit owners are blameless and should not have to bear the legal costs of securing the compliance of one of the unit owners”. In applying this law, she noted:

“Due to the recalcitrance of the [appellants], the matter could not be settled without the intervention of the court. When the [appellants] continued to fail to comply, they were warned that the Corporation would seek full enforcement costs if they continued to fail to comply with the Act, Declaration and Rules of the Corporation.”

The Court of Appeal found no error in the lower court’s approach to costs and dismissed the appeal on the merits, with costs. While the court granted leave to appeal costs, it also dismissed the costs appeal. Costs were fixed in the amount of $4500 all-inclusive, and the Court of Appeal ordered that this amount be added to the common expenses attributable to the owners’ unit.

Oakville Real Estate Litigation Lawyers Helping Clients In Commercial and Residential Real Estate Matters

At Campbells LLP our experienced team of real estate litigation lawyers can assist with navigating the Condominium Act, 1998 and ensure that obligations for maintenance and repair are met expeditiously. We provide a wide range of services related to residential real estate and commercial real estate and are available to answer all your real estate law questions. To speak with a lawyer, contact us online or at 905-828-2247 to schedule a consultation.