Part 35 published on 01/09/11
Owners’ oppression claim dismissed. Condominium corporation attended to required work in a reasonably prompt and professional way
The applicant owned 35 of the 38 commercial units in the condominium, which also contains 255 residential units in 2 towers. The applicant experienced repeated water leakage, primarily due to failing heat pumps. The applicant claimed that the condominium corporation did not quickly and properly address the problems, favouring the residential interests over the commercial. The applicant claimed that it lost tenants as a result; and claimed damages for oppression pursuant to S. 135 of the Condominium Act, 1998.
The Court dismissed the claim. In doing so, the Court said:
I am persuaded that the respondent (condominium corporation) has not, until recently, given priority to the replacement of the heat pumps in the commercial space. However, I am not prepared to second guess the Board of Directors on this issue. It is a volunteer Board, reliant on the advice of its professional advisors. The building is dated and presents a number of challenges requiring a sensitive balancing of various competing interests.
In sum, I am simply unable to conclude on the evidence and in the circumstances that the applicant’s reasonable expectations have been breached. The respondent has undoubtedly not acted with the dispatch the applicant would have liked and one can certainly understand its frustration and annoyance. Nevertheless, assessed contextually and objectively, one cannot say that there has been a breach.
…
The respondent responded to the complaints of water leaks in a reasonably prompt and professional way. It did not, however, replace the heat pumps. I am unable to conclude that this was unjust and without cause given the Board’s responsibility to the residential and commercial interests and the need to balance them in a fiscally sound and judicious way.
The Court noted that the condominium corporation had a concrete plan in place to resolve the problems. The Court said that the applicant would have basis for complaint if the corporation “failed to follow through”.