Part 53 published on 01/02/16
Condominium corporation completed reasonable repairs to address smoke migration
In an interim decision of the Court, the Court had held that the condominium corporation had not initially responded to complaints about smoke migration with sufficient dispatch; but had ultimately taken reasonable steps towards fulfilling its repair and maintenance obligations. [See MacKay v. Metropolitan Toronto Condominium Corporation No. 985, Condo Cases Across Canada, Part 47, September 2014.]
The dispute between the parties continued, however, because the parties (and their experts) did not agree on the required work to fully address the smoke migration problems.
The Court was therefore asked to decide further applications between the parties, the key issue being whether or not the condominium corporation had ultimately completed all necessary repairs to address the smoke migration. The owners also asked that the condominium corporation provide an engineering report certifying that smoke would not migrate into the owners’ unit.
The Court held that the condominium corporation had completed reasonable repairs, and therefore was not required to perform further work. The Court said:
The Owners now seek what amounts to a guarantee that there will be no reoccurrence. The solution offered by (the owners’ expert) is more likely to provide that. But, in my view, it goes further than can reasonably be required. Not only would it result in wholly disproportionate remedial work being required (if one measures the expense and disruption, on the one hand, against the likely outcomes) but it would go well beyond what is reasonable and required having regard to the age and construction of the building.
To adopt the labels used by MTCC, the standard is one of reasonableness, not perfection, and on that basis, MTCC is not, in my view, in breach of its duties to repair and maintain pursuant to sections 89 and 90 of the Condominium Act, and I therefore decline to make the declarations sought by the Owners in that regard. In particular, I do not accept that I should order MTCC to deliver an engineer’s report as described in paragraph 1(e) of the Owners’ amended notice of application.
The Court declined to offer any order or direction as to what needed to be said (if anything) in any status certificate issued for the owners’ unit, preferring to leave that question in the hands of the condominium Board.
Finally, the Court ordered that each party bear their own costs.