04/07/2019 – Jurisdiction Ontario
Part 67 published on 01/09/2019
Condominium corporation failed to meet its repair and maintenance obligations and was responsible to remediate mould in the Applicant’s unit
Mould was found in the owner’s unit. The owner and the condominium corporation disagreed about the cause of the mould. The owner asserted that the mould was the result of inadequate repair or maintenance of the common elements. The corporation asserted that the mould was the result of the owner’s lifestyle. It appears that the corporation ultimately took reasonable steps to prevent the growth of mould. The corporation also attended to the mould remediation (with the owner’s agreement) on a without prejudice basis (the corporation reserving its right to argue that the owner was responsible for the cost of the mould remediation).
The Court held that the mould was attributable to weaknesses in the common elements and in the design of the building. The Court held that the owner’s lifestyle was not a significant cause of the mould.
The Court also held that the corporation had failed to take reasonable steps to resolve the problem with reasonable haste. The Court said:
I too understand that YCC 50 had to take into consideration other financial concerns and had to balance competing needs and priorities. That said, for the reasons given above, I have concluded (that) YCC 50’s overall approach to the mould problem was not reasonable. Thus, I find that YCC 50 has violated their duties as found in s. 90 of the (Condominium Act, 1998).
The Court accordingly held that YCC 50 was responsible for the mould remediation.
However, the Court held that the condominium corporation’s conduct was not oppressive (and accordingly dismissed the owner’s claims of oppression). The Court said:
While YCC 50’s response was not a model of responsiveness at all times, I find that Ms. Brasseur has not proven that their conduct amounted to oppression, unfair prejudice, or unfair disregard of the Ms. Brasseur’s interest. In so finding, I must look at the whole of the history and all of the circumstances.
YCC 50 needed time to investigate. It did retain and hire more than one expert. It retained and hired contractors. It met with the Brasseurs. It has ultimately remediated the mould albeit on a without prejudice basis. The Brasseurs have criticized the “band aid” approach of YCC 50. I do not agree. YCC 50 did not have to immediately go with the most comprehensive and expensive option to remediate. It was entitled to take a more graduated, cost-conscious, and hopefully adequately effective option to solve the problem. In addition, one cannot go back in time with the benefit of hindsight. Mould and its reoccurrence can be a complex issue. As it was in this case. It was not a result of a flood or a leaking roof. The reasons for it are multi-faceted and not easy to sort out. The gravity of the situation may not have been immediately appreciated. Hence the need for investigation and expert advice. Also, even when appreciated, experts and contractors are not always immediately available at the drop of a hat. Even when retained, some, like Spectrum in this case, may not work out. There may be honest and reasonable differences of opinion that needs to sorted out. Even though I am confident no one truly wanted it, this judicial proceeding had to be resorted to work out the differences.
That said, of course, I appreciate that things got delayed. But I do not find that YCC 50 was deliberately dragging its feet.