21/07/2020 – Jurisdiction Ontario
Part 71 published on 01/09/2020
Appeal allowed. Court orders amendment to Declaration in relation to obligations to maintain and repair the chimney flues
This was a dispute relating to the repair and maintenance obligations applying to the fireplace flues. The lower Court held that the condominium’s Declaration did not contain any error or inconsistency in relation to the obligations to maintain and repair the chimney flues, and therefore did not order any amendment to the Declaration in relation to such obligations. [See Condo Cases Across Canada, Part 67, September 2019.]
The condominium corporation appealed to the Court of Appeal. The Court of Appeal agreed with the condominium corporation that the Declaration contained an error or inconsistency in that it contained contradictory provisions respecting the responsibility for the chimney flues. The Court of Appeal determined that the owners having the use of the chimney flues were responsible to maintain them and to repair them after normal wear and tear. The Court of Appeal therefore ordered as follows:
The appeal is allowed, the order below is set aside, and in its place, an order is granted amending the Declaration in a manner to be agreed upon by the parties, consistent with these reasons, or further order of this court.