08/02/2021 – Jurisdiction Ontario
Part 73 published on 01/03/2021
Appeal Dismissed. Damage from toilet leak was the result of the owners’ act or omission
Damage was caused to the building when the owners’ toilet overflowed. The lower Court held that the damage in question resulted from the owners’ “act or omission”, even though the owners were not necessarily negligent. The owners were therefore liable for the resulting damage (falling within the corporation’s deductible) under an applicable by-law of the condominium corporation. [See Condo Cases Across Canada, Part 72, December 2020.]
The owners appealed. The Divisional Court dismissed the appeal. The Divisional Court said:
The reasonableness of the owner’s act or omission is not part of the analysis under s. 105 at all; it is sufficient, to invoke liability, that the damage be “caused” by the owner’s “act or omission”.
…
The uncontroverted facts are that: the Appellants left their unit uninhabited for five months; had someone look in only once every two weeks; the water was not turned off; and, if the water had been turned off, the failure of the ballcock mechanism would not have caused a leak. This evidence clearly establishes that the omission (failure to turn off the water) “caused” the leak; but for the omission, the damage would not have occurred. The application judge correctly assessed this evidence, making no error of fact of any kind.
https://www.canlii.org/en/on/onscdc/doc/2021/2021onsc983/2021onsc983.pdf