Part 15 published on 01/08/06
Decision upheld on appeal
At the lower court level, the condominium corporation was unsuccessful on its application for an order allowing the corporation entry (to residential units) in order to carry out mould remediation on fan-coil units. The lower court was not satisfied that the corporation’s proposed remediation work was necessary or that the less expensive remediation proposed by the owners was insufficient.
The condominium corporation appealed to the Ontario Court of Appeal. The Appeal was dismissed. In dismissing the Appeal, the Court of Appeal considered the application of the principles in the case of York Condominium Corporation #382 v. Dvorchik. In the Dvorchik case, the Court of Appeal said that the courts should give deference to the views of elected condominium boards respecting the propriety of rules for the condominium community, unless the rules are clearly unreasonable or contrary to the scheme of the Condominium Act. The Court of Appeal said that these principles do not apply in this case because this was not a case about a condominium rule. This was a case about the responsibility of unit holders to maintain their units. The Court said:
“The corporation only has the authority to interfere with and override these unit holders’ responsibilities and obligations where the unit holder has failed in his obligation to such a degree that a risk outlined in Section 92(3) or a condition likely to damage the property or cause injury to an individual as described in Section 117 is allowed to exist and continue.”
“As the statutory rights and obligations of both parties are engaged, a careful balancing is required. There is no statutory or principled reason why deference should be afforded to the corporation’s decision on the facts of this case.”