22/06/2017 – Jurisdiction Ontario
Part 59 published on 01/09/2017
Condominium corporation ordered to remove safety ladder
The condominium corporation had installed safety ladders on the outside of the building, to allow workers to gain safe passage to and from the roof.
One of the safety ladders was located very close to a balcony of the Applicant owner. She objected to the ladder and applied for an order that the ladder be relocated “to a part of the complex that is out of the direct sight-lines from inside her unit”. The Applicant also asked that the costs of this re-location “be allocated to the other unit holders and not her”.
The Court held that the installation of the ladders was a substantial change requiring written consent of 80% of the owners (which consent had not been obtained). The Court said that this was not a necessary change, despite the safety concern. The Court said:
What really happened here is that the Board came to the view that some kind of change to the existing method of roof access was prudent or necessary and it chose one of six options open to it to effect that change. There is no evidence that the installation of safety ladders was necessary or essential to ensure safety as defined in section 175(1)(b) of the Condominium Act or that the safety ladders were installed to prevent imminent damage to the property or common assets as contemplated by section 175(1)(b).
The Court held that the Board’s actions (in installing the ladders) were oppressive. The Court said:
On these facts however, I cannot get past the fact that the Board did not act in a manner consistent with the duty resting on boards as set out in the (3716724 Canada Inc. v Carleton Condominium Corporation No. 375) decision, which is the duty to act honestly and in good faith, and that it exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. The Board’s breach of this fundamental obligation by completely ignoring its duty to obtain the written consent of 80 per cent of unit owners to substantial changes or giving the prescribed form of notice means that I am not obliged to show deference to its decision as to how it balanced the competing concerns between an individual complainant and the common interests of all unit owners.
The Court made the following orders:
- that the Board permanently remove the Ladder from its existing place adjacent to Ms. Shen’s unit and relocate it to one of the end walls of the Building as far away as possible from the sight lines of Ms. Shen’s unit;
- that the Board refrain from allocating any costs associated with this relocation to any common elements fees that might be charged back to Mr. Shen or her unit and further that the Board avoid any other kind of fee, levy or allocation which may directly or indirectly require Ms. Shen to pay or contribute to the costs of the relocation of the Ladder; and
- c) that the Board pay compensation to Ms. Shen of $10,000.00 for the interference with her view and her loss of enjoyment of the property that took place without giving the benefit of due process as set out under the Act. Again, the Board must avoid any charge back to Ms. Shen with respect to this payment or any allocation of this expense to her unit.
[Editorial Note: I was a little surprised that the Court didn’t decide to give the condominium corporation a reasonable opportunity to obtain the necessary (80%) consents. The decision includes the following sentences:
Ironically, this may well have been a situation where the written consent of 80 per cent of unit owners would have been given on proper notice. In that case, the reasonableness standard of review may have called for deference to the Board’s decision to proceed with the installation of caged safety ladders in the locations that were ultimately decided on.
On the other hand, I suppose the location of the one ladder (near the Applicant’s balcony) might have been determined to be oppressive in any event – even if approved by the necessary vote of the owners.]
