01/04/2021 – Jurisdiction Ontario
Part 74 published on 01/03/2021
Court dismisses application for interim injunction. Owner’s claims for damages for corporation’s alleged failure to maintain and repair the common elements to proceed to trial. Condominium corporation agrees to pay for owner’s alternate accommodation pending repairs.
claims against the condominium corporation for alleged failure on the part of the condominium corporation to properly repair and maintain the common elements (so as to stop the water penetration). The condominium corporation had made various efforts to resolve the water penetration problems, but the problems had not been finally resolved.
The owner also alleged that the unit was not habitable.
The owner applied for an interim injunction, seeking the following:
- Orders requiring the condominium corporation to arrange for certain expert investigations and reporting in relation to the condition of the unit and requiring that the condominium corporation carry out any indicated required work.
- An order that the condominium corporation seek an opinion from an expert as to whether or not the unit is habitable and, if the unit was found to be uninhabitable, an order that the condominium corporation “pay for alternative accommodation at a cost of $100.00 per night, or such other amount as the Court may advise, towards alternative accommodation for the Plaintiff and her family for as long as engineer or consultant advises”.
On this interim application, the Court did not decide whether or not the corporation’s repair and maintenance efforts had been “reasonable”. That issue would be determined at trial. However, the Court did say this:
In the circumstances of the immediate case, Ms. Symonik cannot be said to have a strong prima facie case that the efforts of the condominium corporation to repair the common elements have been dilatory or unreasonable.
Before the hearing of the interim application, the condominium corporation undertook to make the requested payments for the owner’s alternate accommodation. The condominium corporation had also undertaken to complete the necessary repairs.
Therefore, the Court dismissed the owner’s interim application.
The Court said:
The condominium corporation has already undertaken to repair the unit and to make it habitable. In the context of an interlocutory injunction, irreparable harm means a harm that cannot be compensated by damages. Ms. Symonik has no irreparable harm in the requisite sense of the law for interlocutory injunctions.