Part 55 published on 01/09/16
Owner not responsible for water damage
The condominium corporation had taken the position that the owner was responsible for water damage in the unit below the owner’s unit. The corporation had asserted that the damage was the result of the owner’s failure to properly maintain his shower stall; and had previously claimed payment from the owner. The owner had paid the amounts claimed by the corporation, and then sued for recovery of the amounts paid. The Court ruled in favour of the owner. The Court said:
Considering all of the evidence in this case I am unable to conclude on a balance of probabilities that the leak started from the plaintiff’s Ensuite Shower. The leak continued even after the plaintiff had stopped using the Ensuite Shower altogether after the discovery of the leak and it continued notwithstanding that Mainline had applied the silicone and the plaintiff the caulking on the recommendation of Mainline.
[Editorial Note: The deputy judge also made the following statement: “Were it clear that the source of the water leak emanated from (the owner’s unit), I would agree with the (condominium corporation’s) submissions that the (owner) would be liable.” The decision didn’t turn on this, because the Court concluded that the source of the water leak was not in the owner’s unit. But the point I want to make is as follows: Even if the source of the leak was in the owner’s unit (and the Court was satisfied that the owner was negligent), the Court would still need to consider the application of the condominium corporation’s insurance. In particular, the damage (if to a standard unit) might be covered by the corporation’s insurance. All owners have a right to the protection/coverage of the corporation’s insurance; and responsibility for the deductible portion of an insured loss (under the corporation’s policy) then requires an analysis of section 105 of the Condominium Act and any “insurance deductibles by-law” of the corporation.]