03/18/2024 – Jurisdiction Alberta
Part 86 published on 01/06/2024
Appeal allowed. Condominium corporation had acted reasonably in relation to complaints about noise transmission through wall.
The Applicant claimed that the condominium corporation had acted improperly in response to her complaints about noise transmission through a wall between her unit and a neighboring common element lounge.
The lower Court held that the condominium corporation’s failure to arrange for an expert investigation of the issue constituted “improper conduct” within the meaning of Section 67 of the Condominium Property Act and ordered the condominium corporation to arrange for the necessary investigation. [See Condo Cases Across Canada, Part 80, December 2022.]
The condominium corporation appealed. The lower Court decision was overturned on appeal.
Prior to the hearing of the appeal, the condominium corporation obtained expert advice (from an architect), which indicated that the wall did not meet requirements of the Building Code. The architect recommended that an additional layer of 5/8” drywall be applied to each side of the wall. The condominium corporation then offered to apply a layer of 5/8” drywall to the “lounge side” of the wall. The Applicant rejected this offer.
The Appeal Court held that the condominium corporation had acted properly throughout and allowed the appeal. The Appeal Court said:
The Board considered the complaints and made a judgment that work on internal walls was not contemplated or advised by the reserve fund planner “at any time over the next 30 years”, that the reserve fund could not be spent on a capital improvement without a special resolution; this would be an improvement on the built design and construction; and there is not enough money available to spend on non-emergency upgrades for items that still have economic life left and would benefit one owner at the expense of all of the others;
Thus, on a balance of probabilities, which is the standard in all civil cases (FH v McDougall, 2008 SCC 53 at para 40), I find that the Board acted and responded reasonably. The Board investigated and took steps to address the complaint, bearing in mind its role as a steward of funds belonging to all of the owners and other statutory-driven responsibilities. The evidence is that they thought about the problem in the context of managing a large property with many owners. The Board determined in their judgment that it would be improvident to investigate further by hiring an acoustic expert, which would deplete funds belonging to all owners for the benefit of one owner. They also relied on the 2017 Reserve Fund Study and determined that no reconstruction or redesign of the Lounge wall was contemplated or advised in that report for the foreseeable future; therefore, the Board did not include these items in the Corporation’s budget or reserve fund plan.
The Appeal Court also held that the condominium corporation’s offer was reasonable. In doing so, the Appeal Court held that, based upon the unit boundaries, the Applicant was responsible for any desired application of drywall to the inside (unit side) of the wall.
By way of conclusion, the Appeal Court said:
Objectively viewed, applying the civil standard of proof, the Corporation’s conduct did not rise to the level required by s 67(2) of the CPA. It did not breach reasonable expectations, and even if it did, the conduct was not oppressive or unfairly prejudicial, and did not unfairly disregard Aubin’s interests.
There is evidence that the wall in issue does not comply with the 1970 Building Code. This is in the body of evidence. This non-compliance does not constitute a cause of action in and of itself. Further, the question of declaratory relief respecting this violation or deficiency was not argued by the parties. I query whether I could issue such a declaration given that there may be avenues other than the CPA remedy sought here to enforce the Building Code. The Corporation will have to make a decision about remedial action if there is a 1970 Building Code violation, but that is not, on these facts, a CPA s 67(2) issue.
Aubin v Condominium Plan No 862 2917 – Court of King’s Bench Alberta