28/07/2020 – Jurisdiction Ontario
Part 72 published on 01/12/2020
Damage from toilet leak was the result of the owner’s act or omission
Damage was caused to the building when the owners’ toilet overflowed. The owners were out of the country at the time.
The condominium corporation’s by-laws included a provision holding the owner responsible for the deductible on the corporation’s insurance policy in cases of damage resulting from the owners’ “acts or omissions”.
The Court held that the damage in question resulted from the owners’ “act or omission”, even though the owner was not necessarily negligent. The Court said:
Here, the Lozanos were aware that the toilet had previously malfunctioned and chose not to employ a plumber to address the problem or to maintain the plumbing subsequently. In Breakwell, the unit owner had no notice that the internal wiring of the unit furnace was in jeopardy. Even still, the Breakwell Court determined that the unit owner’s act or omission did not have to be negligent – and the damage did not have to be foreseeable – in order to make them liable for the cost of repair.
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Indeed, in this case, the Lozanos appear to be advocating for a system based on proving negligent act or omission; absent which, no unit owner could be held financially responsible for the cost of repairs. However, the case law definitively indicates that the negligence standard is not to be applied in condominium disputes of this kind; rather, the standard is between negligence and strict liability and is perhaps closer to the latter.
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This is not a case where the unit owners were negligent in their care and upkeep of the Unit. Rather, this is a case where the failure to retain a plumber who could make thorough repairs constitutes an omission for which the Lozanos must be held responsible. Further, while the Lozanos were conscientious in arranging family and friends to check on the Unit during their prolonged absence, it would have been additionally prudent to have shut off the water to the Unit during their trip. Doing so would presumably have mitigated against any damage of the kind suffered here and is reflective of the level of care and diligence that is expected of condominium owners.