Part 27 published on 01/08/09
Owner responsible for insurance deductible.
A water pipe burst, causing damage to the owner’s unit, neighboring units and the common elements. The Court found that the damage was the result of an “omission” on the part of the owner. The corporation had passed an insurance deductibles by-law to extend the circumstances under which an owner could be responsible for the deductible (beyond the circumstances noted in Section 105(2) of the Condominium Act). The by-law stated that where the cause of damage originates in a particular unit, the owner of that unit is responsible for the deductible in relation to damage to other units. The Court noted that the by-law did not refer to common element damage, but nevertheless held as follows:
However, to confine the statutory subsection and the by-law to “other units”, thereby excluding the “common elements”, would be an unduly restrictive construction. It would result in unfairness to other unit-owners in situations where the damage to the owner’s unit is minimal (a fraction of the deductible), but the damage which he has done to the common elements exceeds the deductible.
Since the damage was the result of the owner’s omission, the Court said that the owner was responsible for the full deductible. The owner was also responsible for the corporation’s cost to repair the pipe (unit maintenance). All of these amounts were properly added to the owner’s common expenses and recoverable by way of lien against the unit.