Duty to Treat Condo Owners Fairly

September 2016

Condo corporations regularly deal with complaints or problems. Some of the issues include noise, water penetration, odours and smoke.

The condo corporation and its directors have an obligation not to ignore complaints from owners. Condo corporations, including directors, could be subject to legal claims for failing to fulfill their duties.

Condo Act Section 135

An owner, a corporation, a declarant or a mortgagee of a unit may make an application to the Superior Court of Justice for an order under this section.

On an application, if the court determines that the conduct of an owner, a corporation, a declarant or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant, it may make an order to rectify the matter.

The Condo Act protects condo owners from being treated unfairly. It protects them from conduct or actions that are unlawful, considered unfair or oppressive. This includes ignoring problems that are brought to the attention of condo management or directors.

There are times when a condo owner may choose to pursue a legal action that may represent their personal interests but is detrimental to the other condo owners.
Such legal actions are unlikely to be successful.

When a problem becomes a legal action, a judge has the power to make any order deemed appropriate. Any such ruling is likely to balance specific complaints against the interests of other owners and reasonable expectations. A determination made by a judge is intended to be one that balances individual complaints against the interests of other condo owners of the corporation.

In practice, few actions against condo corporations have been successful. Perhaps this is because most condo corporations do their best to make good decisions and act fairly to resolve disputes.

A recent situation highlights a condo corporation cited for their poor response to a condo owner’s complaints.

A condo suite on the top floor of a building was situated next to the elevator, HVAC and mechanical room. The condo suite was plagued by excessive noise and vibration caused by elevators. There was a history of complaints about the problem dating back to 2008. The condo corporation spent over $31,000 for professionals to investigate and address the problem. There was also an elevator modernization program.

The expert employed by the condo corporation confirmed a noise problem in the suite. The condo corporation ignored the expert recommendations when making repairs. The court determined that the condo corporation undertook extensive investigation but insufficient work to rectify the problem despite being aware of a solution.

Once expert advice has been sought by a condo corporation, that advice should be carefully considered before choosing an alternate course of action.