Condo owners cannot dictate when to change the windows

In a recent decision, the Superior Court shed some light on the extent to which a condo owner can dictate when and how the corporation is to maintain, repair and replace common elements. Specifically, this owner was unsatisfied with the perceived delay in changing some of his unit windows and brought the corporation to court, seeking oppression remedy.

The oppression remedy is available to anyone whose reasonable expectations have not been met, leading to them being oppressed, unfairly prejudiced, or unfairly disregarded. However, as the court concluded in this case, not every unmet expectation and desire leads to oppression.

The Drafty Window

In this case, Mr. Berman had a drafty bedroom window, resulting in his bedroom being two degrees colder than his living room. This draft was the result of over ten years of deterioration. The windows were common elements, and the Corporation’s responsibility to repair.

In February 2020, the Corporation told Mr. Berman that his window was in the budget to be replaced in 2021. It kept that promise, and replaced his window in March 2021. Nonetheless, Mr. Berman sued the Corporation in November 2020 for $50,000 for oppression.

Mr. Berman was dissatisfied with both the time the corporation took to change the windows and with the quality of the windows having been installed. He argued that the Corporation having visually investigated the window a handful of times over the years was not sufficient. There were no air tests, no water tests, and no engineering inspections. According to Mr. Berman, the visual inspections by the Corporation’s staff were not sufficient.

Reasonable Expectations

The oppression remedy is there to protect reasonable expectations. The court concluded that asking tens of thousands of dollars in damages for a draft and a two degree temperature gradient between different rooms in a condo unit is itself unreasonable.

The Court found, ultimately, that there was no basis for Mr. Berman to hold a reasonable expectation other than that the board would manage the condominium honestly, in good faith, and with due diligence.  The fact that Corporation disagreed with Mr. Berman’s feelings about the quality of his window does not amount to oppression.

The Court considered a variety of factors in coming to its decision, including:

1. The size of the condominium (with 160 units);
2. The age of the building (50 years old);
3. The fact that the Corporation inspected his window multiple times, and re-caulked it in compliance with its window replacement policy; and
4. The aggressive and bullying behaviour of Mr. Berman towards Corporation staff.

All this to say that the Court concluded that it is not objectively reasonable to expect condos to call in engineers and perform testing every time there is a complaint about a window, no matter how loud or often the complaint. The Court commented that Mr. Berman may have been in a better legal position had he conducted his own testing (showing an issue or deficiency).

Board Liability

Mr. Berman also brought his oppression claim against the Board of Directors personally. The court concluded that there were no allegations against the directors in their personal capacity.  The court concluded that, even if the court found that Mr. Berman was oppressed, or even if the conduct of the Board of Directors fell below the standard of care, this did not necessarily open them up to personal liability.  The court suggested that a case of oppression against directors personally usually requires a personal benefit or bad faith on behalf of the directors.

Condo Directors are volunteers who are giving their time to help manage their community. As such, the Condominium Act protects them, in large part, from liability. Indeed, the only circumstances contemplated in the Act whereby a director may be personally liable is if they have:

1. failed to:
   • act honestly and in good faith; or
   • exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances; and
2. the above breach arose from the director failing to rely on the advice of an expert (like an auditor, engineer, or lawyer).

This was not the case here.

The Moral(s) of the Story

Despite this being a relatively short case, there is a lot to be learned from it. As is my usual fashion for these case reviews, here are my takeaways or “lessons learned”:

• Owners cannot dictate the means by which Corporations investigate or repair common elements. In this case, the Corporation engaged in visual inspections and recaulking until the window was replaced at the budgeted time. The Court agreed with this method. Had Mr. Berman obtained his own expert report showing that the window needed to be replaced earlier, this may have been a different story.

• The Court will take the size and age of a condominium into account when assessing the reasonableness of the Corporation’s steps to repair and replace common elements.

• The Court will also take into account the conduct of the owner seeking the replacement, and will note if there are documented examples of rudeness to the Corporation’s staff.

• Even if a condo director does fall below the standard expected of them, this does not necessarily mean that they can be personally liable.

This comes as somewhat of a cautionary tale, as the court invited the parties to make cost submissions at the end of the decision. This could very well mean that Mr. Berman is on the hook for his own legal fees, as well as the corporation’s. It is an interesting case that I recommend you read, which above all else, highlights the risks of litigation and the importance of going in fully prepared.

You can read the case here.