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SLOW RECTIFICATION held not 'oppressive' but justifies $ 70K compensation RYAN v York CC#340 2016/04/16 10:38  
$70 K ( plus upcoming legal costs ) is awarded against West Mall condo corporation by a highly respected Toronto judge.

A self-evacuated owner is held unjustly deprived of "enjoyment". 4.5 years of unsuccessful common element deficiency repair measures for the plaintiff's unit, is (a duration & response) here held 'contextually' to be an 'unreasonable' shortfall of performing corporation repair duty.

The unreasonable repair finding arrives notably within the context of 3 decades of failing to address 1977 construction deficiencies in the highrise's upper floor building envelope itself.

Held short of ( Ontario Condominium Act 1998 ) section 135 Oppression, nevertheless failure of 4.5 years of corporation's common element repair attempts is held a "BIGGER PICTURE" that may include thin-skulled /special vulnerability victims ( 'you take em as you find em ').

Here, undergoing cancer treatment ie immune system compromised/additional vulnerability to mould - plaintiff owner evacuates the unit after spring 2010 building envelope failures[/b]. His own complaints were arguably listened to & rectification attempts made, but success did not occur for another 4 .5 years ! ie 'sympathetic plaintiff' : evacuation justifiable/treatments expose to enhanced (mould) health risks. All this occurs amidst decades of frustrated under-response to the general issue affecting many upper floors.

Does this defence cut it ? Should it ? :

" WAIT ! We DID OUR DUTY with the short-funding we had, even though it took the contractors 4.5 years ! It's not our fault the plaintiff was hyper-vulnerable to mould ! He chose to move out ! Why should we refund his common fees /occupancy costs etc simply because he could not occupy ?"

( Condo corporation lawyers will also be watching this closely : Almost $70 K is awarded for direct & INDIRECT /COLLATERAL consequences of unsuccessful common element repairs, almost like a residential tenant's remedy. )

Background : 1977 West Mall highrise had been deficiently built , upper floors like plaintiff’s units being inadequately constructed to exclude water. Held that reserves badly underfunded.

HELD : subjective/ apparently victim-variant, 'unreasonable' deprivation of enjoyment controversially triggering collateral costs & exemption from substantial occupancy costs.

xcrpted ( Justice Perell) :

" . . . [69] In determining whether a condominium corporation has satisfied or breached its statutory duties to repair and maintain the common elements, courts apply a test of reasonableness . . .

. . [71] As appears from the approach directed by the Court of Appeal, whether a condominium corporation has breached its repair and maintenance obligations is a fact-specific inquiry in the particular circumstances.

[72] In the immediate case, one difficulty of applying this contextual approach to reasonableness is that if one does a step-by-step analysis, then at any given step the conduct of the condominium corporation and the choices it made between making urgent repairs, temporary repairs, or permanent repairs was arguably reasonable;

however, with the benefit of hindsight, i.e., a sort of “the proof of the pudding is in the eating” approach, the conduct of YCC 340 is shown to be unreasonable.

[73] . . . YCC 340 has had a known water penetration problem for over thirty years and has not fixed the problem. This is patently not reasonable. . . . it took YCC 340 until November 2014 (4.5 years) to effect repairs that appear so far to have arrested the water infiltration problem and another year to remediate the presence of mould.

[74] In my opinion, while one may have sympathy for the difficulties confronting YCC 340 in appropriately responding appropriately to the serious water infiltration problem, they did not address those difficulties reasonably and they breached their duty to repair damage. ..."

Ryan v York CC #340 2016 ONSC 2470 issued April 13/16
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Whether another merely less extreme companion piece from Burlington ? (2411 New Street) 2016/04/17 10:00  
Is the (Ryan) West Mall above a merely less extreme version of a familiar scenario ? ( think also : the incredible sinking Richmond Hill condo ordered abandoned decades ago ? ) :

D Goonan item April 16 2016 “Condo owners fear unsafe conditions at 2411 New Street” ( Burlington) new-street/

WELL WORTH the read & also picked up by giant US site Will the Burlington story reach Canada's mainstream print medias' New Home sections paid by the building industries ?

Some Hamilton Spectator online commenters show VERY little sympathy for careless buyer diligence & cheapskate reserve underfunding. But what sort of city diligence was applied ?
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Articles appear : the waterboarding torture ( SLOW RECTIFICATION - RYAN v York CC#340) 2016/04/21 16:05  
Articles now begin to appear ( Ryan v YCC #340 ).

( Neither below cite the thin-skulled aspect of a civil victim with medical sensitivity eg to unremedied mould.

However they point to corporation's exposure to owner collateral damage awards for breach of reasonable, timely remedial efforts. Here a repair duty was under-performed more than 4 years with owner's health compelling the unit abandoned )

1- April 21/16 Jim Davidson LLB ( Nelligan O'Brien Payne LLP ) focusses on the collateral damage awards

2 July 14/16 Denise Lash LLB repair-obligations/ quote: (". . This case should be a wake-up call for condominium corporations. . . ")
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