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Tough to get OPPRESSION REMEDY for nuisance under-response by management : MOHAMOUD v CCC# 25 2019/12/30 19:33  
This ain't legal advice. Respectfully indicates why seeking Ontario's section 135 Oppression remedy needs professionals or the skillsets of legal professsionals.

Although represented by experienced condo lawyers, a topfloor complainant at a vintage eastend Ottawa condo building looses a(n Ontario Condominium Act 1998 ) section 135 Oppression application.

Her claim targetted how fast or slowly - & arguably how well or poorly - her condo corporation responded to her complaints of nuisance rooftop system noises / vibrations etc . coming at her from above her topfloor unit.

Were these so unreasonable as to even trigger an Oppression remedy ? Like any plaintiff she bears the onus of proof on balance of probabilities, and the "technicals" are far from simple. Other unaffected owners may see little to gain from pressing for an isolated owner's prompt & reasonable remedy at the general expense.

But she gets an adverse judicial outcome even after it took her condo corporation almost THREE ( 3 ) years to even get around to an “on and off test” of the rooftop fans above her unit ! ( Yes I get it : takes bucks, time & labour in short supply ).

In Ottawa, condo ( & arguably Building Scheme ) governancers usually get pretty fair treatment.

B.C. ( & an Ontario ) judgments quoted however suggest that there may be wider judicial fear of opening the floodgates to Oppression type kvetching about noises or nuisance etc that possibly might have been less likely in lowerfloor units far from elevators / rooftop systems etc.

Upfront, the Ottawa management had also taken SIX ( 6 ) months before anyone even bothered to visit the complainant’s unit in response to her initial complaint.

The complainant's initial requests had expressly cited noise / vibration like rooftop fan(s) directly above her unit.

AND that's exactly what the governancers finally got around to replacing but more than FIVE YEARS LATER !

Parties are indicated to now agree that nuisance has been reduced to some level of tolerability after the rooftop fans were eventually replaced as pointed to 5 years earlier.

The judicial hurdle erected here against a section 135 Oppression remedy, seems to divurge from the opposite 2015 outcome in WU v Peel C.C. # 245 issued May 6 2015 Ms Wu in 2015 successfully obtained an Oppression remedy due to years of then - still unresolved elevator noise & vibration.

Unlike the latest Dec 2019 Ottawa outcome, there had still been no halting of Ms Wu's nuisance of at least FOUR years by date of judgment. But arguably the performances otherwise differed little.

WU is not even discussed in the recent Ottawa judgment. But it must have been cited by the complainant’s counsels ! Did it get ignored ?

( Wu and this latest, are not the only litigation outcomes from Ontario to address remedying noise / vibration issues, which may be anything but a quick cheap fix. )

Upcoming comments hopefully will include urging diligence about older buildings & units vulnerable to rooftop noise, elevators, garage doors etc. Without enough competence, patience & trust, the most difficult remedial scenarios seem to readily slip into a disturbingly similar narrative. . . .

Mohamoud v. Carleton C.C. # 25 (2019) ONSC 7127 issued Dec 9/19
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Tough to get OPPRESSION REMEDY for ( nuisance ) under-response 2019/12/31 16:59  
Dec 15/19 CanIIConnects : “Suing a Condo Corporation for Repairs is a Risky Business”by lawyer Pater S. Spiro

Worthwhile review of this latest outcome, and discusses obstacles to persuading an Oppression remedy.

The article cites a complainant victory – BUT losing a SECTION 135 Oppression claim - in Ryan v Y.C.C. # 340 ( 2016) ONSC 2470 issued April 13/16 which awarded $ 69.7 K plus costs to an East Mall Etobicoke longtime water damage victim suffering mould exposure etc while fighting cancer. . . That 2016 finding of unreasonable response but short of a section 135 Oppression remedy, was a 2016 CAFCOR topic at
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LOSS BROUGHT HUGE COSTS : MOHAMOUD v CCC# 25 2020/02/01 16:39  
Again not legal advice.

An Ottawa judge has allocated costs after a condo owner lost an attempt to obtain a ( Condominium Act 1998 ) section 135 Oppression remedy for the pace of abating noise from rooftop corporation systems fans.

How slow was the abatement ?

Remember respectfully that it took management 6 months to even physically respond in person to her reports ( of what may not have been audible for several years after she bought the unit ). And that OVERALL it took THREE YEARS to even get an ON/OFF test of those closest fans ( expressly cited in her original request ). And ( overall ) FIVE YEARS to get the noise abated to “tolerable” levels. No one argues that such noises are quick easy fixes. One might suspect that the aged structure may have subtle structural complications.

The unsuccessful section 135 applicant is ordered to suck up $70 K of the condo corporation’s declared “ full indemnity” costs of $ 90 K apparently for legals & eligible engineering .

Hopefully none included periodic system servicing costs that would have been incurred even if Ms Mohamoud had never complained at all.

Complainant Mohamoud declared to have incurred her own purely legal costs / disbursements of more than $ 66 K. This means that she will unfortunately suck up at least $ 136 K for this lesson. Hope the noise is tolerable now.

Noteworthy is that before the Dec 9/19 judicial decision rejecting her application she had apparently turned down a late stage offer by the condo corporation to settle without sucking up their substantial costs to such date.

Such may be among the risks & complexity of DARING TO LEGALLY CHALLENGE what some might see as glacially SLOW RESPONSE to complaints alleging nuisance due to building systems. Over 5 years Carleton CC # 25 apparently spent $50 K just on investigation & rectification. An ostensibly sincere management response appears prone to get wide judicial deference at least in Ottawa.

COSTS imposed : Mohamoud v. Carleton C.C. # 25 (2020) ONSC 676 issued Jan 31/20
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Tough to get OPPRESSION REMEDY : MOHAMOUD v CCC# 25 2021/04/03 11:19  
Not legal advice.

ONCA Ontario's Court of Appeal has firmly quashed Ms Mohamoud's appeal.

BUT 6 months to get an upfront visit ?

3 years to even get a shut-down test ?

Only a partial fix after 5 years ?

But choosing top floor unit - in a possibly 50 year old Ottawa East building vulnerable to city traffic noises ( west of Montreal Rd / 417 express interchanges ) may have left scope for alternative defences as raised.

Oppression claimant faces burden of proof, NOT the respondent condo corp. Here Ms Mohamoud & counsel faced defences of mere reasonable effort far short of perfection ; $ 50 K investigation costs proven ; at leas a partial remedy reduced to tolerable level of disruption. Note also judicial citations of precedents bringing “within reasonable expectation” imported by courts from commercial disputes eg BCE shareholder war.

One PS : Had there been rooftop system relocations or additions during the years before her complaints ? Was the 50 year old roof ever designed or built for modern systems or where the systems are now positioned ? Have the roof components deteriorated ? Was there some sorta resonance between otherwise within "within tolerance" systems ? Could judges grasp that ?

Mohamoud v. Carleton C.C. # 25 (2021) ONCA 191 issued March 29/21
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