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Owners’ LONGPAST d.i.y. toilet servicing triggered master policy INSURANCE DEDUCTIBLE DOWNLOAD 2020/09/01 13:37  
( that's : to fund restoration costs - below the corporation's deductible after insurable loss - in the form of a unit-specific addition to a unit's common expenses where lawful )

Not legal advice as usual.

A Superior Court Judge has rejected an application by the owners ( of what appears to be a deductible-insured condo unit ) to strike down a chargeback of the master insurance policy deductible and accompanying civil demand activity.

The corporation's master insurance policy deductible was charged back to the unit for toilet overflow damage to a lower unit & common element flooring.

The corporation adjudicated internally that the overflow triggered its 'circumstances-extending' insurance deductible by-law under the still-applicable May 4/5 2001 version of the Ontario Condominium Act S.O. 1998's section 105 ( 3 ).

The owners ( and apparently their own deductible insurer ) are stated to have protested but quickly paid the chargeback under protest and began judicial appeal.

The decision cites that starting such civil process itself triggered formal liening including of additional $4.2 K collection costs also onto the unit title. ( Para 7 cites such was next paid by the complainants' insurer )

The amount as next liened, almost doubled the corporation's claim to more than $ 10 K . ( If the chargeback stays validated, the additional collection costs presumably are a moot issue due to wording of Lien section 85 and likely whatever is in the by-law ).

1 - The circumstances-extending bylaw. AND is full negligence needed to support downloading - ?

The decision unfortunately does not cite the text of the circumstances-extending bylaw.

But it does indirectly suggest that ( to trigger the download ) the By-law requires something blameworthy by the owners of the overflowed toilet even if short of proven negligence.

( The judge's references in the text are :

“ . . . [5] The Condominium’s By-Law No. 1 states that where a Unit owner commits an “act or omission” which leads to damage, the owner will be liable etc . .

[6] The Lozanos maintain that they have not committed an “act or omission” that would render them financially liable for these costs. . .

. . [12] Pursuant to this authority, TSCC No. 1765 has enacted By-Law No. 1, which, at section 12.03, reiterates that owners who cause damage to their units through “acts or omissions” will be liable for etc . . ” )

And of course the judge ultimately decides that that whatever the 12 month previous simple component replacement, it triggered downloading merely for failure to summon a plumber to do that job and look for structural failure in the plastic components . )

2 - Was the deductible properly triggered by the simple component being replaced D.I.Y instead of by a plumber ? DIYers may hate this given the simplicity of what was done a year earlier. Is it best to let stuff go or suck up the cost of a plumber or whatever for a very simple job ?

Treated centrally to upholding & applying the by-law here is an interesting leap by the civil judge.

Factually held is that the source toilet ( ? whether 13 years old at that time after 2006 registration? ) had never required service except for the owners' own DIY do-it-yourself simple replacement of a ballfloat that had lost its water-tightness. Pretty simple stuff unless someone is really incompetent.

That fairly simple DIY task is accepted to have occurred a FULL YEAR BEFORE before the toilet overflowed.

BUT the corporation's plumber claimed to have post-event found that the ballcock or water sourcing component inside the toilet tank / reservoir was somehow crushed ( ? ) allowing water to ultimately flow unchecked into the reservoir and somehow to ultimately overflow outside the toilet.

Could the toilet have functioned for a full year after the DIY floatball replacement if the owners had earlier somehow botched the component switch ?

3 - The rejection waves the magic wand to hold against the objectors that the circumstance-extending by-law was properly triggered.

That's explained as :

IF the owners had summoned a plumber 12 months earlier, the professional would have noticed deterioration.

And the entire components - ? $30 plus labour ? - would happily have been replaced .

4 - If this is appealed with the insurer's backing, the wording of the by-law will be of interest.

If the unquoted by-law meant mere strict liability, would such lower threshold trigger liability for any last hand to ever have been laid on a toilet's working components ? Or on anything else ?

As the judge analogizes this, should servicing a simple toilet be considered parallel to annual ( TSSA compliant ) certification of residential furnaces ? Or to 10 year certification of residential oil tanks ?

5 - Turning such liability issue partially around, what will the condo corporation's insurer likely be arguing to deny liability after its common element tree falls across the property line and crushes a neighbour's garage and John Deere ? That's a year after it trimmed some limbs ? Or had to rake up fewer leaves than 5 years earlier ? .

Or what should be argued if the five year old risers spring a major leak for the first time and damage owner contents ?

Or a first time leak occurs in its roof nowhere near its design age and damages townhouse contents ? Both after some minor servicing . . .

6 - Judge got the final word this time. DIYers may not like it at all :

quote :

" . . . [16] The parties agree that the standard for establishing an act or omission is neither negligence nor strict liability, but exists somewhere between the two.

[17] Notably, proving an act or omission does not depend on a finding of negligent behaviour. . .

[18] The case law is clear on this point. Although owners must act reasonably in the maintenance of their units, an unforeseen incident will not absolve a unit owner of their financial responsibilities towards repair costs . . .

. . .[23] Indeed, in this case, the Lozanos appear to be advocating for a system based on proving negligent act or omission; absent which, no unit owner could be held financially responsible for the cost of repairs.

[25] This is not a case where the unit owners were negligent in their care and upkeep of the Unit. Rather, this is a case where the failure to retain a plumber who could make thorough repairs constitutes an omission for which the Lozanos must be held responsible.

Further, while the Lozanos were conscientious in arranging family and friends to check on the Unit during their prolonged absence, it would have been additionally prudent to have shut off the water to the Unit during their trip.
Doing so would presumably have mitigated against any damage of the kind suffered here and is reflective of the level of care and diligence that is expected of condominium owners.

[26] In summary, I find that the Lozanos committed an [b]act or omission in failing to maintain their ensuite toilet unit and have it attended to by a plumber "[/b] - unquote

Lozano v. TSCC No. 1765, 2020 ONSC 4583 issued July 28/20
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what's "cause" ? 2020/09/01 15:39  
Not legal advice. Unhappy DIYers maybe should check out Canada's Supreme Court BUT FOR decision in Clements v Clements to see what causation means.

Maybe civil judges know little about physical repairs but are justifiably fearful of highrise water damages.

And in perspective it's worth remembering that the May 4/5 2001 legislation left lots of loose ends. Looks like there is lots of ambiguous scope for a section 105 ( 3 ) by-law to 'extend the circumstances'.

More recently ignored were warnings to the legislature committee about the ambiguous status of pre-existing deductible bylaws . . .

So does this also mean ? : Put your tools away ? Or just let the toilet run ? Or better hire a lawyer to help with D.I.Y work on the unit ? Or don't buy any condo nor strata at all ? . . .
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Divsional Court REJECTS INSURER'S APPEAL - $ 10 K QUICKY LIEN for $5 800 fix 2021/02/09 19:03  
Not legal advice, as usual.

Condo unit owners' subrogated insurer appealed & lost a $ 5, 800 fix escalated to $10 K quicky lien.

Consider then what incentives there are now to appeal when owner-insured deductibles are heading beyond $ 50 K and $ 100 K . . . .

The update : 6 months after a loss in lower court, on appeal the unit owners' subrogated insurers have failed to persuade a reversal by a Divisional Court panel.

That panel treats the ( 12 month earlier ) self-repair aspect as a sorta shaky part of the original judgment.

But it upholds the deductible chargeback on the basis of :

( a ) - the 2nd reason cited in ONSC : that pre-departure vacationers should have turned off the unit’s water supply

and adds

( b ) pre-departure vacationers should have arranged more frequent check-ins than every two weeks.

Is this the rationale hinted : this is how we read what the Legislature wanted to make available. ( Almost : ) : if it came from the unit, then it's blameworthy damage. What us worry ! . . .

Not the same in lots of scenarios outside the condo / strata universe . . . eg " Your healthy-looking tree just fell on my garage ! As a victim, if something damaging physically comes from your property as a victim I think you should suck up my loss caused by your tree ! "

( But civil justice has gone deep towards requiring some negligence & forseeability. Just for non-condo property insurance claims generally that's the usual rule. It ain't like throwing a chair off a highrise balcony ! ) . . .

So will this be where unit insurers leave it with deductibles a-soaring ?

Lozano v T.S.C.C. # 1765, 2021 ONSC 983 issued Feb 8/21
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