again NOT legal advice

Should a 1982 Declaration now be amended judicially under the (Ontario) Condominium Act 1998’s section 109, in order to "slope-shoulder" / rectify ? / revise duties & costs of FIREPLACE FLUE RECONSTRUCTION & MAINTENANCE ?

With ( certain private unit ) fireplaces ordered shut & major restoration costs overdue for years, should a judge now "download" full duties & costs as to common element flues from the general ownership. That's to download such onto the upper floor units served unit-by-unit by the vertical venting flues at issue ?

The vents serve fireplaces on the four top floors of a Toronto central core residential condo. Four floors of unit buyers paid ( & their lenders relied on ) those - for almost 40 years - being common elements burdening the general ownership like any other exhaust drain or outlet.

Restoring them to safe operation, arguably will cost at least a half million dollars.

The Board has shut them down since 2013, triggering counter-demands for an oppression remedy.

Instead of re-constructing the common element flues at general owner expense, the pair of amendments sought by the Board of the Wellington in Toronto's downtown core, would slope-shoulder, revise or rectify the duties & costs - depending on one's opinion - DOWNWARDS onto certain upperfloor condo owners of unit-dedicated condo fireplaces.


Within the ONSC judgment is that the 1982 unit boundaries are cited to NOT include the fireplace flues running to rooftops and venting each unit-dedicated fireplace. Like similarly undesignated drains or vents where also dedicated to specific units . .

Further the Declaration expressly even imposed onto ALL owners / onto the condo Corporation itself as a general duty to maintain/reserve fund/ replace periodically, the burden to repair & maintain all common elements AND ( any ) exclusive use common elements ( of which the fireplace owners cite there are none anyway ).

But Ontario's Condominium Act 1998 allows a judicial amendment route. That's instead of Declaration changes by legislative change, owner consents, expropriation activity or Land Titles correction etc.

As seen at other CAFCOR topics about applications for judicial changes, the current Act's judicial option is limited at section 109 (3 ):

Grounds for order

(3) The court may make an order to amend the declaration or description if satisfied that the amendment is necessary or desirable to correct an error or inconsistency that appears in the declaration or description or that arises out of the carrying out of the intent and purpose of the declaration or description

So how much of the cost struggle is really about "error or inconsistency" allegedly within the 1983 Declaration ?

Mr Justice Sanfilppo :

- thinks the 24 vertical flues outside the unit bounds, should have been “exclusive use” appurtenances to respective fireplaced units, not a mere conventional venting or pipe outlet

- so agrees to update / amend the 1983 Declaration by converting the common element flues into Exclusive Use unit-dedicated appurtenances, from Common Element, and to add a Schedule F notifying the modern Ontario universe accordingly as since 2001

- but refuses to expressly judicially amend the Declaration by down-loading flue repair & maintenance duties & costs onto the units to which such WILL BE dedicated appurtenances under what he has approved.

What's this mean ?

INSTEAD BY A ( NON-JUDICIAL ) OWNER CONSENT PROCESS are there enough consenting non-fireplaced owners down below to instead now override any opposition from the topfloor owners with fireplaces ?

Amendment instead by owner consent under the Condo Act 1998's section 107 would appear here ( see 7(4) e ) to have to trigger a NINETY PER CENT 90 % owner consent process to download the duty & costs.

Tantalisingly, the 24 fireplaced upperfloor units literally are TWENTY PER CENT 20 % of the 120 unit total. Would it be sorta like a process to exempt lower floor folks from elevator refurbishment costs ? Or the blind from paying for artwork ?

More to come. Condo Boards need to seek & rely on competent legal professionals to get through complex stuff like this . . .

( PS Every home in my waterfront Building Scheme has at least one fireplace. Having heated 99 % by high-efficiency woodstove for 6 winters at our previous Building Scheme, I found "the wood experience" such that I haven't struck a match in our fabulous fireplace since 2010 ! City folks, respectfully, may be better served by tuning into the Fireplace Channel . . . But how much costs should general owners use the courts to download ? )

M.T.C.C. # 590 v Registered Owners 2019 ONSC 4484 issued July 25/19 http://canlii.ca/t/j1njp

Not legal advice as usual

Is it an example of Pandora's Box from Greek mythology ? Or the Sorcerer's Apprentice from Goethe ( 1797 ) getting into stuff far too deep and later magically cartooned by Disney in Fantasia (1940) ?

Was this cost-shifting dispute even about allegedly considering amending an "error or inconsistency" in the first place ? Without which a judicial intervention would have NO legislative platform under Ontario's Condominium Act 1998 ?

Whatever the eventual outcome will be, ONCA Ontario's Court of Appeal has effectively re-written Superior Court's earlier layout of judicial amendment.

This latest outing heads the process even further against the upperfloor fire-placers. ( Yes, there may have been resentment against those owning such units )

Arguably unless appealed this may doom some or all of the the upper-floor fireplaces.

That's despite their being Declared in 1982, re-marketed from time to time between owners for almost 4 decades, and periodically mortgaged - all without ever being designated exclusive use by any of the parties ! Without ever being anything but left as common element components.

It's worth bearing in mind that - whatever one thinks or envies about the fireplaced upperfloor owners, the Declarant, all owners & all lenders have never had an interest on title other than concurrent with them being anything but common elements.

Waving the magic judicial wand to designate something not done by the Declarant nor generations of owners, ONCA not only moves to RE-baptize the flues as "exclusive use" / modern Schedule F territory.

It effectively now moves to lay the costs of reconstructing the common element flue systems onto the fireplace unit owners.

Awkwardly ONCA appears to be sending parties out for more negotiation derived from ONCA view that “intention” of the Declarant / 1982 Declaration should be re-booted that replacement after wear-out to now be funded by fire-placers alone.

ONCA discusses "intent"

( Remember that the judicial scope to amend under the Act's subsection 109(3) is "error or inconsistency that appears in the declaration or description or that arises out of the carrying out of the intent and purpose of the declaration or description ? )

Is there some sort of "intent and purpose" problem here ?

BUT maybe this is exactly what the Declarant and originators wanted ! : The Declarant may well have wanted to max the value of the fire-placed units. And to be paid extra for erecting shields against them subjecting the fire-placed unit owners to eventual costs replacing them at end of life ?

Wasn't this a more credible "intention" under section 109 ? Or more consistent with Declarant thinking at least in 1982 ?

Finally, the Oppression counter-claim is still to come : presumably now at most to address only to compensate for the condo corporation's failure to repair the reserve-funded common element flues after 2013 to now .

M.T.C.C. # 590 v Registered Owners 2020 ONCA 471 issued July 21/20 http://canlii.ca/t/j8qf9

Not legal advice of course.

A shaky flu season joke that unfortunately might not cheer up the upper-floor fireplacers after their latest November 24/20 further setback at Ontario's Court of Appeal :

"Last winter, a lot of chimneys near me collapsed. It was the worst flue season in years."

Against the fireplacers Ontario's Court of Appeal has just ordered what it had in July attempted to persuade for altering the 1982 Declaration wording.

Against the upper-floor fireplacers ( 24 of 120 units ) , both Superior & Appeal Courts have arguably over-written the relevant total absence of the deteriorated fireplace flues from the 1982 Declaration's unit & common element boundaries and descriptions ( Further, like statements about unicorns or anti-gravity for example, this sorta bigtime absence could credibly be construed to override any hypothetical shared or inconsistent maintenance or repair reference within component standard form maintenance sections ).

Further, in this 'error or inconsistency' judicial exercise under Ontario's Condominium Act 1998 section 109 there appears to be nothing found that gives lip service to resolve ambiguity in favour of the weak owner.

These give cursory rejection of a parallel between flues and drains or vents, and apply retroactively onto a 1982 Declaration a post 2001 distinction :

between a "maintainer" burden of end-of-life DETERIORATION ; and a statutory duty to replace AFTER DAMAGE.

In context this retroactive process also recalls comments published almost 20 years ago by Toronto Star condo columnist lawyer Gerry Hyman : that many earlier Declarations might now tend to run afoul of defining the verb "maintain" to include restoring after end-of-life deterioration ie not from sudden "damage".

Facing a restoration bill above the 2016 estimate of $ 1.5 M , will the fireplacers try to join the narrow six or eight per cent of appellants whom Canada's supreme Court might hear ?

Xcrpt of ONCA Nov 24/20 : ” [3] . . . . In particular, the respondents fail to acknowledge that there is a difference between the duty to repair and maintain after damage, and the duty to repair and maintain after normal wear and tear.

It is the difference between those two duties that underlay the dispute between the parties, and it was the difference between those two duties that was not clearly delineated in the Declaration...” - unquote.

Anyway the 3 fireplace outcomes so far :

# 3 ONCA M.T.C.C. # 590 v Registered Owners 2020 ONCA 749 issued Nov 24/20 http://canlii.ca/t/jbr2v

# 2 ONCA M.T.C.C. # 590 v Registered Owners 2020 ONCA 471 issued July 21/20 http://canlii.ca/t/j8qf9

# 1 ONSC M.T.C.C. # 590 v Registered Owners 2019 ONSC 4484 issued July 25/19 http://canlii.ca/t/j1njp