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#19265
Arbitrable $1,500 garage power wash became $170 K LITIGATION COSTS; LANDONT v Frontenac CC # 11 2021/08/27 18:12  
Not legal advice as usual.

A Toronto lawfirm's recent article about a Kingston Ontario condo dispute, has shone some light on the sometimes expensive legacy of sloppy Declaration drafting.

For disputes about site-specific instruments like Declarations, again looks like it can be horrendously more expensive to litigate rather than using A.D.R. alternative dispute resolution. ( This ain't in the legal article )

Also uncited is that the landmark 2019 Supreme Court of Canada decision TELUS v Wellman & others would arguably indicate that ONSC Ontario Superior Court should have specifically addressed ( under section 7 of Ontario's Arbitration Act ) exactly how & under what authority it was bypassing A.D.R. here. But such ain't there at all . . .

The 1981 Declaration had managed to leave what has turned out to be a significant gap in sorting out maintenance obligations with respect to a multi-level parkade.

And also a critical loose ownership boundary between the upperlevel unit owner ( LANDONT'S commercial parking unit ) , and the lower level being condominium common element dedicated to the parking of residential owners.

Twenty years after an ad hoc fix appears to have just kicked the can down the road, LANDONT as current owner of the upperlevel refused to pay for periodic power washing of its deck. The concern was salt & chemicals leaching downwards & compromising the membrane-protected slab of the common element lower level.

A $1,500 power wash ( to address those ) was disputed as well as who owned the membrane technically OUTSIDE the 1981 Declaration boundaries.

Frontenac C.C. # 11 appears to have largely tried to play its cards correctly but unilaterally entered LANDONT's unit , had the deck power washed and ultimately liened LANDONT's unit. at least it had proposed mediation.

Bottom line :

Court instead of arbitrator (ex parte if necessary) ultimately has sorted out the gaps. Maybe reasonably too. But instead of by M&A at what costs !

Costs decision later refuses to award either of the "mixed-success" litigants costs exceeding $170,000 in dispute over who pays for $1,500 power wash.

Looks like waving of magic judicial wand to fill blanks in the 40 year old Declaration, but it looks not clearly unreasonable that power wash can be charged back against LANDONT as "Work Done for Owner" - Act's s. 92.

About this mere Declaration dispute one sees NO reference at all to judge's gate-keeping analysis if any under Arbitration Act / 2019 Supreme Court of Canada TELUS v Wellman & others( see https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=19262&catid

The article well worth reading :

Aug 25/21 “Unit owners are required to carry out preventative maintenance” by Jonathan Miller & Megan Mackey ( Shibley Righton LLP ) https://www.srcondolaw.com/newsletters/2021/8/25/unit-owners-are-required-to-carry-out-preventative- maintenance

The judicial outcomes :

Landont Ltd v. Frontenac C.C. # 11 ( 2021 ) ONSC 4189 issued June 10/21 https://canlii.ca/t/jgcxv

Landont Ltd v. Frontenac C.C. # 11 ( 2021 ) ONSC 2069 issued March 18/21 https://canlii.ca/t/jdvbv
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#19269
a reasonable Declaration PATCH-UP ? Or is there some sorta "DUTY OF PREVENTATIVE MAINTENANCE" ? 2021/09/05 15:34  
not legal advice. A sorta subtle aspect . . . .

1 - Was this a "reasonable" re-draft of the 40 year old Declaration & Description ? ( note : cites there had originally been NO membrane at all. Nor presumably any express duty on the upperfloor unit owner to specifically power-wash its garage floor )

A credible answer seems to be YES. It's at least not clearly unreasonable, and with better skillsets the original Declaration might have provided EXACTLY how this judge has re-drafted it here.

Too bad it has cost the litigants $ 170 K to find this out .

2 - IS THERE A "NEIGHBOUR DUTY OF CONDO PREVENTATIVE MAINTENANCE" ?

a - In a forest of creations of statute like condominium components, is it valid to judicially "deem" or magically create some sorta duty apparently out of thin air ?

Where alleged non-expressed duties are getting disputed, Canada's Supreme Court in 1991 modified the English & Welsh test from Anns v Merton Borough Council ( 1978 ) A.C. 728 ( H.L. ) https://www.casemine.com/judgement/uk/5a8ff8ca60d03e7f57ecd7a9 . See Cooper v Hobart ( 2001 ) SCC 79 canlii 3 SCR 537. https://canlii.ca/t/51xc BUT

One looks in vain for this high-priced stuff here.

( There 's an awkward reference to an Ontario condo mould dispute : a unit owner was unsuccessfully accused of causing her own mould problem, not of damaging the common element. )

b - Trying to deal with this, simple folks like me might even turn ( for simplification ) of liability actionable in the case of a defendant owner's TREE, where such property owner negligently ignores visible rot or visible decay or visible absence of several springtimes' worth of foliage . Sorta like "visible warning signs of no longer normal wear & tear" ( but for tree-life warning cycles ).

BUT WHAT IF THERE'S NO "VISIBLE INDICATOR" ( of decay ) ? ( Or both neighbours even deny it's their tree ? ! )

And then the tree mischievously falls across a property line & smashes some neighbour's outhouse or brand new tractor . . . . ? ( The victim better have insurance, and may have to suck up a deductible. That's frequently found after a victim dares sue the tree owner without provable prior negligence . )

Trying to extrapolate to pre-emptively power-washing a garage to avoid damaging a hidden membrane - disputed but here held owned by the neighbour downstairs - is there a parallel ( negligent ) want of due care ?

Or even breach of section 92 ( Ontario ) Condo Act owner maintenance duty. That's where there's allegedly been an omission of a duty normally done amidst ongoing addressing "normal wear & tear" ?

In other words, that's specifically where power washing / removing lawful leachable chemicals is claimed as here to trigger a "preventative maintenance" duty. A duty said arising from an omission of "normal" maintenance which - IF failed - could damage the neighbour below.

( Sorta like starting from "neighbour duty" getting magically kicked around 90 years ago in product liability claims like the landmark Donoghue v Stevenson [1932] UKHL 100 (26 May 1932) https://www.bailii.org/uk/cases/UKHL/1932/100.html )

And even to next skate onside a unilateral entry to power wash followed by a CONDO LIEN ?

In the original "falling tree" comparison, suppose the neighbour with the outhouse had pre-emptively entered without permission & chain-sawed the tree ? Imagine if a healthy or not yet rotting tree were felled ? Or even felled outrageously onto the tree-owner's house ?

Things are less clear where there a critical Declaration gap. And here the risk is in some way arguably "latent" - less obvious than some tree tilted toward the neighbour's outhouse.

The March legal decision expressly cites a "duty of preventative maintenance" whose omission despite only normal wear & tear could be followed by side-effect damage to the neighbour's component.

ANYWAY the legal article's author alertly picked that up ( article's title : “Unit owners are required to carry out preventative maintenance” ) .

( At the risk of mixing metaphors, wonder if a unit owner could unilaterally just chop down a nearby common element tree looking fragile ? Or unfairly ruining the waterfront views ? And then just bill the condo corporation for rectifying an alleged breach of duty ? )

* * From the decision :

" . . . [23] Having found that the membrane forms part of the common elements, it ( sic ) follows that the maintenance and repair of the membrane arising from normal wear and tear is the responsibility of FCC 11. . . .

[26] That does not, however, end the matters in dispute between the parties.

[27] Section 90(2) of the Condominium Act creates a distinction between repair after damage, and maintenance after normal wear and tear.

While maintenance of the common elements is the responsibility of FCC 11, responsibility for damage to the common elements caused by the use of Landont’s unit which is not the result of normal wear and tear rests with Landont. . . .

. . . . [33] Where there is a dispute between the responsibility of a condominium corporation to repair and maintain the common elements and a unit owner’s responsibility for damage which it causes to the common elements:

a. The determination of who is responsible for the costs of performing remedial work is a fact-specific exercise, which is dependent on the source of the damage;

b. A court is not tasked with making a factual finding regarding the source of the damage with any absolute certainty but, rather, must assess the evidence before it; and

c. In assessing the requisite scope of work necessary to repair damage to the common elements, the proposed scope must be reasonable and perfection is not required.

. . . [37] Although responsibility for repairing the membrane falls to FCC 11, I agree that Landont’s responsibility to maintain its unit includes keeping the parking lot surface clean and to undertake preventive maintenance to mitigate the effects of ordinary wear and tear.

. . . [45] Landont has a responsibility to keep the parking deck swept and clean and to undertake preventative maintenance to mitigate the effects of everyday wear and tear. . . .

The reports obtained by the parties and common sense suggest that a failure to keep the parking area swept and clean will have a negative impact on the deterioration of and damage to the concrete surface of the slab, including the membrane which is embedded into it.

It was therefore reasonable for the Board of FCC 11 to power wash the parking area when, in the Board’s judgment, Landont should have, but failed to do so.

. . . . .[52] . . . I would, however, suggest that in the future . . . . . that it give Landont an adequate opportunity to respond to such concerns prior to taking unilateral action, and then going after Landont for the cost of doing so. " - unquote
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