Not legal advice.
ONSC Ontario Superior Court of Justice has awarded $ 30 K damages to a Toronto condo owner whose application is
found to have met the steep onus of establishing section 135 Oppression against her condo corp. That's by a familiar two part analysis.
Holds that there was a multi-year oppressive shortfall of meeting reasonable expectations in trying to halt or reduce garbage chute / garbage room noise & vibration reaching her unit which she knowingly & willingly had chosen to buy in 2010 next to the garbage room.
That unit is described as the sole ground floor unit and sharing a demising wall with that garbage room. That's what she chose.
Given that "the silence of the tomb" is an unlikely expectation for anyone, there might be judicial difficulty in sometimes finding a bright line. Then there's the rate or diligence or sincerity or whatever of the response ( aspect ). A potentially interesting comment on governance decision-making ( and how a judge might look at it . . . )
Judicial notice was taken – but how decisive was such ? - of the respondent corporation’s discontinuance of remedial attempts after the applicant began litigation.
More remedial work & co-operation is also ordered, costs to come .
( The judgment was articled by ToStar's realty law columnist & frequent CBC go-to expert in today's July 9/22 print edition.
"Court awards $ 30K in condo noise ruling" pg H2 )
Wong v. TSCC # 1918 ( 2022 ) ONSC 3409 issued June 7/22
https://canlii.ca/t/jpvj4xcrpted :
" . . . [81] Furthermore, I find that the Corporation advice to Wong’s lawyer that no further remediation work by JAD would be done unless and until Wong rescinded this application was inappropriate.
This response suggests that the Corporation has engaged in reprisal against Wong in light of her decision to start this proceeding and is an unacceptable response. [82] Accordingly, Wong has proven that the Corporation is in violation of s. 135 of the Act with respect to the lack of timeliness of its responses and its decision to stop work as a result of this application as having unfairly disregarded her interests as a unit owner.
[83] The appropriate remedy in this case is an award of damages under s. 135 of the Act (Wu v. Peel Condominium Corporation No. 245, 2015 ONSC 2801, at para. 172) for the period of time from 2017 to 2021.
In Wu, the court recognized that it had to do the best it could on the basis of a limited written record concerning assessing the appropriate quantum of damages under s. 135 of the Act. In that case the court found that Wu had been left in a “difficult situation” for almost 5 years as a result of having to put up with elevated noise created by the condominium corporation’s elevator modernization. It assessed damages at $30,000.
Similar to the case before me, the court found that the condominium corporation had dragged its feet on the elevator modernization program to the detriment of Wu.
[84] In this case,
Wong has had to endure unacceptable noise and vibration levels while TSCC No. 1918 reacted in a piecemeal fashion and then, impermissibly stopped the work it had authorized to remediate the noise when Wong exercised her legal right to start this application. I am assessing damages at $30,000 to reflect the interference with the use and enjoyment of her unit as a result of the ongoing excessive noise and vibrations caused by the use of the garbage system. . . ." - unquote
