Brian Horlick Partner Horlick Levitt Di Lella LLP
Bradley Chaplick B.Comm., J.D. Horlick Levitt Di Lella LLP
Case Law Update
Decisions From the Courts • Unit Owner Entitled to Lost Rental Income Due
to Corporation’s Unreasonable Delay • It is Not Discriminatory to Other Residents to Accommodate a Resident’s Religious Needs
The applicant, Ms. Estanol, purchased a townhouse unit in the respondent condominium corporation in August 2017 as an investment property. A brief summary of the critical facts are as follows: The 2018 Leaks On July 5, 2018, heavy rainfall led to water penetration through the roof, into the attic and bedrooms. There was also water entry in the basement, under the garage slab, and under the porch. In August 2018, after the corporation failed to act, Ms. Estanol arranged for her own contractor to re-install missing vents on the roof that caused the roof leaks. This resulted in the corporation accusing Ms. Estanol of making unauthorized re-
pairs to the common elements. However, the corporation later reversed its position. The corporation’s initial response to the basement leak was to claim that Ms. Estanol was responsible for repairs to her own unit. The initial engineer’s report obtained by the corporation was based on a visual inspection, and no water penetration tests were conducted. Ms. Estanol was then advised that the question would need to be put to the board of directors for consideration, but the issue was not discussed by the board until January 2019. The Holmes Report In October 2018, unsatisfied by the board’s response, Ms. Estanol provided the property manager with a Mike Holmes Inspection Report. Based on water penetration tests, the report confirmed waterproofing problems in the foundation under both the front porch and the garage. The report recommended permanent repairs, but the corporation did not follow these recommendations. When the corporation finally accepted some responsibility (in January 2019), it made only temporary repairs, which were not successful.
At the June 2019 court hearing, Ms. Estanol believed that the water penetration issue had been resolved until fresh evidence after that hearing revealed that the leaks had persisted. In August 2019, the corporation obtained its own expert report confirming the conclusions in the Holmes report, but the corporation had still not implemented a permanent repair by the time the court’s decision was released in January 2020. The Reasonableness Test The court cited precedent cases of Ryan v. York Condominium Corporation No. 340 and Weir v. Peel Condominium Corporation No. 485 in applying a fact-specific test of reasonableness to determine whether the condominium corporation had satisfied its statutory duty to maintain and repair the common elements. The idea behind a “reasonableness” test is that so long as the board of directors can demonstrate that it acted reasonably (for example, by following the advice of qualified experts), the court will not second guess the board’s decision-making. CONDOVOICE FALL 2020
CV
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ILLUSTRATION BY JASON SCHNEIDER
Estanol v. York Condominium Corporation No. 299, 2020 ONSC 298 (additional reasons: 2020 ONSC 1235) – condominium corporation liable for damages (lost rental income) for failing to repair common element water leak in a timely manner
