You have probably all read about the oppression remedy in section 135 of the Act. As a recap, section 135 allows an owner, corporation, declarant or mortgagee of a unit to make an application to the courts where the conduct of another owner, corporation, declarant or mortgagee of a unit “is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant.” The purpose of the oppression remedy is to protect legitimate expectations from conduct that is unlawful or, even if lawful, is considered unfair or oppressive. The legitimate expectations must be balanced against competing interests, such as the board’s duty to make decisions on repair or maintenance. The section has been described as “awesome” because it gives the judge the power to make any order he or she deems proper.
Although oppression has been claimed many times since section 135’s inclusion in the Act, very few of the applicants have been successful. Successful cases involve a declarant that refuses to relinquish control of the condominium or where a decision is made that is unfair to a minority group of owners. However, this week a decision was released where an owner was successful against the condominium not because of a decision made or an action taken, but because of the condominium’s inadequate response to the owner’s complaints.
In Wu v. Peel Condominium Corporation No. 245 an owner brought an application against her condominium alleging that it failed to maintain the common elements because the elevators were causing excessive noise and vibrations in her unit (she described it as sounding like a subway train was passing overhead her unit). She also alleged that the condominium interfered with investigations by its professionals in her unit, and refused her proper record requests. She sought, among various other orders, $150,000.00 per year for damages she purportedly sustained because of the noise and vibrations in her unit.
As a bit of background, the owner’s unit was a 1 bedroom unit on the top floor. The living room had been further divided to add an additional bedroom, which was located closest to the source of the noise and vibration – the elevator, HVAC and mechanical equipment room. There were at least 17 identifiable complaints made by the owner since 2008. The condominium did not ignore her complaints. Instead, it spent over $31,000.00 for engineers and various professionals to investigate and address the noise and vibration complaints, not including an elevator remodernization project that it undertook that was expected to reduce the noise and vibrations in the unit.
The court found that the condominium had acted in an oppressive manner toward the owner. The condominium’s own expert agreed that there was a noise problem in the unit. The condominium’s attempt to argue that the owners caused or contributed to the problem when they added the second bedroom only “supports Ms. Wu’s allegation of unfairness.” The condominium also ignored one of its experts’ recommendations when making the repairs; it used 1″ thick isolation material instead of 2″ thick material. The court found that although the condominium had done “a lot of investigation”, it had done little or no work to solve the noise problem. There was no evidence to support the condominium’s position: no estimates for work to be completed; no financial statements on the burden; no competing interests to be balanced; there was nothing to support their inaction.
On the issue of the appropriate remedy, the court order the condominium to report back on the work to be undertaken within 45 days. It appears that the judge thought the owner’s depiction of events was too dramatic or exaggerated to support the damages claim. As a result, the owner’s claim for damages was greatly reduced from $150,000 per year to $30,000.00 total. The issue of costs has not been decided.
This case should serve as a wake-up call to all directors: you cannot ignore (or react too slowly to) complaints made by owners, especially when your own expert agrees that there is a problem! It should not matter if the complaint is noise, smoke, odour, or water penetration. Failing to address complaints in a timely fashion could result in a claim against the condominium for oppression, like in this case. Even worse, it could mean a claim against the directors for failing to fulfill their duties under the Act, which could lead to the directors being personally responsible for some or all of the costs.
Sticking your head in the sand is not an option. Neither is dragging your feet!