Legal

January 17, 2023 Published by South Alberta Chapter - By Kate Kozowyk

When Remediation is Required

From the Winter 2023 issue of the CCI South Alberta CCI Review

A recent decision from the Alberta Court of Queen’s Bench, Trevor Dunn v Condominium Corporation No 042 0105 and Celtic Management Services Inc., 2022 ABQB 516, serves as a useful reminder to Condominium Corporation Boards and their Property Managers to ensure that when remediation is required pursuant to the Bylaws or the Condominium Property Act, the Board commences that remediation without unreasonable delay, noise or other issues that inconvenience the Owners affected.

In Dunn, the Condominium Board was required to replace the roof of a condominium building due to water ingress in 2014. The contract with the roofing company stated that work was to take place from July 2014 to November 2014, but significant delays resulted in the work taking place from October 2014 to November 2015.

The Plaintiff (Mr. Dunn) owned the penthouse unit of the condominium, which he rented to a tenant. The tenant complained about noise, windows being boarded up, inability to access balcony, and heating issues during the roof construction. As a result, Mr. Dunn subsequently decreased the rent of the unit from $5,500 to $2,500 a month during construction and thereafter filed a Statement of Claim against the Condominium Corporation (the “CC”) and the Property Manager (the “PM”) for lost rent due to nuisance.

The Defendants (CC and PM) argued that the interference presented by the construction was trivial, and alternatively, that it was reasonable in the circumstances. The Court looked at the severity of the issues experienced by the Mr. Dunn’s tenant and concluded that they were far more than “trivial” or a “slight annoyance”. During the construction:

• the Unit received little to no natural light due to windows being boarded up;
• banging, sawing, and foot noise on the roof every day;
• construction beginning every morning at 7 a.m. and continuing relentlessly;
• continued debris on the balcony preventing the tenant from accessing it at all;
• workers constantly looking into the windows that were not covered;
• temperatures in the Unit dropped below 18 degrees Celsius (in the winter) as the insulation on the roof was removed (which required the use of space heaters in the unit as a result); and
• the construction lasted more than three times the length originally contemplated.

The CC argued that section 73(2) of the Condominium Property Act places a duty on a CC to keep the property in a state of good repair, and therefore the inevitable nuisance from the necessary construction was protected. The Defendants further argued that a clause of the Corporation’s Bylaws precluded the action. The clause stated: “Neither the Corporation nor its Board Members, shall be responsible to any Owner, Tenant or occupier of a Unit, for any damage or loss whatsoever caused by or to the person or property of any Owner, Tenant or occupier of a Unit.”

The Court dismissed both arguments. Firstly, the court stated that the Bylaw language did not apply when the claim was advanced in “nuisance”. Secondly, although witnesses for the CC (from the construction company) did testify that there were several reasons for the delays (problems with obtaining the necessary roof anchors and doing the preparation work at the beginning of the construction; working through the winter months where the environment delays the progress; not having access to the roof prior to construction beginning; and 15 change orders) and testified that there was no work done that was unnecessary or inappropriate, the Court found that there was not enough evidence to show that the construction could not have proceeded in a different, more reasonable, less obtrusive manner. As a result, the fact that the roof repair was required under the CPA did not protect the CC from the unreasonableness of how the repairs were conducted.

The Court ultimately found the CC liable to the Owner for nuisance, and awarded the Owner a sum of $25,250 (the claim against the PM was dismissed, as they did not own or use the land from which the nuisance emanated and were therefore not liable for a nuisance claim).

This case is an important reminder that the CC has an obligation to commence repairs in a timely basis (where such repairs are required by the Bylaws or the CPA), that these repairs must be conducted reasonably and that the obligation to ensure both timely and reasonable repairs rests with the CC.

By: Kate Kozowyk, SVR Lawyers