Legal

September 10, 2025 Published by Toronto and Area Chapter - By Megan Mackey, Jessica Hoffman

Not What the Doctor Ordered – When Boards Fail in Their Duty

From the Summer 2025 issue of CCI Toronto Condovoice Magazine.

Lessons from Frankel v YRCC 664

When a unit owner reports a problem, whether it be in the unit or about the conduct of others, the condominium corporation has a duty to investigate and take steps to remediate the problem or deal with bad behaviour. This is especially true when owners report disturbances in their units. When a condominium board and/or management fails in this duty, the board may find itself facing claims of unfair treatment or oppression.

When faced with a lawsuit alleging that they failed to act appropriately, condominium corporations often claim they “took all reasonable steps” to address the unit owner’s concerns. Frankel v York Region Condominium Corporation No. 664 serves as a cautionary tale that simply “taking steps” is not enough. Condominiums have a duty to address problems in a meaningful way. Courts will not permit condominiums to “phone it in” when investigating issues. In addition, it is unlikely a condominium will be found to have acted reasonably if its conduct contradicts expert recommendations.

In this case, Joshua Frankel, an 80-yearold unit owner, suffered from sleep deprivation due to a persistent low-frequency noise emanating from the building’s mechanical equipment. Frankel’s unit is on the top floor, below the mechanical room. He was the only owner to report being disturbed by the noise. Frankel complained for years. His condominium corporation claimed it had addressed the problem. At one stage, Frankel and the Condominium jointly retained professional acoustical engineers to prepare a report on the matter. The report concluded that the low-frequency noise was a “perceived annoyance and must be attenuated”. Based on some of the findings in the report, the parties entered into a settlement agreement whereby the Condominium would install new pumps at a cost of $87,290, and Frankel would contribute $32,500 towards the pumps.

The Condominium reported that it replaced the pumps and demanded payment of $32,500 from Frankel. Frankel refused to pay because he did not experience any improvement. The Condominium sued Frankel in Small Claims Court to recover $32,500. Frankel then discovered that the Condominium had installed less expensive pumps that cost just $55,170. Consequently, Frankel brought a Superior Court application seeking relief from oppression. In court, the Condominium claimed it had resolved the problems and that Frankel complained because he was overly sensitive to noise. The judge was asked to decide whether to protect the unit owner or allow the Condominium board to decide it had done enough. Justice Akazaki concluded that the noise was harmful to Frankel, and the Condominium’s failure to resolve the issue breached his reasonable expectations as a unit owner. Even though the Condominium had taken some steps to address Frankel’s concerns, it unfairly disregarded his interests by installing pumps that were over $30,000 cheaper than those agreed upon in the settlement agreement. Furthermore, the Condominium acted oppressively in suing Frankel for failing to perform his side of the settlement agreement in the face of its own breach of the agreement.

The fact that Frankel did not complain about the pumps for two years after moving in was held to be irrelevant. According to the judge, “the pumps did not bother him until they did”. Equipment is expected to deteriorate as it ages.

Justice Akazaki stressed the importance of fashioning a remedy that would sustain the relationship between the parties. This is a unique feature of condominium law in that, unlike other court proceedings, this is not the last time the parties will deal with each other. Both parties will continue to be part of the same condominium community and maintain a relationship. Ultimately, the Condominium was ordered to find an effective solution to alleviate the harm to Frankel. The court allowed the Condominium to determine what the solution would be.

While this case only dealt with the Condominium’s failure to act properly in dealing with a noise complaint, the same principles apply if the board does not deal with behavioural problems that impact others. In this case, not only was the Condominium ordered to take steps to eliminate the low-frequency hum, but it was also ordered to pay Frankel $32,500 plus an additional $30,000 in compensation for legal costs. This case is a sobering reminder that condominium corporations must take unit owners’ concerns seriously and act in good faith to resolve issues effectively. Cutting corners or disregarding expert advice and settlement agreements may lead to legal disputes and undermine trust within the condominium community.

Megan Mackey Partner Shibley Righton LLP
Jessica Hoffman Associate Lawyer Shibley Righton LLP