Condo Law Digest – September 2016

Frank W. Benson, The Open Window, 1917.jpg
Pylon Paving (1996) Inc. v Arrow Lofts Inc. et al, 2016 ONSC 4660
Decision Date: July 21, 2016

In Fall 2011 Pylon Paving did some paving for the Arrow Lofts parking structure, a condominium development in Kitchener. Pylon wasn’t paid for the work, and so they started a lien action for the unpaid balance (around $20,000). Arrow responded with  counterclaim for $175,000 on the grounds of breach of contract and breach of express warranty. Arrow charges that Pylon’s work was defective and must be removed and replaced.

Experts for both sides agreed that the asphalt in the parking structure has deteriorated. Pylon’s expert (whose opinion was preferred by Justice Flynn) argued that the deterioration stems from an original flawed design, and that Pylon did their best with the unpaved project they were given. Pylon was supposed to install 50 mm of asphalt; however the design permitted them to install only 42 mm. While Pylon should have alerted Arrow in writing to this issue, the fact that they failed to install 50 mm of asphalt does not amount to a breach of contract.

Justice Flynn dismissed Arrow’s counter-claim but found that Pylon was not entitled to the full amount of their claim. He reduced the amount owed by Arrow to Pylon by $10,000 because of their failure to address the paving deficiencies in writing once they became aware of them.

Comment: Justice Flynn stressed the importance of prompt resolution and of putting things in writing: “Too often in these construction disputes an ounce of writing could prevent a pound of trouble.  That simple exchange in writing may have produced a shouting match ending with “I told you so”, but it most likely would have avoided a three day trial.”

TST-72521-16 (Re), 2016 CanLII 52980 (ON LTB)
Decision Date: July 25, 2016

This is a judgment from the Landlord-Tenant tribunal. The rental unit is in a condominium building that required work on its pipes from Feb 25 to March 5, 2016. During some of this time the water was turned off from 9 am to 5 pm. While their water was off, the Tenants were rehoused in the condominium’s guest suite, which did not have a working kitchen. The Tenants alleged “substantial interference of their reasonable enjoyment” of the rental unit and asked for an abatement of rent. The Chairman found that the Landlord took “all reasonable steps” to minimize impact on the Tenants. Nonetheless he agreed that the Tenants were entitled to an abatement of rent (25% for 10 days, amounting to about $144), and also to $380 to cover meal expenses during the work.

Nicholas v Toronto-Dominion Bank and Carleton Condominium Corporation No. 336, 2016 ONSC 3824
Decision Date: August 12, 2016

This sad story begins in 2011 when CCC No. 336 decided to replace the exterior windows of all condominium units. Mr. Nicholas disagreed with the Board’s choice of window, refused entry to his unit to change the windows, and stopped paying his monthly common expense fees. CCC 336 obtained court-ordered access and changed the windows at added cost. A September 2011 court order determined that Mr. Nicholas owed over $17,000 in common expenses (including the Corporation’s legal costs and the added cost of window replacement.) When Mr. Nicholas refused to pay, the Corporation registered a lien of about $20,000 against his unit. In March 2012 the Corporation’s lawyers issued a Notice of Sale under the lien. In the spring of 2013 the TD Bank (holder of Mr. Nicholas’s mortgage) paid about $30,000 (cost of lien, legal fees, ongoing monthly common expenses and compounding interest) to CCC 336. The Bank issued a statement of claim against Mr. Nicholas for possession of his unit and about $74,000 for indebtedness, (roughly $44,000 of principal owed on the mortgage, the $30,000 paid to CCC 336, interest and some incidentals). TD Bank obtained default judgment in October 2013 and Mr. Nicholas was evicted in January 2014. The unit sold for $205,000 in June 2014 and TD paid into court the net proceeds of over $99,000 which were paid to Mr. Nicholas in January 2015.

In this action, Mr. Nicholas seeks damages for financial loss due to his unlawful eviction and the sale of his unit, damages for his costs of accommodation, moving, etc., and damages for the negative financial impact on his credit rating. Justice Kane dismissed most of these claims by summary judgment, and scheduled a 2-day trial for some remaining issues between TD and Mr. Nicholas.

Comment: Just about the worst thing an owner can do during a dispute with a Condominium Corporation, is to stop paying common expense fees. The legal fees and interest simply balloon. Better to pay the fees “under protest” and seek legal advice.

About the image: By Frank W. Benson, 1917 –, Public Domain,

Posted in Condo Disputes.

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