Condo Law Digest – August 2019

Brasseur v. York Condominium Corporation No. 50, 2019 ONSC 4043 (CanLII)
Decision Date: July 4, 2019

Ms. Brasseur has owned a unit in YCC No. 50 since 1978. In 2009, after the exterior windows of the condominium were replaced, Ms. Brasseur noticed condensation problems which led to mould. Ms. Brasseur alleges that the corporation has breached its duty to maintain and repair the common elements, and that its actions were oppressive. YCC No. 50 claims that Ms Brasseur has breached her duty to keep her unit in good repair and that her “lifestyle” was the cause of the mould.

Justice Nakatsuru reviewed six years of back-and-forth between Ms. Brasseur and the corporation, including the evidence of a number of expert witnesses. He also considered and ultimately accepted a motion to admit fresh evidence. He ultimately decided that YCC No. 50 breached the Condominium Act because their response to the mould was not timely enough nor truly responsive enough. However their conduct did not amount to oppression because they did not delay deliberately. Justice Nakatsuru did not find that Ms. Brasseur’s lifestyle choices enhanced the risk of mould. In particular, her failure to follow a recommendation that she keep her windows open during the winter was not unreasonable.

Comment: Justice Nakatsuru noted that mistrust and antagonism between Ms. Brasseur’s son (who lived with her in the unit and communicated on her behalf) and the condo board president made resolution of the mould problem more difficult and expensive. Conflict costs!

Brief Notices

A follow-up to Ottawa-Carleton Standard Condominium Corporation No. 671 v. Friend (from the November 2013 Digest): The corporation sought and received a declaration that Mr. Friend’s conduct constitutes workplace harassment and a breach of the Condominium Act (for harassing, intimidating and physically assaulting the Directors and other residents.) Justice Kane ordered costs against him of over $14,000. You can read the full judgement at this link:

Justice Nakatsuru has denied a motion to have Stuart Weinstein declared a vexatious litigant saying that, “Resort to this rule is not meant to be an easily accessible alternative to a pleadings motion or a motion for summary judgment.” Mr. Weinstein had sued a number of government entities, Humber College, the YMCA, and the Condominium Regulatory Authority of Ontario in a dispute over a condo manager course that he took. I posted a summary in the May 2019 edition of the Condo Law Digest.

A publication ban will remain in force in B.K. v YRSCC no. […], 2019 ONSC 3837. This is a dispute concerning a condominium with building deficiencies and flooding, a Board of Directors substantially reduced by resignations, attempts to replace the Board, and physical threats against the property manager and the former board president.

About the image: “Window” by Loren Kerns.