Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211222 DOCKET: C69608

Lauwers, Paciocco and Thorburn JJ.A.

BETWEEN

York Region Standard Condominium Corporation No. 972 Applicant (Respondent)

and

Peter Tak Ming Lee and Mun Chung Leung Respondents (Appellants)

Counsel: Peter Tak Ming Lee and Mun Chung Leung, acting in person Tony Bui, for the respondent

Heard: December 8, 2021

On appeal from the judgment of Justice Carole J. Brown of the Superior Court of Justice, dated May 28, 2021, with reasons reported at 2021 ONSC 3877.

Reasons for Decision

[1] The appellants are the owners and residents of a condominium unit in Richmond Hill. They appeal a compliance order made against them under ss. 117 and 134 of the Condominium Act, 1998, S.O. 1998, c. 19. The order directed the appellants to permit the respondent, York Region Standard Condominium Corporation No. 972, or its agents to enter and inspect their unit and, if necessary, undertake maintenance or repairs under s. 93(3) of the Act and Article VII of the Corporation’s Declaration in relation to the removal of Kitec plumbing. In addition, the court ordered the Corporation’s expenses to be added to the common expense payments due for the appellants’ unit and collected in the same manner as under s. 92(4) of the Act and Article VII of the Declaration. The court awarded costs on a full indemnity basis in the amount of $4,541.95, also to be added to the unit’s common expenses.

[2] The appellants have now completed the repairs to their unit to the satisfaction of the Town of Richmond Hill and the Corporation, which was permitted to inspect the unit sometime after the judgment under appeal was rendered. The appeal is not moot, however, because the appellants wish to argue on the merits in order to avoid the expense and cost consequences of the judgment below.

[3] The basic facts are not in dispute. A couple of instances of leaks in Kitec plumbing in the building alerted the Corporation to the fact that Kitec plumbing was present in the units in the building. That form of plumbing had been recalled as faulty by its manufacturer in 2005. To prevent any future plumbing failures, on August 27, 2018, the Corporation issued a notice requiring unit owners to remove Kitec plumbing from their units.

[4] The Corporation’s notice to unit owners gave them two options. The first was to use the contractors recommended by the Corporation to undertake the work at a set fee to be paid by the unit owner. The second option was to use a qualified contractor of their choosing and pay directly, but an owner taking this option would still be obliged to pay $750 plus HST to the Corporation so that its engineer could inspect and certify that the work was done. The deadline for choosing the option was extended once. The appellants elected the second option but neglected to send a cheque to cover the inspection fee.

[5] The appellants took out a building permit from the Town of Richmond Hill in December 2018, but because of Mr. Lee’s ill health, were unable to proceed. On November 25, 2019, Mr. Lee advised the Corporation that the Kitec plumbing had been removed but refused access for inspection purposes. The Corporation later learned that the Town of Richmond Hill had not closed the permit, indicating that there had been no engineer’s inspection.

[6] In January 2020, the appellants again refused access to the Corporation’s agents. In July 2020, the Corporation brought the compliance application that resulted in the judgment now under appeal. The decision was released on May 28, 2021.

[7] In an effort to close the building permit with the Town of Richmond Hill, the appellants engaged their own consultant to inspect the unit on June 14, 2021. The Town of Richmond Hill signed off on the building permit indicating that the repairs had been completed properly on June 22, 2021. Later, the appellants allowed the Corporation’s agents access to inspect. The purpose of the compliance order has therefore been met.

[8] Against that factual background, the appellants make several arguments. First, they argue that Kitec plumbing did not pose a significant risk to the building. We do not accept this argument. As noted above, there was evidence before the application judge that on two occasions leaky plumbing had been discovered in the building and that Kitec plumbing had been recalled because it was prone to leak. Not surprisingly, on two occasions Kitec plumbing has been recognised as a dangerous condition by the Superior Court: Hawkins v. TSCC 1696, 2019 ONSC 2560, at para. 39; TSCC 1724 v. Evdassin, 2020 ONSC 1520, 18 R.P.R. (6th) 136, at para. 7.

[9] Second, the appellants dispute the truth of the affidavit of the Corporation’s employee, in which she deposed that “the Corporation experienced two significant water damage incidents as a result of faulty Kitec plumbing.” Mr. Lee asserts, without evidence, that the failures were not significant, but were only “pinhole leaks”. He asks us to infer that the witness gave false evidence and that her affidavit should therefore be entirely rejected by the court. We do not accept this argument. In the context of a large, multi-unit residential building, pinhole leaks could well result in significant water damage. They certainly portend future more serious failures. The evidence substantiates, as the application judge found, the need for the Corporation to take the steps that it did in light of the Corporation’s responsibility for the building.

[10] Third, the appellants argue that the Corporation could not use s. 117 of the Act to require owners to remediate their units because that section is aimed at bad conduct on the part of unit owners. Section 117 provides:

No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.

We do not accept this argument. This section is aimed at curbing harmful activities, as the appellants argue, but the language also covers “a condition”. We agree with the respondent that a condition of faulty plumbing in danger of failure is “likely to damage the property” and amply justifies a remedial order.

[11] Next, we note that the application judge stated in her reasons that the appellants “have not provided responding materials.” The triage order made by Diamond J. required the appellants to file their responding record by March 17, 2021, which would have permitted time for the service of reply evidence by the Corporation. The appellants provided counsel for the Corporation with an unsworn, undated affidavit from Mr. Lee and “Statement of Defense” on April 29, 2021, more than a month late. The appellants filed their material with the court on May 7, 2021, the last business day before the application was scheduled to be heard in writing.

[12] There is no explanation as to why the materials served and filed by the appellants did not appear to reach the application judge. We have reviewed the material that they filed. The substance of the appellants’ submissions has been discussed above. In our view, even assuming that Mr. Lee’s affidavit was admissible despite being unsworn, it added no new information that would have changed the outcome.

[13] As to the matter of legal costs, under s. 134(3)(b) of the Act, the court may order an owner to pay the damages incurred by the applicant as a result of non-compliance and the costs incurred by the applicant in obtaining the order. An award of damages or costs, along with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses of the unit under s. 134(5).

[14] The application judge followed a long line of precedent in ordering costs against the appellants on a full indemnity basis “because the balance of the unit owners are blameless and should not have to bear the legal costs of securing the compliance of one of the unit owners”. In applying this law, she noted:

Due to the recalcitrance of the [appellants], the matter could not be settled without the intervention of the court. When the [appellants] continued to fail to comply, they were warned that the Corporation would seek full enforcement costs if they continued to fail to comply with the Act, Declaration and Rules of the Corporation.

[15] We see no error in her approach to costs.

[16] We dismiss the appeal on the merits, with costs, and while we grant leave to appeal costs, we also dismiss the costs appeal.

[17] In this court, the Corporation seeks costs of about $9,000. It is unusual for this court to award costs for an appeal that exceed the costs of the proceeding leading to the judgment under appeal. We see no reason to exceed the application judge’s award of costs, and therefore fix costs before this court in the amount of $4,500, all-inclusive, and order that this amount be added to the common expenses attributable to the owners’ unit.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“J.A. Thorburn J.A.”