Sarah McCarthy

Costs decision following mirror-image applications concerning a dispute over the use and maintenance of a commercial condominium unit.

The court found divided success, as the applicant prevailed on the principal issue regarding a waterproofing membrane, but the respondent prevailed on several subsidiary issues.

The court also considered the applicant's refusal to participate in mediation.

The court ordered each party to bear its own costs and declined to relieve the applicant of its obligation to contribute to the respondent's legal fees through its share of common element expenses, noting this would breach s. 84 of the Condominium Act.

Cross-applications regarding the responsibility for repairing a waterproofing membrane in a commercial parking garage unit of a condominium.

The unit owner, Landont, argued the membrane was part of the common element concrete slab.

The condominium corporation, FCC 11, argued it was part of the unit and that Landont caused the damage by failing to maintain the unit.

The court held that the membrane was integrated into the concrete slab and thus formed part of the common elements, making FCC 11 responsible for its repair.

However, the court upheld FCC 11's decision to power wash the unit and charge the cost to Landont, as Landont had a duty to maintain the unit to mitigate wear and tear.