ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 5007/10

DATE: 2013/03/04

B E T W E E N:

DOUGLAS FREDERICK HARVEY

Self-represented

Plaintiff

• and -

ELGIN CONDOMINIUM CORPORATION NO. 3

Robert W. Dowhan and Michelle Kelly, for the Defendant

Defendant

HEARD: February 25, 26 and 27, 2013

LEACH J.

[1] The plaintiff Mr Harvey owns and lives in a unit of the defendant condominium corporation, (“ECC”), located in Port Stanley.

[2] This judgment follows a three day trial, during which Mr Harvey advanced numerous complaints against the ECC.

[3] Those complaints are detailed at length in his statement of claim.

[4] Generally, however, they focus on the allegedly oppressive manner in which the ECC is said to have embarked on work which Mr Harvey characterizes as “substantial change” without requisite unit owner voting approval. In particular, he challenges ongoing work done on the garage roof decks of ECC units, funded by corresponding “special assessments” levied against unit owners.

[5] Mr Harvey wants that work stopped, and the corresponding levies reversed.

[6] He seeks punitive damages, as well as damages for harm allegedly done to his credit rating when the ECC enforced its special assessment levies against him by way of lien.

[7] He also requests general orders compelling ECC director compliance with the requirements of the Condominium Act, 1998, S.O. 1998, c.19, and requiring all ECC directors to take certain specified training in relation to that legislation.

[8] For the reasons that follow, I find that there is no adequate basis for his complaints, and that his action must be dismissed accordingly.

Evidence and Facts

[9] At trial, Mr Harvey and his spouse, Francie Dennison, (who lives with Mr Harvey in the same ECC unit), gave evidence on behalf of the plaintiff.

[10] The defendant called evidence from Douglas Simpson, (a former ECC property manager), and from James Todd, (another ECC unit owner and current president of the ECC board of directors).

[11] The parties also filed a good deal of documentary evidence, most of it on consent. (I made a voir dire ruling excluding, on various grounds, some of the documentation Mr Harvey wanted to tender in evidence. This included documentation which had not previously been disclosed through the mandated discovery process, much of which also was either not relevant to the pleaded issues, or impermissible hearsay, the reception of which was not justified by any demonstrable necessity or circumstantial guarantee of trustworthiness.)

[12] Although the parties clearly dispute certain facts and, more importantly, the proper characterization in law of certain matters, many of the events leading to the present impasse are not really in dispute.

[13] The 51 residential units underlying the ECC were built approximately 23 years ago, and the corporation’s declaration and description, (filed in evidence), were registered pursuant to the Condominium Act, 1998, supra, on December 31, 1990. Like many condominium corporations, its board of directors consists of numerous unit owners who consent to election or interim appointment, pursuant to the corporation’s by-laws.

[14] The ECC units are arranged in “town house” form, with each deliberately designed to have a uniform aesthetic appearance consistent with that of the entire complex. Each has a garage located on the ground floor, (at the front of each unit), above which is a roof deck accessed from “patio” style doorways opening to the exterior from the second floor.

[15] As originally constructed, the garage roof areas generally were covered by galvanized metal pans, (to prevent water entry), above which were placed diagonally-cut leveling crossbeams (“sleepers”) made of wood, onto which wooden decks comprised of floor boards or planks were fastened. The resulting deck areas were surrounded by wooden railings. Generally, the wood was pressure-treated lumber.

[16] Mr Harvey purchased and moved into his unit, (no.12), in 2001.

[17] By 2005, the ECC board of directors was confronted with numerous apparent building construction deficiencies that had emerged over time.

[18] In particular, prompted by complaints of water leaking into at least 3-4 different units, in or near the units’ garage roof decks, the board took steps to investigate with the assistance of professional contractors (Crocker Construction Inc.) and engineers (VDP Engineering). The investigations included completion of a “pilot project”, whereby these professionals deconstructed and examined the garage roof deck on one of the affected units. It so happened that the unit chosen, (no.14), belonged to Nikki Booker, a member of the board and one of Mr Harvey’s immediate neighbours.

[19] The pilot project revealed extensive construction design and implementation flaws that seemed likely to have been replicated throughout the complex, and which already were resulting in obvious problems destined to become worse over time. These included the following:

a. The roof was sloped in the wrong direction. Instead of an incline directing precipitation away from the units, the slope directed water back towards the buildings where it would accumulate and “pond”, and in turn promote saturation of building material as well as corrosion and ultimate failure of the galvanized metal pans.

b. The underlying sleeper beams had been nailed to the roofing through the metal pans, resulting in multiple punctures and water penetration points, thereby enabling water leaks and accelerating metal pan corrosion.

c. The floorboards and underlying sleeper beams of the wood deck were facilitating excessive accumulation of debris on the entire surface area beneath the decks, which in turn was causing further inhibition of drainage.

d. Flashing coverage in the area of the decks was insufficient, and caulking inadequate, to direct water away from exposed walls and wooden deck areas, with further resulting saturation of building material.

e. In the result, continuous saturation of the decks had resulted in obvious leaks into interior areas, (confirmed by water stains on interior floor joists and insulation), as well as mould formation. It also was promoting obvious and widespread wood rot and deterioration, threatening not only the exterior deck material but also structurally important support beams located immediately below the upper storey patio doors leading to the roof decks. The surface of the existing wooden decks, (already too high in relation to the elevation of the patio door base sills), also had dropped noticeably in certain areas.

[20] The professionals retained by ECC advised that remedial action was necessary, and recommended two alternative options to address and correct the deficiencies and resulting leakage problems.

[21] Both remedial options contemplated removal of all existing deck and roofing material, repair of all damaged substrate, and correction of the slope with new sheathing. After that was done, the deck then would be finished by either:

a) construction of new wooden decks and railings; or

b) vinyl decks applied directly to the rubber membrane, coupled with aluminum railings.

[22] Although aesthetically different, both options would result in upper garage roof decks and railings of the same dimensions, in the same location, and with the same configuration.

[23] To the extent there was any minor variation in resulting elevation or in thickness of deck or railings, this stemmed entirely from the selection of building materials to be used.

[24] Of the two remedial options presented, the professionals retained by ECC recommended the one involving vinyl and aluminum as the preferred option, as it offered a number of comparative advantages.

[25] In particular, new and properly designed/installed wooden decks would cost more, deteriorate rapidly in appearance, have an elevation well above the patio door sills, present the same debris accumulation and drainage inhibition problems, and make it impossible to service and maintain the underlying membrane.

[26] In contrast, the vinyl deck and aluminum railings were more cost effective, easily serviced and maintained, avoided elevation and drainage problems, and employed material that was either guaranteed or of commercial grade, (thereby lasting longer while facilitating periodic membrane replacement pursuant to the applicable guarantees). These advantages were offset slightly by the need for increased care not to puncture the vinyl coating and underlying membrane; e.g., through movement of sharp-edged snow shovels or furniture, or by improper satellite dish installation.

[27] Presented with these findings and recommendations, the ECC board determined that remedial action definitely was required, and made a decision to proceed accordingly.

[28] The board nevertheless also decided to inform unit owners of the reasons for the decision, as a prelude to then soliciting owner input as to the preferred option. To that end, the engineering firm and contractor were asked to present their findings and recommendations at the ECC’s annual general meeting (“AGM”) in May of 2005. They did so, using various photographs to illustrate the problems that had been detected.

[29] Like other unit owners, Mr Harvey attended that AGM in May of 2005. He says it was then that he learned, for the first time, of the supposed leakage problems and the board’s decision to take corrective measures. He voiced his disagreement.

[30] For various reasons, Mr Harvey was very skeptical about the indicated construction deficiencies and water leakage problems, and strongly disagreed with the need for remedial action on the scale being suggested. In particular:

a. As a retired journeyman electrician, familiar with various building projects in the construction industry, he feels he has “a pretty good sense or feel for what’s worthwhile or not”.

b. The garage in Mr Harvey’s unit had leaked in 2001, but he determined that the leak was coming from an exterior power outlet, and that the problem was easily and inexpensively addressed by caulking. No further leak problems had been experienced in relation to his unit, despite numerous activities on the roof deck involving water, (such as plant potting).

c. Mr Harvey thought the mould depicted in the photographs was not extensive, and that the depicted water stains near windows likely were the result of poor caulking rather than anything to do with the deck.

d. Mr Harvey and Ms Dennison had observed Ms Booker making earlier changes to the garage roof deck at Unit 14. They felt that work, (along with Ms Booker’s perceived lack of maintenance, allowing for debris accumulation), were more likely causes of the supposed problems detected by the pilot project, rather than any original construction deficiencies. They also suspected that Ms Booker was promoting remedial work simply to lower the elevation of her deck to the level of her patio door sill.

e. Mr Harvey generally was dubious of the professionals retained by ECC to make the presentation. He emphasized that the engineer had not applied his professional stamp to the pilot project report, and felt the contractor simply was “pushing hard” to “sell us stuff”.

[31] Mr Harvey’s skepticism may have been sincere, but I find that it was not well founded.

[32] It certainly was belied by subsequent developments and findings, all of which reinforced the concerns outlined by the already compelling results of the pilot project investigation.

[33] In that regard, Mr Simpson and Mr Todd gave effectively unchallenged evidence that the number of units with similar leakage and visible damage began to escalate significantly after 2005, to the point where almost every unit in the complex was confirmed by owner complaints and/or unit inspections to have similar problems, with increasing signs of visible and progressive damage. Such damage included obvious and widespread staining and water leakage, mould, extensive rotting of wood, (including support beams), sagging and “spongy” interior bedroom floors, and dry wall falling from interior garage ceilings.

[34] In my opinion, all of this gave rise to the board’s legitimate perception of health and safety concerns, indicated a real and substantial threat of further imminent harm to property and/or persons if left unchecked, and justified the board’s decision to take corrective action.

[35] In the face of professional investigations, findings and advice, and such evidence of widespread problems and damage common to so many units, it is simply unreasonable to persist, (as Mr Harvey does), with suggestions that the concerns identified by the pilot project were somehow isolated, idiosyncratic or manufactured in pursuit of ulterior motives, or that the concerns did not warrant serious attention and widespread corrective action.

[36] In particular, I reject Mr Harvey’s suggestion, (expressed repeatedly during comments and complaints conveyed to the ECC over the course of the parties’ dispute, and again at trial), that work on the garage roof decks was required only in relation to a small minority of isolated units, but was then unnecessarily extended to all units “whether or not they needed it, in order to keep them all looking the same”, “for the benefit of a few at the expense of all”.

[37] The circumstances clearly required corrective measures, and the ECC board acted in a timely way to address the situation, and bring it to the attention of unit owners.

[38] As noted above, the ECC board had decided to take corrective action before informing unit owners of the decision during the AGM in May of 2005.

[39] However, it also had decided to receive further input from unit owners, (after allowing for a period of consideration and reflection), as to the preferred method of addressing the problems. To that end, a further general meeting of unit owners was arranged for July of 2005.

[40] That next meeting originally was planned for July 12, 2005, and the relevant notice to owners indicated and confirmed that the sole purpose of the meeting was “to discuss and vote on the style of deck that will replace the existing ones above the garages when we move forward with this project”. [Emphasis added.] The notice also mentioned that the contemplated work “could result in a significant change in the exterior appearance of the units”.

[41] When the meeting subsequently had to be rescheduled for July 27, 2005, the additional notice confirmed that the sole substantive item on the agenda would be “presentation and style of deck replacement for upper front decks above garages”. [Emphasis added.]

[42] To me, these notices provide clear confirmation that the board already had determined to proceed with remedial action to replace the existing decks, (i.e., that the board did not believe it required formal unit owner consent or approval to proceed with the contemplated work), and that the focus of the further meeting in July of 2005 was limited to receiving unit owner input as to the preferred method of doing so, having particular regard to the aesthetic differences between the two options.

[43] In particular, I reject Mr Harvey’s suggestion that the notices represent an acknowledgment by the ECC board that it needed unit owner approval before embarking on the contemplated work. I also reject his suggestion that the reference to a possible “significant change” in exterior appearance was an acknowledgement by the ECC board that the contemplated work would represent a “substantial change” to the common elements of the corporation, within the meaning of the Condominium Act, 1998, supra.

[44] At the further general meeting held on July 27, 2005, votes on the two recommended remedial options were cast by 24 of the 51 unit owners. Mr Harvey voted in favour of the option involving new wooden decks. However, a clear majority, (20 to 4), voted in favour of the option involving use of a vinyl coating applied directly to the protective rubber membrane, along with the installation of aluminum railings.

[45] The ECC board then decided to proceed accordingly, using the method of remedial work apparently preferred by most of the unit owners.

[46] Between July of 2005 and May of 2009, the ECC and its board of directors continued to discuss and deal with the garage roof deck issue. Developments in that regard, during this period, included the following:

a. The matter apparently was raised at each and every AGM and at each and every meeting of the ECC board of directors, (which seem to have occurred on a near monthly basis).

b. The ECC board moved forward with steps to solicit and accept tenders for the required work, and proceed with its execution. Initially, (in 2006), the board contemplated completion of the work at the rate of two unit decks per year, with additional measures taken to ensure that units were selected and prioritized pursuant to ongoing investigations and recommendations from the ECC’s professional advisors. (As emphasized by Mr Todd, the board acted in strict accordance with these priority recommendations in order to avoid any possibility or suggestion that board members giving their own units priority, in terms of the contemplated remedial work.) Work on successive units proceeded as contemplated. However, escalating complaints and inspection results made it clear that progress of the remedial work needed to be accelerated, and in 2008 the board formally decided to revise its plans accordingly, (such that remedial work to all units would be completed in or about 2013).

c. Although the ECC initially contemplated funding of the remedial deck work through its normal “Reserve Fund” arrangements, (using accumulated portions of annual condominium fees set aside for that purpose), and also pursued litigation against the municipality for off-setting compensation, (on the basis the municipality had failed in its duties to ensure proper inspection and compliance during construction of the units), it became clear that this would not be sufficient to fund all of the remedial work required – especially if that work necessarily was accelerated. (Settlement of the litigation eventually generated only $70,000.00 in net proceeds, and this was to be directed not only to work on the garage roof decks work but also remediation of building deficiencies discovered in relation to attic firewall separation.) Nor was the ECC’s bank prepared to lend the corporation funds to carry out the work. With reluctance, the ECC board therefore decided in 2009 that the necessary work would have to be funded by special assessments levied against the unit owners. The total of such special assessments would be approximately $10,000.00 per unit owner, (which was equivalent to the per unit cost of completing the necessary work).

d. Having regard to the recessionary economic climate, and recognizing that not all unit owners would have the same ability to finance payment of the special assessments, the ECC board provided unit owners with various methods of paying the assessments by installment. These options were modified over time. (For example, they initially contemplated “front loaded” annual payments, with larger initial installments that would decrease in quantum over time. The “loading” then was reversed to allow for smaller initial payments, effectively allowing unit owners more time to come up with the payments required.) However, by way of formal notices commencing in 2009, it was made clear to unit owners that they would be responsible, over time, for payment of all the special assessments required to fund the remedial work.

e. Communications concerning the remedial work, and notices of related meetings, were disseminated equally to all unit owners, including Mr Harvey.

[47] Between May of 2005 and May of 2009, Mr Harvey continued to be very unhappy about the decision to proceed with work on the garage roof decks, and the method chosen. However, throughout this period, his “belief in democracy” was such that he nevertheless bowed to the perceived will of the majority, and accepted that he “had lost”.

[48] In that regard, Mr Harvey repeatedly acknowledged having received all documentation circulated to all the unit owners, and that he had an equal opportunity to attend all relevant meetings, voice his views and ask questions, (although he feels no one was listening).

[49] He also acknowledged that he could have stood for election to the ECC board, or tried to marshal support from other unit owners to oppose the action being taken in relation to the garage roof deck repairs. He consciously thought about doing so, and discussed the possibility with Ms Dennison.

[50] He nevertheless decided that all such efforts would be useless, as opinion amongst the ECC board members and unit owners was “too lop-sided” against him, and there was no way to “stop it from happening” once the “machine was going”.

[51] Mr Harvey’s views in that regard and his approach to the situation changed dramatically in May of 2009. This followed a conversation he and Ms Dennison had with another unit owner and neighbour, (Mr Barendreght), about a recently received notice of special assessment from the ECC relating to the work being done on the garage roof decks.

[52] In the wake of that conversation between lay individuals, (in the sense that none were lawyers), Mr Harvey formed some very definite opinions and understandings concerning the proper interpretation of the Condominium Act, 1998, supra, and its application to the affairs of the ECC.[^1]

[53] In particular:

a) He now firmly believes that the work being done to the garage roof decks represents a “substantial addition, alteration, or improvement to the common elements” of the ECC, within the meaning of s.97(4) of the legislation, such that it should not have proceeded unless and until owners of more than two-thirds of the 51 units had voted in favour of approving the work, (which in turn means that the special assessments to fund such work never should have been levied).

b) He feels the same characterization and perceived failure to apply proper procedure can be said of other work authorized and pursued by the ECC directors; e.g., work done in relation to retaining walls, removal of a tennis court, and replacement of playground equipment.

c) Having regard to these and other concerns, (including allegations of delayed response to the attic fire separation deficiencies, delayed disclosure of details concerning the outcome of litigation against the municipality and use of resulting funds, and behavior Mr Harvey views as unresponsive, “appalling” and “cavalier”), he also firmly believes the circumstances warrant mandatory orders compelling the ECC directors to complete various forms of training in condominium law, and the appointment of an administrator to henceforth operate the ECC instead of its elected directors.

[54] Consistent with his new understanding of the Condominium Act, 1998, supra, Mr Harvey sent a letter, (dated May 14, 2009), to the Attorney General of Ontario, the Law Society of Upper Canada and the Ontario Ombudsman, outlining his concerns and requesting an investigation into the affairs of ECC and the conduct of its legal counsel.

[55] When that letter failed to generate a desired response, Mr Harvey followed up with a letter to the ECC, (sent November 23, 1999), reiterating his concerns and making it clear that he would not pay any of the “illegally” imposed special assessments outlined in notices circulated by the ECC board to unit owners.

[56] On December 8, 2009, the ECC responded by sending a lengthy letter to Mr Harvey, disputing his various allegations and the merits of his stated interpretation of the Condominium Act, 1998, supra.

[57] While respectful, the ECC letter to Mr Harvey also indicated its intention to take whatever formal steps might be required to ensure his payment of the special assessments, in order to ensure equal treatment of all unit owners. (Mr Harvey’s earlier correspondence already had indicated his awareness that failure to pay the special assessments might result in lien proceedings.) Although it had no obligation to do so, the ECC voluntarily extended the time for Mr Harvey’s payment of the special assessments required to date.

[58] When Mr Harvey failed to respond by January of 2010, the ECC served formal notice of its intention to file a lien against his unit, pursuant to s.85(4) of the Condominium Act, supra.

[59] When Mr Harvey persisted in his refusal to pay the required special assessments, the ECC filed the contemplated lien against his unit, and advised him accordingly, on January 29, 2010.

[60] By February 26, 2010, Mr Harvey still had not paid the required special assessments, and the ECC formally indicated its intention to enforce the lien through power of sale proceedings.

[61] On March 5, 2010, Mr Harvey responded by service of his statement of claim, commencing this action against the ECC. At the time, he understood, (incorrectly), that commencement of such a claim automatically would suspend any obligation he otherwise might have to make payments to the condominium corporation, or any further enforcement proceedings.

[62] In April of 2010, (primarily in response to concerns expressed by his banker that its mortgage on Mr Harvey’s unit was being compromised by the lien proceedings), Mr Harvey realized that he could not escape payment of the special assessments prior to resolution of the litigation.

[63] He accordingly now has paid all special assessments levied to date, albeit under protest, pending resolution of the litigation.

[64] In the meantime, remedial work on the garage roof decks has continued, and the ECC anticipates that it will be completed, in relation to all units, by the end of 2013. It believes this effectively will bring the related concerns to an end. (The unchallenged evidence of Mr Simpson and Mr Todd is that there have been no further reports or observations of leakage or damage in relation to any of the units where the remedial work has been completed.)

[65] While Mr Harvey’s unit is one of the remaining few in respect of which remedial work is still pending, he acknowledges that this likely stems from his express indication, (following a number of failed attempts by the ECC to schedule an inspection appointment), that his unit “doesn’t need to be fixed”, and they should “just leave it”.

[66] In cross-examination, however, Mr Harvey acknowledged that the same remedial work now soon will be done on his unit.

Analysis

[67] I agree with counsel for ECC that many of Mr Harvey’s formal complaints and claims effectively collapse at the outset as a result of his failure to lead any evidence capable of supporting them.

[68] In that regard, I begin with the numerous requests in Mr Harvey’s statement of claim for an “Oppression Remedy”; a label he applies to the various orders he seeks to terminate work on the garage roof decks, reverse the special assessments, direct reimbursement of funds paid to date, require ECC directors to take training, and appoint an Administrator to operate the ECC.[^2]

[69] Although not expressly cited by Mr Harvey in his pleading, it seems clear that he relies on section 135 of the Condominium Act, 1998, supra, which reads as follows:

Oppression remedy

135. (1) An owner, a corporation, a declarant or a mortgagee of a unit may make an application to the Superior Court of Justice for an order under this section.

Grounds for order

(2) On an application, if the court determines that the conduct of an owner, a corporation, a declarant or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant, it may make an order to rectify the matter.

Contents of order

(3) On an application, the judge may make any order the judge deems appropriate including,

(a) an order prohibiting the conduct referred to in the application; and

(b) an order requiring the payment of compensation.

[70] Apart from the possible implications of Mr Harvey’s allegation that the corporation has failed to comply with the requirements of s.97(4) of the legislation, requiring special majority approval required for “substantial change” to common elements, (an allegation to which I will return later in these reasons), I see nothing in the evidence before me to establish the prerequisite grounds for an oppression remedy required by s.135(2).

[71] Although Mr Harvey understandably has been guided by his lay reading of this provision, (e.g., feeling subjectively that the conduct of the ECC has been “oppressive”, “unfair” and “prejudicial”), the terms employed by s.135(2) have been assigned particular objective meanings in law which do not necessarily conform with such lay usage.

[72] These were summarized by Justice Harvison Young in Walia Properties Ltd. v. York Condominium Corporation No. 478, [2007] O.J. No. 3032 (S.C.J.), affirmed [2008] O.J. No. 2283 (C.A.), at paragraphs 22-23:

Section 135 allows a unit owner to apply to the court for relief from conduct that is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the applicant’s interests. The section came into effect in 2001. While this is a new concept for Ontario condominium corporations, Canadian courts have dealt with the oppression remedy for many years in the context of corporate law. Corporate law principles regarding oppression are, therefore, applicable in determining what constitutes conduct that is oppressive, unfairly prejudicial or unfairly disregards the applicant’s interests in the context of condominium law: see Niedermeier v. York Condominium Corp. No. 50 (2006), [2006] O.J. No. 2612 (S.C.J.).

In the corporate law context, oppressive conduct requires a finding of bad faith, while conduct that is unfairly prejudicial or that unfairly disregards the interests of the applicant does not: see Brant Investments v. Keeprite Inc., (1991), 3 O.R. (3d) 289 (C.A.) at 305-306. Oppressive conduct has been described as conduct that is burdensome, harsh and wrongful. Unfair prejudice has been held to mean a limitation on or injury to a complainant’s rights or interests that is unfair or inequitable. Unfair disregard means to unjustly ignore or treat the interests of the complainant as being of no importance.

[73] I see nothing to warrant a finding of bad faith on the part of the ECC. To the contrary, the well documented conduct and communications of the ECC seem extraordinarily open and candid. Moreover, the measures being implemented seem scrupulously designed to ensure that, to the fullest extent possible, (apart from considerations of timing, which in turn have been addressed and determined in an objective manner), each and every unit owner will incur exactly the same burden in exchange for exactly the same benefit.[^3]

[74] For similar reasons, there is no evidence of any “unfairly prejudicial” conduct.

[75] Finally, (as far as section 135 of the legislation is concerned), I see no basis for any finding that Mr Harvey’s views were “unfairly disregarded”.

[76] Leaving aside the possible implications of Mr Harvey’s arguments relating to s.97(4) of the Condominium Act, 1998, supra, his various claims for “Oppression Remedy” relief pursuant to section 135 of the legislation must be dismissed.

[77] For similar reasons, I reject Mr Harvey’s claim for punitive damages.

[78] In that regard, even if I assume (without deciding) that condominium unit owners may in certain circumstance establish an independent actionable wrong giving rise to claims for punitive damages, the circumstances before me would not merit an award of punitive damages.

[79] In particular, I see nothing in the evidence to justify a finding that the ECC’s conduct has been “harsh, vindictive, reprehensible and malicious”, or “extreme in its nature such that by any reasonable standard it is deserving of full condemnation and punishment”. See Honda Canada Inc. v. Keys, 2008 SCC 39.

[80] That leaves, for consideration and determination, Mr Harvey’s main argument: that the ECC has embarked on a program of “substantial change” to the common elements without following the mandated procedures for securing appropriate unit owner approval.

[81] Mr Harvey’s remaining claims all relate to that argument, and therefore stand and fall on its merits.

[82] In support of the argument, Mr Harvey relies on subsections 97(4), 97(5) and 97(6) of the Condominium Act, 1998, supra.

[83] Mr Harvey contends that the “new” garage roof decks should be viewed as a “substantial addition, alteration or improvement” to the common elements.

[84] In that regard, he relies in particular on the concept of substantial “alteration”.

[85] In support of his characterization of the new decks as a substantial alteration, Mr Harvey also points to the deeming provision of s.97(6).

[86] The provisions relied upon by Mr Harvey must nevertheless be read in their proper context.

[87] In particular, s.97(1) reads as follows:

97. (1) If the corporation has an obligation to repair the units or common elements after damage or to maintain them and the corporation carries out the obligation using materials that are as reasonably close in quality to the original as is appropriate in accordance with current construction standards, the work shall be deemed not to be an addition, alteration or improvement to the common elements.

[88] If the remedial work done by the ECC falls within the description set out in s.97(1), it cannot constitute an “addition, alteration or improvement”.

[89] Whether the remedial work undertaken by the ECC falls within s.97(1) requires examination of several questions.

[90] These include whether the decks are common elements, whether the corporation has a duty to repair or maintain them, and whether the work constitutes repair or maintenance using materials reasonably close in quality to the original.

[91] In my opinion, the answer to all these questions is “yes”.

[92] The decks are common elements, the corporation has statutory duties to repair and maintain them, and the remedial work constitutes repair or maintenance using materials reasonably close in quality to the original in accordance with current construction standards.

[93] Subsection 97(1) therefore applies and defeats Mr Harvey’s argument.

[94] Even if the work were characterized as an alteration, the evidence would bring it within s.97(2)(b) of the legislation, permitting such work if necessary for safety or to prevent imminent danger to property.

[95] Operation of subsection 97(2) inherently displaces application of s.97(4).

[96] In either case, the ECC board was entitled to embark on the remedial work without special owner approval.

[97] The board was also entitled to finance that work by special assessments.

[98] Mr Harvey accordingly has no claim for damages arising from lien enforcement proceedings.

[99] Nor has there been any demonstrated board non-compliance warranting compliance orders or appointment of an administrator.

[100] Mr Harvey’s action therefore must be dismissed in its entirety.

Costs

[101] Because my decision was reserved, the parties were unable to make submissions regarding costs. If the parties cannot agree:

a. The ECC may serve and file written cost submissions not exceeding five pages within two weeks.

b. Mr Harvey may respond within two weeks of service.

c. The ECC may reply within one week.

[102] If no written cost submissions are received within two weeks of release of this decision, there shall be no costs of the action.

“Justice I. F. Leach”
Justice I. F. Leach

Released: March 4, 2013

[^1]: Discussion regarding the plaintiff’s delay and the Limitations Act defence withdrawn by the defendant.
[^2]: Referring to relief sought in the statement of claim.
[^3]: Discussion regarding alleged benefit received by another unit owner who sold before assessments were imposed.