CITATION: MTCC No. 985 v. Cheney, 2015 ONSC 7124
COURT FILE NOS.: CV-14-507161 and CV-14-509996
DATE: 20151201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 985
Applicant
– and –
THOMAS CHENEY and SHARON MACKAY
Respondents
AND BETWEEN:
THOMAS CHENEY and SHARON MACKAY
Applicants
- and –
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 985
Respondent
Natalie Schernitzki, for Thomas Cheney and Sharon MacKay
Jonathan H. Fine and Dalia Yonadam, for Metropolitan Toronto Condominium Corporation No. 985
HEARD: 2 and 3 September 2015
REASONS FOR DECISION
MEW J.
[1] It all started on the evening of 24 June 2013 when Sharon MacKay and Tom Cheney (the “Owners”) became aware of a strong smell of cigar smoke in their Toronto condominium unit.
[2] It turned out that cigar smoke had migrated from the unit immediately above theirs, most likely through openings in the slab separating the two units.
[3] There has been a running series of disputes between the Owners and the condominium corporation (“MTCC”) ever since.
[4] In a decision arising from the trial of an issue between the parties, released on 12 May 2014 (2014 ONSC 2863), I found that MTCC was not, at that time, in breach of its obligations pursuant to ss. 89(1) and 90 of the Condominium Act (these provisions require MTCC to repair units and common elements after damage and to maintain the common elements). Nevertheless, I was of the view that MTCC had not acted with sufficient dispatch when presented with the Owners’ concerns and had “adopted an unfortunate attitude towards the Owners, who were quickly branded as complainers who had far too quickly [run] off to their own lawyers.” At para. 70 of my decision I observed:
The owners initially took reasonable steps to try and get the condominium corporation to pay attention to them. Even allowing for the fact that there were people on vacation at the time that the cigar smoke problem first arose, it was unacceptable that it took more than a month before FCS [a consultant] first attended. Having identified violations of the Fire Code and the need to act with dispatch, the response of the condominium corporation was, effectively, not [to] do anything of significance for nearly two months. Unfortunately, FCS and Namcan [another consultant] then incorrectly concluded that the problem had been solved when, in fact, it had not. That is not, of course, directly the fault of the condominium corporation. However, throughout this time, a negative attitude towards the owners continued and in my view coloured the condominium corporation’s decision making.
[5] MTCC, with the assistance of its consultants, had ultimately got to a point where, as a result of further investigation and testing, I concluded that “a solution does appear to be in sight”. I noted, however, that the parties still disagreed about whether further iterative testing needed to be undertaken and whether other modifications, which had been recommended by engineers retained by the Owners, needed to be made.
[6] My optimism turns out to have been misplaced.
[7] Following the 12 May 2014 decision, the consultants, retained by the Owners and MTCC respectively, conferred with each other. Despite doing so, consensus has still not been reached on what needs to be done to not only eliminate the immediate problems caused by the smoke migration but also, to prevent such problems from occurring in the future.
[8] As the dispute between the parties has rumbled on, MTCC has also raised concerns about certain modifications which the Owners are said to have improperly made to their unit, including the installation of humidifiers in the bathroom and laundry room of the Owners’ unit, allegedly in contravention of MTCC’s declaration and which is said by MTCC to have caused or contributed towards the smoke migration problems.
[9] It is noteworthy that the Owners no longer live in the unit. For a time, after they could no longer tolerate the odorous environment in their unit, they lived in a hotel. They have now acquired another residence. Their desire is to have the problems arising from, and associated with, the infiltration of smoke addressed once and for all so that they can sell their unit free of any concerns arising from their disputes with MTCC.
[10] These reasons address two applications, one brought by MTCC, the other by the Owners. By the time of the hearing of these applications, the issues in dispute and the relief sought consisted principally of the following.
By MTCC:
(a) an order for entry into the Owners’ unit pursuant to s. 19 of the Condominium Act and Article 14 of MTCC’s Declaration for the purposes of completing remediation to the Owners’ unit to remedy a complaint regarding the migration of cigar smoke;
(b) a declaration that the Owners have breached Article 10(f) of MTCC’s Declaration by installing, without the prior written consent of MTCC’s Board of Directors, a humidifier or humidifiers;
(c) an order requiring the Owners to remove any such humidifier and restraining the Owners from re-installing any such humidifier without obtaining the prior written consent of the Board of Directors as required by MTCC’s Declaration.
By the Owners:
(a) an order that any status certificate which MTCC may be required to send to a prospective order of the unit:
(i) Shall not make reference to the present applications or to the installation of any humidifier or any repairs done to the unit (except to the extent that MTCC has failed to satisfy any judgment rendered against it in connection with such applications); and
(ii) Shall make limited or no reference (depending on the circumstances) to an ongoing action for damages brought by the Owners against MTCC.
(b) a declaration that since the hearing held on 28 and 30 April 2014, MTCC has breached its duty to repair after damage in accordance with s. 89 of the Condominium Act.
(c) a declaration that since the hearing held on 28 and 30 April 2014, MTCC has breached its duty to maintain the common elements in accordance with s. 90 of the Condominium Act.
(d) an order that MTCC deliver a report to the Owners from a qualified engineer stating that the repairs and/or maintenance arising from the migration of cigar smoke have been completed in accordance with applicable building and fire codes such that, as of the date of such report, smoke will not migrate into their unit.
[11] This dispute between the parties has gone on far too long and has mushroomed out of all proportion to the issues involved.
[12] The parties argued these applications before me over two days. I was provided with two bankers’ boxes full of documentation, including case law. Each perspective has been comprehensively presented and argued. I have considered it all. That said, I have endeavoured to group what appear to me to be the main areas of contention and, accordingly, these reasons address those issues. To the extent there are elements of the arguments advanced or relief sought which have not been specifically addressed in these reasons, the parties can assume that I have declined to order that relief.
[13] In short, it is my intention that all issues raised in these applications have now been considered and, hence, these proceedings are, subject to compliance and appeal possibilities, concluded (for the avoidance of doubt, I did not have before me, and therefore make no order in the ongoing action between the parties bearing Court File No. CV-14-507813).
The Humidifiers
[14] MTCC’s experts believe that two humidifiers, installed by the Owners, have facilitated the migration of cigar smoke. Although the humidifiers are normal household CSA-approved appliances, which are plugged into a 110V outlet and entirely within the unit, for aesthetic purposes they were mounted within cabinets which in turn, were recessed into the drywall of the master bedroom and laundry room.
[15] Article 10(f) of the condominium corporation’s declaration provides as follows:
- (f) No Owner shall make any changes or alterations to his residential Unit, including the removal, installation, extension or other structural alteration of any toilet, bathtub, wash basin, sink, door leading to the exterior of the Unit, window, or heating, air-conditioning, plumbing or electrical installations contained in or forming part of his Unit, or any alteration which affects the Common Elements, without the prior written consent of the Board which may attach any reasonable condition to its consent or which may in its absolute discretion withhold its consent.
[16] The Owners say that installation of the humidifiers did not affect the common elements or constitute the kind of changes or alterations contemplated by Article 10(f). What was done was akin to any other appliance that plugs in and makes use of the water supply and drain as well as electrical supply - no different from a washing machine or a refrigerator with a drinking water dispenser. They argue that there is no connection to or through the underside of the concrete slab which is the uppermost legal boundary of their unit. There is no connection to or through any drywall which marks the vertical plane boundary of any unit vis-à-vis any neighboring unit, or through an external boundary vis-à-vis the common elements.
[17] MTCC requested the permanent removal of the humidifiers so that the wall cavities which housed these units could be dry-walled over, as well as because they were installed without the prior permission of MTCC’s board of directors contrary to Article 10(f) of the declaration.
[18] One of MTCC’s experts, Phillip Brearton, P.Eng, advised that:
… any hole in the drywall provides an easier path for air to move from one suite to another. Accordingly, closing such hole provides a further line of defence against air migration between the units.
[19] Specifically, it was Mr. Brearton’s opinion that the Owner’s unit “will be less susceptible to smoke migration from [the unit above] if the hole currently accommodating the master bedroom humidifier is fully and permanently closed”.
[20] After over a year of resisting MTCC’s request, the Owners have now agreed to remove the humidifiers. One of them has already been removed. MTCC stands ready to effect the necessary drywall repairs to close the openings left by the humidifiers.
[21] Notwithstanding this, MTCC wants declarations that the humidifiers were installed in violation of Article 10(f) of MTCC’s Declaration; that they should be removed; and, that they should not be re-installed without the board's consent. MTCC acknowledges that “[i]n light of the unit owners’ position regarding the removal of the humidifiers, other than for costs purposes, these are dead issues, given the unit owners’ late agreement to remove and not to re-install the humidifiers.
[22] The Owners say that such relief is now redundant or, in the alternative, that if a declaration is to be made it should be to the effect that the installation of the humidifiers was not in breach of the condominium corporation’s declaration.
[23] Given the Owners’ agreement to remove the humidifiers, the disputes regarding the humidifiers are moot. It is no longer necessary for the court to decide whether the Owners were in breach of Article 10(f). Albeit that the Owners’ agreement to remove the humidifiers is without prejudice to their position that they were not bound to do so, they should make good on their promise. Accordingly I would order that the Owners cause or permit the humidifiers to be removed (to the extent that they this has not already occurred) and that such humidifiers should not be re-installed without the consent of MTCC’s board of directors. MTCC will have access to the subject premises in accordance with paragraph 1(a) of its notice of application.
[24] I decline, without deciding the issue either way, to make a declaratory pronouncement that the original installation of the humidifiers was in breach of Article 10(f) of the declaration.
MTCC’s Repair Obligation
[25] The remaining issues between the parties are all connected to the extent to which further work needs to be done in order to satisfy the repair obligations of MTCC. Simply put, is more repair work required over and above what has already been done and the outstanding drywalling that has been recommended by Mr. Brearton?
[26] MTCC’s counsel has characterised the debate as “the reasonable fix versus the perfect fix”.
[27] MTCC’s position is that it is sufficient for it to rely upon the advice of its consultant, Mr. Brearton, that once the planned drywall repairs are completed, the overall result will be a reasonable repair. In particular, MTCC relies on Mr. Brearton’s conclusions that:
a. The state of the air transfer between the units (once the drywalling is completed) will be typical, reasonable and acceptable given:
i. the age and design of the building; and
ii. the applicable provisions of the Building Code and the Fire Code at the time the building was built in or about the late 1980s.
b. The building is performing as it should, according to its age and design and that certain amount of their migration must be expected and tolerated.
c. Smoke stops, now found in more modern buildings, which prevent fire smoke from moving from one unit to another, are also effective in preventing and migration as well. However, smoke stops were not a Code requirement when the building was built. Rather, small breaches and cracks with respect to a building of this type are consistent with the applicable Code requirements at the time the building was built.
d. To complete the “perfect repair” it would be necessary to tear out the expensive finishes in both the Owners’ suite and the suite above (not to mention the other suites in the building on the assumption that the fixes required throughout the building) in order to expose the slab and eliminate any remaining breaches and cracks. This would not be reasonable having regard to the age of the building and the other unit owners.
[28] The Owners’ consultant, Balázs Farkas, describes Mr. Brearton’s recommendations as a “Band-Aid solution”. While the closing of the holes left after the removal of the humidifiers would create an additional barrier against air transfer between suites, there would remain numerous other openings – recessed lights, exhaust grilles, smoke detectors, sliding door tracks, pictures hung on the walls – all of which would remain potential pathways for air transfer. Equalising the air pressure between units, or establishing higher positive air pressure in the Owners’s unit compared to adjacent units would be a practical solution but would not, in and of itself be sufficient. What is required, he opines, is to seal all openings between units. This is not only necessary to resolve the problems experienced by the Owners but, according to W. Carson Woods, an architect consulted by the Owners, openings in the concrete floor slab between the units would not, in fact, have satisfied the requirements of the Building Code in effect in 1986.
[29] I am not inclined to accept the view that the applicable requirements of the Building Code and the Fire Code have not been met, and prefer the evidence of Mr. Brearton in that regard. That, however, does not end the debate.
[30] On the question of air supply, adjustments were attempted, seemingly without success. In a report dated 20 May 2015, Mr. Brearton wrote:
As Mr. Farkas noted, the air supply to the building was increased, to the original design specifications provided for the construction of the building; this was done specifically to satisfy Mr. Farkas’s request. The resulting pressure was so high in the corridor that newspapers were reported to be blowing down the corridor when people opened their entrance doors. Several occupants complained that they were almost knocked over by the force of the entrance door due to the increased corridor pressure. During this time, I’m not aware of any attempt by Mr. Farkas or his client to consider whether the change, made for their benefit, improved their circumstances in suite 212.
[31] MTCC argues that it has fulfilled its responsibilities under the Condominium Act and has acted reasonably because:
a. it hired an engineer to advise it as to the appropriate fix;
b. it has attempted to carry out the fix recommended by its engineer;
c. it is content with its engineer’s conclusion that, inter alia, the repair he suggests is reasonable; and,
d. it is not required to follow the advice of the Owners’ advisers.
[32] In fulfilling its duties, directors and officers are required to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances: Condominium Act, 1998, S.O. 1998, c.19, s. 37(1)(b). A director will not be in breach for if he or she relies in good faith upon a report or opinion of, inter alia, an engineer whose profession lends credibility to the report or opinion: s. 37(3)(b).
[33] Furthermore, the board of directors of a condominium corporation is charged with balancing the private versus communal rights of owners: York Condominium Corp. No. 382 v. Dvorchik, 1997 1074 (ON CA). Courts are reluctant to interfere with such decisions: Baliwalla v. York Condominium Corporation No. 438, 2007, 14915 (ON SCDC) at para. 27.
[34] The Owners challenge the reasonableness of MTCC’s reliance on Mr. Brearton’s opinions. They say that he has said conflicting things in a succession of reports which he has provided to the board. Furthermore, MTCC has insisted on the removal of both humidifiers despite Mr. Brearton identifying only the humidifier in the master bedroom for removal. They maintain that MTCC’s failure to attach any or sufficient weight to the legitimate health concerns of the Owners undermines the board’s claims of reasonable reliance.
[35] There is no doubt that as the dispute has evolved, the views of the various consultants involved have reflected that evolution. For example, steps initially taken by MTCC based on the recommendations of their consultants did not fully solve the problem (see the 12 May 2014 reasons at para. 49). The experts kept going. The principal experts involved – Mr. Brearton and Mr. Farkas – have both endeavoured throughout to provide helpful guidance.
[36] The Owners now seek what amounts to a guarantee that there will be no reoccurrence. The solution offered by Mr. Farakas is more likely to provide that. But, in my view, it goes further than can reasonably be required. Not only would it result in wholly disproportionate remedial work being required (if one measures the expense and disruption, on the one hand, against the likely outcomes) but it would go well beyond what is reasonable and required having regard to the age and construction of the building.
[37] To adopt the labels used by MTCC, the standard is one of reasonableness, not perfection, and on that basis, MTCC is not, in my view, in breach of its duties to repair and maintain pursuant to sections 89 and 90 of the Condominium Act, and I therefore decline to make the declarations sought by the Owners in that regard. In particular, I do not accept that I should order MTCC to deliver an engineer’s report as described in paragraph 1(e) of the Owners’ amended notice of application.
Status Certificates
[38] I am not persuaded that I have jurisdiction to dictate in advance what MTCC states on a status certificate that it issues in accordance with section 76 of the Condominium Act. Subsection 1 (h) specifies that a status certificate must contain “a statement of all outstanding judgments against the corporation and the status of all legal actions to which the corporation is a party”.
[39] Counsel for MTCC confirmed in argument that, from MTCC’s perspective, once the work it wants to complete (as recommended by Mr. Brearton, and including the humidifier-related drywall repairs) is done, from MTCC’s perspective there would be no need to mention the smoke migration problems on any status certificate issued by MTCC in relation to the planned sale of the Owners’ unit.
[40] In connection with the humidifier and “fix” issues, once the work recommended by Mr, Brearton has been completed, so far as the issues that have been raised in these applications are concerned (unless there has been a failure to comply with any relief ordered in connection with those applications, or an appeal is pending from any order made in the applications), there would seem to be no reason to make reference to this litigation. But I add the important caveat that, ultimately, such determination is up to the board having regard to its appreciation of its obligations under section 76 at the time that it is requested to provide a status certificate.
[41] As already mentioned, there is at least one extant action between the parties. It would be presumptive of me to make any observation about what should or should not be said on a status certificate in connection with that litigation, and I accordingly declined to do so.
Costs
[42] Not fully reflected in these reasons is the history of a series of case conferences and at least one attendance in open court to deal with undertakings and refusals, the costs of which were reserved until these applications have been heard.
[43] It would be an understatement to say that the parties have simply not been able to resolve the differences through ordinary dialogue. It is highly regrettable that the time and expense associated with court proceedings of this nature has been incurred. That said, while there has been a measure of intransigence on both sides, matters have been complicated by the involvement of insurers and the legitimate concerns on the part of the Owners about their obligations and, hence, potential liability, to prospective purchasers of their unit.
[44] The bills of costs submitted by the parties indicate that each side has incurred costs in the vicinity of $100,000 on a partial indemnity scale. Although, on a strict headcount of the requests for relief made by the Owners and MTCC respectively, MTCC has enjoyed the larger measure of success on these applications, it is my view, in the exercise of my discretion under section 131(1) of the Courts of Justice Act, that the interests of justice are best served by making no awards as to costs of these applications to either side. Accordingly the parties shall each bear their own costs.
Orders
[45] The parties should send to me, via my judicial assistant, draft orders which implement these reasons for signature. Should there be any disagreement over the content of the orders, I may be spoken to.
Graeme Mew J.
Released: 1 December 2015
Corrections made: 28 September 2016:
Paragraph 10: In the summary of relief sought, under the heading “By The Owners”, in subparagraph (a) the word “perspective” is replaced by the word “prospective”.
Paragraph 27: In subparagraph (d) of the quoted extract from the conclusions of Mr. Brearton, the word “sweets” is replaced by the word “suites”.
CITATION: MTCC No. 985 v. Cheney, 2015 ONSC 7124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 985
Applicant
– and –
THOMAS CHENEY and SHARON MACKAY
Respondents
AND BETWEEN:
THOMAS CHENEY and SHARON MACKAY
Applicants
- and –
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 985
Respondent
REASONS FOR DECISION
Mew J.
Released: 1 December 2015