Court File and Parties
COURT FILE NO.: CV-20-00644644
DATE: 20210528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
York Region Standard Condominium Corporation No. 972
Applicant
– and –
Peter Tak Ming Lee and Mun Chung Leung,
Respondents
Tony Bui, for the Applicant
HEARD: In writing
REASONS FOR DECISION
C. J. Brown J.
[1] The applicant, York Region Standard Condominium Corporation No. 972 (“YRSCC 972” or the “Corporation”) brings this application for a compliance order pursuant to section 134 of the Condominium Act, 1998 (the “Act”) to permit it or its authorized agents to enter Penthouse 15 (legally described as Unit 12, Level 13) at YRSCC 972 (the “Unit” or the “subject Unit”) and adjacent common elements and areas, upon giving reasonable notice, to inspect and confirm whether Kitec plumbing has been properly removed and if not, to do so at the respondents’ expense.
[2] The respondents have not provided responding materials.
The Parties
[3] YRSCC 972 is a condominium corporation created by the registration of a Declaration and Description on title to the lands in the City of Richmond Hill in January 2002 under the Act.
[4] The respondents are the registered owners and residents of the Unit.
The History of this Proceeding
[5] The units at the condominium Corporation were initially constructed using Kitec plumbing, which is known to prematurely fail and corrode, with increasing failure rates over time, which can cause extensive water damage and flooding. Kitec plumbing was recalled by its manufacturer in 2005. Kitec was the subject of a multi-national class action lawsuit resulting in its manufacturer paying a $125 million (USD) settlement in 2012.
[6] Following significant water leakage at YRSCC 972 between March 2017 and August 2018, the Corporation discovered that units in the building were constructed with Kitec plumbing, fittings and manifolds.
[7] In 2018, the Corporation commenced a building-wide Kitec removal program, whereby all units were required to remove Kitec plumbing from their units as part of their obligations to maintain and repair their units. If owners failed to remove the plumbing on their own, the Corporation would do so on behalf of the owners who would be deemed to consent to the associated charges. On August 27, 2018, the Corporation delivered notices to all owners, pursuant to section 92 of the Act, requiring the removal of Kitec plumbing from their units. Pursuant to the Act, the owners may undertake the maintenance and repair themselves where failure to do so could cause damage to property and, should the owners not do the said work within a reasonable time, the Corporation may undertake the work at the owner’s cost (Act, ss.92(3) and (4).
[8] Whether the owners used the Corporation’s contractor or a contractor of their choice, all owners were required to arrange an inspection with the Corporation’s engineers to verify that the Kitec plumbing was removed, obtain a Building Permit from the City of Richmond Hill’s Planning and Regulatory Services Department, which Permit had to be opened by the Corporation’s engineers, and pay the corporation $750 to cover the cost for its engineers to inspect and certify the Kitec removal and close the Building Permit.
[9] In Kitec-free buildings, insurance premiums are substantially reduced, such that removal of the Kitec plumbing protects all unit owners and the building from water leakage and, as well, reduces insurance rates.
[10] In order to be certified as a Kitec-free building, there must be an inspection by the Corporation’s engineers to verify the removal. Certification of the building as Kitec-free benefits all owners and residents of the building. As regards removal of Kitec from YRSCC 972, the Corporation’s engineers have verified the removal of the Kitec plumbing from all units except the subject Unit of the respondents.
[11] While the respondents take the position that they have removed the Kitec plumbing from their Unit, they refuse to permit the Corporation’s engineers to enter and inspect their Unit.
This Application
[12] From the time of the notice in August of 2018, through early 2020, the respondents did not provide any information regarding the progress of removal of Kitec from their Unit. In 2019, the respondent, Mr. Lee, claimed that he had to postpone the Kitec removal for medical reasons. On May 31, 2019, he admitted that no work had been started on the Unit, but that it would be done once his medical doctor had confirmed that his health condition was stable. From May 2019 through the present, no medical evidence has ever been provided, despite numerous requests for same.
[13] As regards removal of the Kitec from the Unit, the respondents were silent until November 25, 2019 when Mr. Lee advised the Corporation that the Kitec had been removed from his Unit. When the Property Manager advised Mr. Lee that the Corporation’s engineers would have to enter the Unit to inspect the Kitec removal, and gave reasonable notice of said inspection, Mr. Lee refused to permit entry. Mr. Lee indicated that the inspection was being taken care of through the City of Richmond Hill. However, when the Property Manager contacted the City of Richmond Hill, he was advised that the Building Permit for the subject Unit “was not completed”, “the unit had not been approved” and that the Unit would need to “fix the deficiencies”, call for an inspection and require an engineer’s report, as set forth in the supporting affidavit to this Application.
[14] The respondents were reminded that a Building Permit could not be closed without an engineer’s inspection and were notified that the Corporation’s engineers would conduct the requisite inspection on January 27, 2020. Again, the respondents refused to allow the Corporation‘s engineers to enter the Unit. All necessary precautions and procedures were to be taken with respect to COVID protocols. The engineers who would enter the subject Unit would wear appropriate personal protective equipment and there would be confirmation that none of them were displaying COVID-related symptoms.
[15] Despite numerous attempts by the Corporation to resolve the issue, the respondents continued to deny entry to the Corporation’s engineers. To date, no inspection by the Corporation’s engineers has been conducted. The subject Unit is the only unit at YRSCC 972 which has not been certified as Kitec-free.
The Issues
Kitec is a Dangerous Condition
[16] Pursuant to section 117 of the Condominium Act, “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 injure an individual”.
[17] Kitec has been recognized as a dangerous condition in this Court: Hawkins v TSCC 1696, 2019 ONSC 2560 at para 39; TSCC No 1724 v Evdassin, 2020 ONSC 1520 at para 7.
[18] As Kitec plumbing is a dangerous condition, the Corporation is not required to submit this dispute to mediation or arbitration under section 132 of the Act before bringing the Application pursuant to section 134 of the Act: Metropolitan Toronto Condominium Corporation No 747 v Korolekh, 2010 ONSC 4448 at para 49.
The Respondents Have Breached The Act and the Declaration and Rules of the Condominium
[19] Based on all of the facts before this Court, and on the provisions of the Condominium Act and Declaration, the respondents have breached their obligations under the constating documents of the condominium. They have breached section 117 of the Act by permitting a dangerous condition to persist in the subject Unit. They have further breached their obligation to maintain and repair the Unit by failing to confirm removal of the Kitec, pursuant to sections 89 and 90 of the Act and Article VI of the Declaration. They have also obstructed the Corporation’s legal right to enter the Unit on reasonable notice to inspect the removal of Kitec, pursuant to section 19 of the Act and Article XI of the Declaration.
[20] Pursuant to the Act, YRSCC 972 has a duty to take all reasonable steps to ensure that all unit owners and occupants of units comply with the Act and Declarations, Bylaws and Rules of the Condominium. YRSCC 972 is empowered to require the compliance of the owners, and the owners have a corresponding duty to comply.: Condominium Act, sections 17(3) and 119(1) and (3).
[21] Owners are bound by the terms and provisions of the Declaration and Rules of the condominium. In this case, the owners of the subject Unit have failed to comply with their duty under the Act, Declaration and Rules, such that the Corporation is unable to verify the Kitec removal. As a result, the condominium Corporation cannot verify the removal of Kitec from the subject Unit such that its residents cannot be protected from the threat of significant water damage. Further, the building cannot be certified as Kitec-free.
Remedy for a Non-Complying Owner
[22] In the case of a non-complying owner, the court may, in its discretion, issue a compliance order pursuant to section 134 of the Act: York Condominium Corporation No 136 v Roth, [2006] O. J. No. 3417 (SCJ) at para 21.
[23] In exercising my discretion in this case, I have taken into consideration the factors enumerated in Metropolitan Toronto Condominium Corporation No 776 v Gifford, [1989] O.J. No. 1691 (Dist. Ct.) at p. 4. I am satisfied that a compliance order should be granted, based on the factors in this case, as follows:
The condominium Corporation is a residential high-rise building containing 213 dwelling units where residents live together in a community;
All owners and residents of the Corporation have a reasonable expectation that all other occupants will comply with the Act, Declaration and Rules, including properly removing Kitec from their units to eliminate a source of serious water damage and a dangerous condition;
The other owners of the corporation have taken the Kitec removal seriously, and have removed the Kitec plumbing from their individual units. The respondents are the only owners who have not complied with the Kitec removal;
The respondents’ conduct substantially interferes with the other occupants’ reasonable expectations and enjoyment of their units, creates a risk of serious water damage and results in the Corporation facing increased insurance premiums as the building has not been certified as Kitec-free, which increased insurance premiums are borne by all owners of units in the condominium Corporation.
The Act, Declaration and Rules unequivocally state that the owner must comply with them. Non-compliance simply perpetuates a dangerous condition which may cause damage to common elements or other units. While there have not, to date, been complaints about the non-compliance of the subject Unit from other units, this is likely because no one else is aware of the situation.
Costs of this Application
[24] The issues in this matter have continued from 2018 to the present with continued refusal by the respondents to resolve a dangerous condition and comply with the removal of the Kitec from their condominium Unit, despite the fact that all other unit owners have done so.
[25] Prior to bringing this Application under section 134 of the Condominium Act, the applicant retained legal counsel to attempt to resolve the matter in a non-litigious manner. Due to the recalcitrance of the respondents, the matter could not be settled without the intervention of the court. When the respondents 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.
[26] On an application under section 134(3)(b) of the Act, the court may order an owner to pay damages incurred by the applicant as a result of non-compliance and the costs incurred by the applicant in obtaining a non-compliance order, on a complete indemnity basis. Pursuant to section 134(5), an award of damages or costs, together with any additional actual costs in obtaining the order, may be added to the common expenses of the unit.
[27] Costs are to be ordered against the respondents 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: see Simcoe Condominium Corporation No 89 v Dominelli, [2015] O.J. No 3782 (SCJ) at para 10; Peel Condominium Corporation No 304 v Hirsl, [2014] O. J. No. 220 (SCJ) at para 4, citing Metro Toronto v Skyline Executive, 2005 CanLII 13778 (ON CA), [2005] O. J. No. 1604 (CA); Muskoka Condominium Corp. v Kreutzweiser, 10 ONSC 246 (SCJ); Chan v Toronto Condominium Corp. No 1834, 2011 ONSC 108, Grey Standard Condominium Corporation v No 50 Grey Standard Condominium Corporation No 46, 2013 ONSC 1145.
[28] I am satisfied, in all the circumstances, that the applicant is entitled to its costs, both pre-litigation and litigation, on a full indemnity basis, and that in all the circumstances, to ensure compliance with this Order, all costs are to be added to the common expenses attributable to the owners’ Unit.
Orders
[29] Accordingly, this Court makes the following Orders:
Pursuant to sections 117 and 134 of the Condominium Act, the respondents are ordered to permit YRSCC 972 and/or its authorized agents to enter the Unit on reasonable notice, for the purpose of inspecting the Unit and adjacent common elements and areas; undertaking any maintenance or repair to the Unit or common elements pursuant to section 93(3) of the Act and Article VII of the Declaration to prevent potential damage to the property and risk of personal injury to persons on the property, including the removal of any Kitec plumbing; undertake maintenance or repair to the common elements or other areas including restoration necessary to remove any Kitec plumbing; and in the event that the respondents take any steps to restrict entry to the Unit, permit YRSCC 972 to take reasonable steps to gain entry including retaining the services of a locksmith to restore access;
I order that all inspection, repair, maintenance or access costs incurred by YRSCC 972 and/or its authorized agents in carrying out the above inspections or work be added to the common expenses of the Unit and collected in the same manner pursuant to section 92(4) of the Act and Article VII of the Corporation’s Declaration;
The respondents are to pay pre-and post-judgment interest pursuant to the Courts of Justice Act;
I order that the enforcement costs of YRSCC 972 to date be fixed in the amount of $4,541.95, and that this amount be added to those costs to the common expenses attributable to the owners’ Unit. Once all work is done, I will authorize the final costs award, including the pre-litigation fixed amount and the cost of all work required to be undertaken to remove any Kitec plumbing, undertake maintenance or repair to the common elements or other areas including restoration necessary and conduct all necessary inspections as set forth under paragraph 29(1);
I order that the cost of this proceeding pursuant to section 134(5) of the Act be the responsibility of the respondents.
C.J. Brown J.
Released: May 28, 2021
COURT FILE NO.: CV-20-00644644
DATE: 20210528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
York Region Standard Condominium Corporation No. 972
and
Peter Tak Ming Lee and Mun Chung Leung
REASONS FOR DECISION
C.J. Brown J.
Released: May 28, 2021