There is no doubt that a condominium corporation has maintenance and repair obligations; however, the extent of those obligations is often debated and results in a court dispute to be decided by a judge.

Maintenance and repair obligations of both owners and condo corporations are defined in the Condominium Act, which sets out the minimum default obligations. These default obligations can be redefined by a condominium’s declaration.

As such, when examining the extent of the corporation’s obligations, in terms of maintenance and repair, one must look to sections 89 to 92 of the Act and then your specific declaration. However, to fully understand the repair and maintenance obligations of a corporation it is always helpful to look to the courts as well, to see how they have interpreted and defined these obligations.

Here are three cases over the last year which shed some light on what condos should and should not be doing to fulfill their maintenance and repair obligations.

The Court in Berman v. YCC No. 99 (Oct 2021) dealt with the issue of the reasonable expectation of owners regarding maintenance and repair of common elements. In this case, the issue was the replacement of a bedroom window. The owner, Mr. Berman, wanted his bedroom window replaced as he felt it was too drafty. He expected that it would be replaced when he said it needed replacement. The condo did not agree that the window needed immediate replacement as suggested by the owner but had the window on its list of windows to replace in the next year.

The condo was a 160-unit condo. It was 50 years old and everyone wanted new windows. The condo was replacing windows as needed and replaced them in priority depending on the amount of age and wear. The condo had a window replacement policy. Mr. Berman’s window was scheduled to be replaced in 2021. Mr. Berman began his court application for oppression under s. 135 of the Condo Act in November 2020. The window was replaced in March 2021 as originally promised. Despite this, Mr. Berman continued his court action for damages as the temperature in his bedroom was a few degrees colder than the rest of his unit.

The court dismissed the owner’s application and held that an owner cannot expect more from the board other than for the board to manage the condo honestly, in good faith and with due diligence as required of them under s. 37 of the Act. The court found that the condo had an economically responsible and sensible window replacement policy. It inspected the owner’s window multiple times over the years. It did not ignore his unit. It replaced a bathroom window when needed and re-caulked when needed. The court found that the owner could not show that the condo behaved unreasonably or oppressively. There was no evidence that the window failed or needed to be replaced before it was replaced. The condo met their obligations to repair and maintain the common elements.

An earlier case from April 2021, which was referenced in the Berman case, set out the factors a court will take into account when assessing the corporation’s duty to repair. These factors are:

• Relationship between the condo corporation and the unit owners.
• Opinion of the unit owners.
• Wording of their contractual obligations.
• Nature of the condo development.
• Objective standards of quality and workmanship.
• Replacement cost of the facility to be repaired.
• Economic and budgetary constraints.
• Need for repairs.
• Nature of the work required to effect the repairs.
• Timetable for effecting the repairs.
• Benefit that may be acquired if the repairs were done compared to the detriment that be occasioned by the failure to undertake the repairs

The court emphasized that the standard a corporation must meet will be fact specific but it will not be perfection. The standard is one of reasonableness and given that it is fact specific, it will be a flexible test taking into account specific circumstances. The court noted, in the above case, that the COVID-19 pandemic affected the progress of anything in Ontario and as such a condominium corporation could not be faulted for the delay in implementing its plans to repair the common elements of the building. The court noted that the condo must balance the private interests of individual unit owners with the communal right of all and some deference should be afforded to a condo’s repair and maintenance obligations. The court found that the condo was not slow to act and their actions were not unreasonable.

A very recent case regarding winter maintenance, Musa v. Carleton Condominium Corporation No. 255 (Feb 2022) addressed the importance of following industry standards. In this case, the court was dealing with a negligence claim for a slip and fall in a condo’s parking lot. The condo corporation and the snow removal contractor were sued. The contractor acknowledged that all the condo’s obligations with respect to winter maintenance was completely delegated to it by contract and as such for the purposes of the court action the contractor was deemed the “occupier” under the Occupier’s Liability Act and liable for damages.

The issue in this case came down to the contractor’s delay in spreading salt which was found to be unreasonable as it was not in accordance with industry standards. The expert who testified referenced two specific industry standards. The first being the “Best Management Practices for Salt Use, Technical Bulletin No. 6,” Canadian Parking Association, CPA, 2006 and the second being the “Best Practices Road Salt Management, Salt Use on Private Road, Parking Lots and Walkways,” Transportation Association of Canada, April 2013. 2. The court found that the contractor did not follow these standards and as such his actions were not reasonable.

These cases illustrate some very important lessons for condo directors, owners, property managers and contractors. 

1. As your buildings start to age and major components (such as windows) require replacement but the cost of replacing them all at once is not feasible, develop an “economically responsible and sensible” policy for replacement of those items as the condo did in Berman and make sure you follow the policy. The court in Berman placed a great deal of weight on the policy that the board developed and followed when finding that the condo did not breach any duties. Rely on professionals to advise you as to what factors should be taken into account when determining what is a priority.

2. Take note that the court is not going to hold condos to the standard of perfection. There are a variety of factors, as described above, that the court will look at when assessing whether or not the condo breached its duty to maintain and repair. The test is fluid and very fact specific. If there are extenuating circumstances that are delaying repairs and maintenance (such as the COVID pandemic, supply chain issues, availability of contractors, etc.), make sure you properly document these extenuating circumstances and consider getting letters from contractors and suppliers to confirm that these are reasons why things are delayed. You never know when those letters will come in handy to show that the specific circumstances the condo was dealing with was out of their control. These letters could provide useful evidence in case an owner commences a court application complaining that the condo is not repairing things quickly enough.

3. The importance of carefully drafted written contracts with contractors, especially in terms of winter maintenance but definitely applicable to all types of contracts, cannot be overstated. If you are expecting the contractor to assume any type of legal liability that would normally fall on the condo, be sure to include clear language in your written contracts stipulating this and make sure you are not taking on any of the duties or work that the contractor is being contracted to do and you are not directing the contractor on how to do the work.

In terms of winter maintenance contracts, from a condo’s perspective, it is important that the entire obligation to maintain the roads and walkways is delegated to the contractor and the condo does none of this work and does not tell the contractor how to do this work. The contractor should not be taking any direction from the condominium or its management. The potential short-term savings of doing some of the work yourselves and leaving other parts to the contractor does not help the condo in the long run when a condo is facing a negligence claim for slip and falls. Neither does telling the contractor how they should do their job.

If you are trying to limit your liability, assign the entire maintenance obligations to the contractor under a clearly written contract with properly drafted indemnification provisions as the condo did in the Musa case. In addition, it would be a good idea to ask your winter maintenance contractors if they follow the most current industry standards and incorporate these standards into your written contracts as the standard you are expecting the contractor to meet.

Sonja Hodis is a condominium lawyer based in Barrie who practices condominium law in Ontario. She advises condominium boards and owners on their rights and responsibilities under the Condominium Act, 1998 and other legislation that affects condominiums and represents her clients at all levels of court, various tribunals and in mediation/arbitration proceedings. Sonja can be reached at (705) 737-4403, sonja@hodislaw.com or you can visit her website at www.hodislaw.com.