Case Comment: Demetriou v. Carleton Condominium Corp. No. 59

Post by: Craig Robson

The reasons and result in the recent case of Demetriou v. Carleton Condominium Corp. No. 59 [2012] O.J. No. 465 (Small Claims Court) appear to us be in error, but it is doubtful there will be any appeal taken to correct the error (given the rarity of appeals from Small Claims Court decisions).

The Court in this matter concluded:

“52     The plain meaning of section 89 dictates that a Condominium Corporation has a clear duty to its unit owners to repair a damaged unit to its standard unit type when first built. It excludes an obligation to repair improvements to the unit done by an owner.”

Despite the fact the decision refers to section 89 of the Condominium Act, it appears the provisions of that section were misunderstood by the Court.

The operative part of section 89 states:

89.  (1)  Subject to sections 91 and 123, the corporation shall repair the units and common elements after damage. 1998, c. 19, s. 89 (1).

The Court appears to have completely overlooked the opening qualifier – “Subject to sections 91 and 123…”.  Section 91 of the Condominium Act clearly states:

91.  The declaration may alter the obligation to maintain or to repair after damage as set out in this Act by providing that,

(a) subject to section 123, each owner shall repair the owner’s unit after damage;

(b) the owners shall maintain the common elements or any part of them;

(c) each owner shall maintain and repair after damage those parts of the common elements of which the owner has the exclusive use; and

(d) the corporation shall maintain the units or any part of them. 1998, c. 19, s. 91.

In this case, the declaration of Carleton Condominium Corp. No. 59 clearly provides that the unit owners are to repair their units after damage.

It is hard to understand how the Court could come to the conclusion noted above given the clear wording of section 91 and the Declaration.

The Court’s conclusions on what constitutes a standard unit for the purposes of repair and insurance obligations under the Condominium Act are likewise suspect.

It is to be hoped that this decision does not become recognized authority by any higher Court, given the apparent error in reasons and the result.

http://www.rcllp.ca

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