Smoke Migration and the Obligations of the Condominium Corporation

A recent court decision, MTCC No. 985 v. Cheney, provides a nice summary of the obligations of a condominium corporation dealing with smoke migration.

In this case, the owners were forced to move out of their unit because of cigar smoke entering from a neighboring unit. The court confirmed that the condominium corporation had a duty to investigate and to take steps to resolve any common element problems that were allowing the smoke migration.

The court said that the condominium corporation had initially failed to act with sufficient dispatch, but had ultimately taken the necessary steps to investigate and deal with the smoke migration problems.

There were, however, ongoing disagreements between the complaining owners and the condominium corporation (and their experts) about the required work. The owners also asked that the corporation’s expert certify that smoke migration would not reoccur. The corporation didn’t feel that it should be obligated to supply such a report.

The court was asked to decide these disagreements. It essentially said that a condominium corporation’s obligation is to provide a reasonable result – not necessarily a perfect result.

Here are the key passages from the court decision:

The Owners now seek what amounts to a guarantee that there will be no reoccurrence [of the smoke migration]. The solution offered [by the owner’s expert] 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.

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.

So the bottom line is as follows: a condominium corporation has a duty to take reasonable steps to investigate and resolve common element problems that may be contributing to smoke transfer. But the standard is reasonableness. The corporation is not necessarily obligated to guarantee that there will be no further smoke migration.

Share this:

The Risks of Defamation in the Condominium Setting

A recent court case highlights the unique risks of defamation in the condominium setting. It also notes the special defamation defence that can be available to a condominium director.

In the case of Wan v Lau, Mr. Lau was seeking election to the condominium’s board. He sought proxies for two units that were owned by the Huang family corporation. One of the family members, Mr. Huang, signed a proxy (for the Huang family units) in favour of electing Mr. Lau. However, at the meeting, another attendee (Ms. Chiu) produced a “competing proxy” for the same units, in favour of electing a different candidate. The competing proxy was signed by Mrs. Huang. Ms. Chiu said that the proxy had been supplied to her by Mr. Wan.

The Manager contacted Mr. Huang by telephone. Mr. Huang confirmed the proxies that he had provided to Mr. Lau. Mrs. Huang was out of the country, and it wasn’t possible to reach her to confirm her competing proxy. Therefore, the proxy provided to Mr. Lau was accepted; and the proxy provided to Ms Chiu was rejected.

Mr. Lau was elected at the meeting.

After the meeting, Mr. Lau met with Mr. Huang about the competing proxy (signed by Mrs. Huang). The Court describes the meeting as follows:

Mr Huang examined the proxy and said that the signature appeared to be his wife’s. However, he was adamant that the signature could not be genuine. To his knowledge, his wife was in Hong Kong and knew nothing about the AGM. To his knowledge, his wife knew no one named “Margaret” or “Howard”.

Mr Lau asked Mr Huang to call his wife to confirm these things. Mr Huang refused. In his view there was no need. The signature could not possibly be genuine. How dare “these people” have the audacity to forge his wife’s signature? They could just as easily forge her signature on a deed selling the properties!

Mr. Lau then wrote an email to fourteen persons (including other board members, members of management and certain owners), in which he said that the competing proxy was a forgery. As it turned out, this was not the case. Mrs. Huang had in fact signed the proxy provided to Mr. Wan!

When Mr. Lau learned the truth, he immediately sent a “retraction email” in which he corrected the false statements in his earlier email and said: “If this matter has caused damage or loss to anyone, I will do my best to compensate!”.

The Court said that Mr. Lau’s first email was clearly false and defamatory of Mr. Wan. However, the Court said that Mr. Lau was not liable to Mr. Wan because of the defence of “qualified privilege”. This defence is available to any person (like a corporate director) who has a duty to report to others. The defence applies to any communication that is properly part of the person’s reporting function, as long as the report is made without malice and relates to a matter falling within the interests of the overall organization.

Here’s what the Court said:

Mr Lau was a candidate in the election for which the proxy was obtained from Mrs Huang. He was elected to the board and thus was a director of the condominium corporation at the time of his conversation with Mr. Huang. And he was also a unitholder in the condominium corporation. All three of these circumstances were sufficient to give rise to a legitimate interest to report his conversations with Mr Huang to the board of directors and/or to management of the condominium corporation. I would go further and also conclude that Mr Lau had an interest in communicating these matters to other unitholders in the condominium corporation. These communications would have, as their underlying legitimate purposes, identifying a need for further investigation into Mr Huang’s allegations that the proxy was a forgery. The directors, management, and all unitholders, had a legitimate interest in knowing that a unitholder was alleging fundamental misconduct in the conduct of condominium affairs.

So, in summary, the defence of qualified privilege (as in this case) may protect a condominium director even in the event of a truly false and defamatory statement by that director; but the key is that the reporting must be justified and without malice.

One last thing: the Court said that Mr. Lau’s “retraction letter” was only “partially effective” because it did not include specific mention of Mr. Wan’s name. The Court said:

The substance of the retraction is that the misconduct alleged by the impugned words never took place. In my view, this is a complete retraction of the impugned words. That said, I agree with Mr Wan that the Retraction should have mentioned Mr Wan by name and expressly said that he had done no wrong, contrary to what had been suggested in the impugned words. I find that the Retraction is effective, but not 100% effective, in eliminating the damage caused by the impugned words. Thus, had I found Mr Lau liable, I would have discounted the damages arising from the defamatory publication by 80% because of the swift publication of the Retraction.

So the lesson here is: Condominium Directors do have certain protections when it comes to defamation. But it’s still always best to carefully check the accuracy of a planned publication before pressing the “send” button!

Share this:

Upcoming Kingston Condo Law Primer – 2016

Back by popular demand, the Kingston Condo Law Primer is taking place on April 9th at the Residence Inn Marriott!

Hosted by Nelligan O’Brien Payne’s Condominium Law group, this not-to-be-missed event will address issues of interest to the condominium community.

Some of the topics of discussion at this seminar will include:

Space is limited, register now! Here are the event details:

  • Date: April 9, 2016
  • Location: Residence Inn Marriott, 7 Earl St, Kingston (Click here for a map)
  • Time: 9:00 am – 12 pm
  • Cost: $40 (Includes HST)

To register, please click here to fill out the form and email to wanda.blakney@nelligan.ca or send by fax to 613-531-0857. If you have any questions, Wanda can be reached at 613-531-7905.

Share this:

Week Two Question: The Condo Law News: Change is in the Air Contest – 2016 Edition

Take part in the Condo Law News: Change is in the Air Contest – 2016 Edition! Enter to win five (5) tickets to our upcoming 2016 New Act Primer event, hosted by Nelligan O'Brien Payne’s Condo lawyers!*

*For full contest rules, including a description of the prize, please click here.

There will be four blog posts containing quiz questions in February/March. You will receive a ballot each time you answer a question correctly and then submit an eligible entry during the weekly contest period. For example, if you answer four questions correctly and submit eligible entries for each, you will receive four ballots. The winner will be drawn randomly and announced in a blog post on March 21, 2016. For more details on the contest, including how to enter, please click here.

The Official Week Two Question is:

Many declarations, by-laws or rules contain “indemnification” provisions. These usually state that an owner is responsible for any claims or expenses suffered or incurred by the condominium corporation (as a result of an act or omission of that owner) if those claims or expenses are not covered by the corporation’s insurance. These provisions also typically confirm that the “charge back” can be added to the common expenses for the subject unit.

Bill 106 appears to say that, in order to add a “charge back” to the common expenses for a unit, a condominium’s declaration must contain an indemnification provision.  

True or False?

The question period is now over, thanks for playing!

Want an extra entry into the contest? Use the hashtag!

Simply tweet or post on Facebook about the contest using the hashtag #condolawnewscontest2016 and each user will gain one extra entry into the contest.

(If your Twitter username or Facebook name does not reflect the email address you are entering the contest with, please email us at nelligannews@nelligan.ca to ensure we award you the extra entry.)

Share this:

Week One Question: The Condo Law News: Change is in the Air Contest – 2016 Edition

Take part in the Condo Law News: Change is in the Air Contest – 2016 Edition! Enter to win five (5) tickets to our upcoming 2016 New Act Primer event, hosted by Nelligan O'Brien Payne’s Condo lawyers!*

*For full contest rules, including a description of the prize, please click here.

There will be four blog posts containing quiz questions in February/March. You will receive a ballot each time you answer a question correctly and then submit an eligible entry during the weekly contest period. For example, if you answer four questions correctly and submit eligible entries for each, you will receive four ballots. The winner will be drawn randomly and announced in a blog post on March 21, 2016. For more details on the contest, including how to enter, please click here.

The Official Week One Question is:

What change has Bill 106 made to a condominium corporation’s ability to gain access to a unit in the event of an emergency?

a) A corporation must give at least two hours’ notice before gaining entry to unit.

b) A corporation can only enter the unit without prior notice if there is a provision allowing for such in the declaration or in a by-law of the corporation.

c) A corporation can only enter a unit without prior notice if the emergency is a fire or water incident

d) It is mandatory for a condominium’s bylaws to include a clause granting the corporation access without prior notice in the event of an emergency

The question period is now over, thanks for playing!

Want an extra entry into the contest? Use the hashtag!

Simply tweet or post on Facebook about the contest using the hashtag #condolawnewscontest2016 and each user will gain one extra entry into the contest.

(If your Twitter username or Facebook name does not reflect the email address you are entering the contest with, please email us at nelligannews@nelligan.ca to ensure we award you the extra entry.)

Share this: