



COURT OF APPEAL FOR ONTARIO

CITATION: Mohamoud v.
    Carleton Condominium Corporation No. 25, 2021 ONCA 191

DATE: 20210329

DOCKET: C67919

Tulloch, Miller and
    Thorburn JJ.A.

BETWEEN

Sadiya Ali Mohamoud

Applicant (Appellant)

and

Carleton Condominium
    Corporation No. 25

Respondent (Respondent)

Gary G. Boyd and Hilary Chung, for the appellant

Melinda Andrews, for the respondent

Heard: November 17, 2020 by video conference

On appeal from the judgment of
    Justice Heather J. Williams of the Superior Court of Justice dated December 9,
    2019, with reasons reported at 2019 ONSC 7127.

REASONS FOR DECISION

[1]

T
he appellant appeals the order of the application
    judge dated December 9, 2019, which dismissed her application under
    the
Condominium Act
, 1998, S.O.
    1998, c. 19 (the Act).

[2]

The appellant has owned
    a unit in the respondents condominium since 2009. The appellant brought an
    application against the respondent alleging that: (1) the corporation failed to
    properly maintain and repair the common elements of the condominium building
    under ss. 89 and 90 of the Act, and (2) it acted in a manner that was
    oppressive or unfairly prejudicial, or that unfairly disregarded her interests,
    under s. 135 of the Act.

[3]

The application
    involved a noise complaint relating to fans located on the roof directly above
    the appellants condominium unit. The appellant informed the respondent that
    the noise was causing her discomfort in 2014. In 2019, the respondent removed
    two fans above the appellants unit. According to the appellant, the removal of
    these two fans reduced the noise to a tolerable level. The appellant alleged
    that the respondent did not take her complaints seriously, and did not rectify
    the problem in a timely manner.

[4]

The appellant asks this
    court to set aside the order of the application judge, raising two grounds of appeal:

1.

the application judge erred in using the legal
    test of reasonableness when determining whether the respondent corporation
    acted oppressively within the meaning of s. 135 of the
Act
; and

2.

the application judge erred by only considering
    the applicants reasonable expectation that the respondent would comply with
    its maintenance and repair obligations, without also considering her other
    reasonable expectations, including that: the respondent would address her
    concerns in a timely manner; she could have quiet enjoyment of her unit; the
    respondent would act in accordance with the professional advice it received;
    and the respondent would take her concerns seriously.

[5]

For the following
    reasons, we dismiss the appeal.

A.

The test under s.
    135(2) of the act

[6]

The judge dismissed the
    application, finding that the respondent met its obligations under the Act. In
    particular, she found that the respondent acted reasonably and appropriately when
    responding to the appellants noise complaint.

[7]

The appellant agrees
    that the application judge properly applied the test of reasonableness when she
    assessed whether the respondent breached its obligation to maintain and repair
    the common elements of the condominium under ss. 89 and 90 of the Act.

However, she submits that the application judge erred in applying the
    same test of reasonableness when determining whether the respondents conduct
    was oppressive within the meaning of s. 135 of the
Act
. Put
    another way, the appellant contends that the application judge conflated the test
    of oppression under s. 135 of the
Act
with the test of reasonableness under ss.
    89 and 90
.

[8]

Under s. 135(2) of the Act,
    the court must determine whether the impugned conduct is, or threatens to be,
    oppressive or unfairly prejudicial to the applicant or unfairly disregards their
    interests. The test under s. 135(2) has two prongs. First, the court must
    assess whether there has been a breach to the claimants reasonable
    expectations. If the answer is yes, the court must then go on to consider
    whether the conduct complained of amounts to oppression, unfair prejudice, or unfair
    disregard of the relevant interest:
Metropolitan
    Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II)
    Corporation
, 2011 ONCA 667, 285
    O.A.C. 372, at paras. 5-6;
3716724 Canada Inc. v. Carleton Condominium
    Corporation No. 375
, 2016 ONCA 650, 61 B.L.R. (5th) 173, at
para. 29
.

[9]

Reading the application
    judges reasons in their totality, it is clear that she understood and applied
    the correct test under s. 135(2) of the Act. The application judge correctly
    sets out the test at para. 36 of her reasons:

A unit owner seeking an oppression remedy under the
Condominium
    Act
must show both that there was a breach of their reasonable
    expectations and that those reasonable expectations were breached by conduct
    legitimately characterized as oppressive. (
Weir
, supra, at paras.
    10-11.)

[10]

The application judge also grasped
    the nature of the appellants claim in relation to s. 135(2): namely, that the
    respondent allegedly ignored her, disbelieved her complaints about the noise
    and deliberately dragged its heals when responding to her complaints.

[11]

After thoroughly engaging with
    these concerns, the application judge made the following finding:

I find that Ms. Mohamoud had a reasonable expectation that
    CCC25 would comply with its statutory obligations to repair and maintain its
    common elements. I also find that CCC25 acted reasonably and in compliance with
    these obligations.

Stated otherwise, the application
    judge found that the appellant failed to satisfy the first prong of the test: the
    respondent did not act in a manner that breached the appellants reasonable
    expectations because it acted reasonably and complied with its statutory
    obligations.

[12]

Moreover, based on the factual
    matrix before her, the
application judge was entitled to find that the respondents conduct did not
    amount to oppression, unfair prejudice, or unfair disregard of the appellants
    interests on the basis that the respondent acted reasonably. In our view, the
    evidence, as set out by the application judge, was consistent with the finding
    that the respondent did not act in a manner that was oppressive or unfairly
    prejudicial to the appellant, or that it unfairly disregarded her interests. In
    coming to that determination, the application judge noted that:

1. There was evidence that the fans were
    inspected and maintained on a regular basis by a company retained by the
    respondent;

2. After the appellant brought her concerns to
    the respondents attention, the fans were inspected specifically with a view to
    identifying the source of the noise;

3. In August 2014, the respondent retained a
    company that inspected the roof of the building and found nothing that was
    rattling;

4. In January 2015, the same company inspected
    and serviced the fans, and was unable to identify any problems;

5. In the spring of 2015, the appellant
    retained a consultant who concluded that none of the noise levels in the
    appellants unit exceeded industry guidelines. Highway traffic and a
    refrigerator were the sources of the loudest noises in the appellants unit;

6. In June 2016, the company retained by the
    respondent inspected the fans and exchanged some of the blower assemblies. The
    company placed quieter blowers in the fans above the appellant's unit;

7. In February 2017, the company conducted an
    "on/off' test to ascertain which fans caused the noise. The appellant
    reported that turning off fans other than those over her own unit eliminated
    the noise problem entirely. The company removed those fans;

8. In September 2018, mechanical engineers inspected
    the two fans over the appellants unit and concluded that neither fan was
    particularly noisy.  One of the fans was quiet according to industry standards,
    while the other had only a slight bearing noise;

9. The fans over the appellants unit were
    serviced on October 5, 2018;

10. When the respondent sought to change the
    fans over the appellants unit, the appellants consultant objected to the
    installation instructions of the fans' manufacturer, resulting in further
    delay;

11. The new fans were installed on July 16,
    2019, in accordance with the manufacturer's original instructions, even though
    the respondents expert was of the opinion that these fans were not the cause
    of the noise in the appellant's unit; and

12.  After the fans over the appellants unit
    were replaced, the appellant initially said that the noise and vibration
    persisted, however her own expert did some testing and reported that the noise
    in her unit was at acceptable levels.

[13]

As a result, the application
    judge was satisfied that the respondent had addressed the appellant's complaint
    in a reasonable manner by meeting with her, communicating with her orally and
    in writing, visiting her unit on multiple occasions, retaining contractors and
    experts to investigate, and in following the recommendations of the experts.
    The application judges finding that the respondents conduct did not amount to
    oppression, unfair prejudice, or unfair disregard is entitled to deference on
    appeal.

[14]

We find no error in the
    decision of the application judge.

[15]

This ground of appeal
    is dismissed.

B.

The applicants other
    reasonable expectations

[16]

Again, the appellant
    submits that the application judge erred by failing to consider her reasonable
    expectations that: the respondent would address her concerns in a timely
    manner; she could have quiet enjoyment of her unit; the respondent would act in
    accordance with the professional advice it received; and the respondent would
    take her concerns seriously.

[17]

The appellants
    argument is not borne out in the facts, as found by the application judge, and
    as reiterated above, in para. 12. The respondent tried to address the
    appellants concerns in a timely manner. It also tried to ensure that she had
    quiet enjoyment of her unit. The respondent took action even when it was
    contrary to the professional advice that it had received. The application judge
    specifically found that the respondent took the appellants concerns seriously,
    and that the respondent spent considerable amounts of money trying to address
    them.

[18]

We find no error in the
    decision of the application judge. It appears the appellant is simply
    attempting to re-litigate the factual determinations made by the application
    judge.

[19]

We give no effect to
    this ground of appeal.

C.

Conclusion and
    Disposition

[20]

The appeal is
    dismissed. As noted in the hearing, costs are awarded to the respondent in the
    amount of $12,000, inclusive of
disbursements and HST
.

M.
    Tulloch J.A.

B.W.
    Miller J.A.

J.A.
    Thorburn J.A.


