



COURT OF APPEAL FOR ONTARIO

CITATION:
    York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914

DATE: 20211222

DOCKET:
    C69608

Lauwers, Paciocco and Thorburn
    JJ.A.

BETWEEN

York Region Standard Condominium Corporation No. 972

Applicant
    (Respondent)

and

Peter
    Tak Ming Lee and Mun Chung Leung

Respondents
    (Appellants)

Peter Tak Ming Lee and Mun Chung Leung,
    acting in person

Tony Bui, for the respondent

Heard: December 8, 2021

On appeal from the judgment of Justice Carole
    J. Brown of the Superior Court of Justice, dated May 28, 2021, with reasons
    reported at 2021 ONSC 3877.

REASONS
    FOR DECISION

[1]

The appellants are the owners and residents of a
    condominium unit in Richmond Hill. They appeal a compliance order made against
    them under ss. 117 and 134 of the
Condominium Act, 1998
, S.O.
    1998, c. 19. The order directed the appellants to permit the respondent, York
    Region Standard Condominium Corporation No. 972, or its agents to enter and
    inspect their unit and, if necessary, undertake maintenance or repairs under s.
    93(3) of the Act and Article VII of the Corporations Declaration in relation
    to the removal of Kitec plumbing. In addition, the court ordered the Corporations
    expenses to be added to the common expense payments due for the appellants unit
    and collected in the same manner as under s. 92(4) of the Act and Article VII
    of the Declaration. The court awarded costs on a full indemnity basis in the
    amount of $4,541.95, also to be added to the units common expenses.

[2]

The appellants have now completed the repairs to
    their unit to the satisfaction of the Town of Richmond Hill and the
    Corporation, which was permitted to inspect the unit sometime after the judgment
    under appeal was rendered. The appeal is not moot, however, because the appellants
    wish to argue on the merits in order to avoid the expense and cost consequences
    of the judgment below.

[3]

The basic facts are not in dispute. A couple of
    instances of leaks in Kitec plumbing in the building alerted the Corporation to
    the fact that Kitec plumbing was present in the units in the building. That
    form of plumbing had been recalled as faulty by its manufacturer in 2005. To prevent
    any future plumbing failures, on August 27, 2018, the Corporation
    issued a notice requiring unit owners to remove Kitec plumbing from their
    units.

[4]

The Corporations notice to unit owners gave
    them two options. The first was to use the contractors recommended by the
    Corporation to undertake the work at a set fee to be paid by the unit owner.
    The second option was to use a qualified contractor of their choosing and pay
    directly, but an owner taking this option would still be obliged to pay $750
    plus HST to the Corporation so that its engineer could inspect and certify that
    the work was done. The deadline for choosing the option was extended once. The appellants
    elected the second option but neglected to send a cheque to cover the
    inspection fee.

[5]

The appellants took out a building permit from
    the Town of Richmond Hill in December 2018, but because of Mr. Lees ill
    health, were unable to proceed. On November 25, 2019, Mr. Lee advised the
    Corporation that the Kitec plumbing had been removed but refused access for
    inspection purposes. The Corporation later learned that the Town of Richmond
    Hill had not closed the permit, indicating that there had been no engineers inspection.

[6]

In January 2020, the appellants again refused
    access to the Corporations agents. In July 2020, the Corporation brought the
    compliance application that resulted in the judgment now under appeal. The
    decision was released on May 28, 2021.

[7]

In an effort to close the building permit with
    the Town of Richmond Hill, the appellants engaged their own consultant to inspect
    the unit on June 14, 2021. The Town of Richmond Hill signed off on the building
    permit indicating that the repairs had been completed properly on June 22,
    2021. Later, the appellants allowed the Corporations agents access to inspect.
    The purpose of the compliance order has therefore been met.

[8]

Against that factual background, the appellants
    make several arguments. First, they argue that Kitec plumbing did not pose a
    significant risk to the building. We do not accept this argument. As noted
    above, there was evidence before the application judge that on two occasions
    leaky plumbing had been discovered in the building and that Kitec plumbing had
    been recalled because it was prone to leak. Not surprisingly, on two occasions Kitec
    plumbing has been recognised as a dangerous condition by the Superior Court:
Hawkins v. TSCC 1696
, 2019 ONSC 2560, at para. 39;
TSCC 1724
    v. Evdassin
, 2020 ONSC 1520, 18 R.P.R. (6th) 136, at para. 7.

[9]

Second, the appellants dispute the truth of the
    affidavit of the Corporations employee, in which she deposed that the
    Corporation experienced two significant water damage incidents as a result of
    faulty Kitec plumbing. Mr. Lee asserts, without evidence, that the failures
    were not significant, but were only pinhole leaks. He asks us to infer that
    the witness gave false evidence and that her affidavit should therefore be
    entirely rejected by the court. We do not accept this argument. In the context
    of a large, multi-unit residential building, pinhole leaks could well result in
    significant water damage. They certainly portend future more serious failures. The
    evidence substantiates, as the application judge found, the need for the
    Corporation to take the steps that it did in light of the Corporations
    responsibility for the building.

[10]

Third, the appellants argue that the Corporation
    could not use s. 117 of the Act to require owners to remediate their units
    because that section is aimed at bad conduct on the part of unit owners.
    Section 117 provides:

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 cause injury to an individual.

We do not accept this argument. This
    section is aimed at curbing harmful activities, as the appellants argue, but
    the language also covers a condition. We agree with the respondent that a
    condition of faulty plumbing in danger of failure is likely to damage the
    property and amply justifies a remedial order.

[11]

Next, we note that the application judge stated
    in her reasons that the appellants have not provided responding materials.
    The triage order made by Diamond J. required the appellants to file their
    responding record by March 17, 2021, which would have permitted time
    for the service of reply evidence by the Corporation. The appellants provided
    counsel for the Corporation with an unsworn, undated affidavit from Mr. Lee and
    Statement of Defense on April 29, 2021, more than a month late. The
    appellants filed their material with the court on May 7, 2021, the last
    business day before the application was scheduled to be heard in writing.

[12]

There is no explanation as to why the materials served
    and filed by the appellants did not appear to reach the application judge. We
    have reviewed the material that they filed. The substance of the appellants
    submissions has been discussed above. In our view, even assuming that Mr. Lees
    affidavit was admissible despite being unsworn, it added no new information
    that would have changed the outcome.

[13]

As to the matter of legal costs, under s.
    134(3)(b) of the Act, the court may order an owner to pay the damages incurred
    by the applicant as a result of non-compliance and the costs incurred by the
    applicant in obtaining the order. An award of damages or costs, along with any
    additional actual costs to the corporation in obtaining the order, shall be
    added to the common expenses of the unit under s. 134(5).

[14]

The application judge followed a long line of precedent
    in ordering costs against the appellants 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. In applying this
    law, she noted:

Due to the recalcitrance of the [appellants],
    the matter could not be settled without the intervention of the court. When the
    [appellants] 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.

[15]

We see no error in her approach to costs.

[16]

We dismiss the appeal on the merits, with costs,
    and while we grant leave to appeal costs, we also dismiss the costs appeal.

[17]

In this court, the Corporation seeks costs of
    about $9,000. It is unusual for this court to award costs for an appeal that
    exceed the costs of the proceeding leading to the judgment under appeal. We see
    no reason to exceed the application judges award of costs, and therefore fix
    costs before this court in the amount of $4,500, all-inclusive, and order that this
    amount be added to the common expenses attributable to the owners unit.

P.
    Lauwers J.A.

David
    M. Paciocco J.A.

J.A.
    Thorburn J.A.


