Chapter 8: Physical Management and Protection

• Pages: 244-283
• Author: Robert Mullin

244

CHA PTER 8

PHYSICA L

MANAGEMENT AND

PROTEC TION

1 INTRODUCTION

[1] Condominiums have many duties, many of which are inta ngible.

However, in Ontario, all condominiums represent a physical amenity, a

true real est ate asset. Some residential condominiums may reach fifty

stories, while others may be a lea fy winding road. Regard less of their

size or scope, all condominiums are a bui lt-form that, without interven-

tion, will degrade and fa il.

[2] Given such, the Condominium Act, 1998 (the “Act”) outlines a

host of duties for condominiums to maintain t heir physical compon-

ents. First, both a condominium and its un it owners must ensure that

the common elements and units are ma intained and repaired.1 In turn,

a variety of remedies are avai lable if either party fail s to perform their

respective duties. Second, to ensure f unding is set aside for major pro-

jects, all condominiums are required to create a reserve fund, akin to a

capital replacement account.2 Third, changes to the common elements,

made by either a condominium or unit owner, must follow strict ap-

proval procedures.3 Fourth, as a final layer of protection, is a condo-

minium’s duty to obtain insurance for both the common elements and

1 Condominium Act, 1998, SO 1998, c 19, ss 89–90 [Cond o Act].

2 Ibid, s 93.

3 Ibid, s 97.

Physical Management and Protection 245

units, to be drawn upon in the event of an insurable loss.4 Combined,

maintenance and repair eorts address predictable losses, while in sur-

ance addresses unpredicta ble losses.

2 MAINTENANCE AND REPAIR

[3] Pursuant to the Act, condominiums and unit owners have speci fic

duties to conduct maintenance and repair t hroughout a plan of condo-

minium.5 That s aid, condominium legislation only paints a parti al pic-

ture, the portrait fin ished by reference to a condominium’s applicable

declaration. The courts have held that underst anding proper main-

tenance and repair duties in any condominium setting also require s

a careful review of a condominium’s governing documents.6 Once in

focus, such a picture may be likened to an accordion, wit h shifting

legal responsibilities e ver expanding or contracting, depending on the

facts.

[4] Therefore, the first step is reference to the Act. Starting with

section 17(2), a condominium is tasked with the overall duty to con-

trol, manage, and administer the common elements forming part of

the plan of condominium.7 In keeping with section 27(1) of the Act,

such duties are fulfilled by a condomin ium’s board of directors.8 In

turn, section 89 provides increasing focus, outlining st atutory repair

obligations, stating:

Repair

89 (1) Subject to sections 91 and 123, the corporat ion shall repair t he

units and common element s after damage.9

[5] Regrettably, the Condominium Act, 1998, does not have a current

definition of “repair.” The second step is reference to section 90 of the

Act, which, in turn, cha rts the obligation to maintai n, stating:

4 Ibid, s 99.

5 Condo Act , above note 1.

6 Chai v York Condominium Corp No 325, 2009 Cars wellOnt 8984 at para 31

(ONS C).

7 Condo Act , above note 1, s 17(2); Toronto Common Eleme nt Condominium Corp No

1508 v William Stasyna, 2012 ONSC 1504 at para 3 0.

8 Condo Act , above note 1, s 27(1); Joan MacDonald v Wentworth Cond ominium

Corp No 96, 2020 ONCAT 14 at para 67.

9 Condo Act , above note 1, s 89(1).

CONDOMINIUM LAW IN ONTAR IO

246

Maintenance

90 (1) Subject to section 91, the corporation shall m aintain the com-

mon elements and each owne r shall mainta in the owner’s unit.

Normal repairs included

(2) The obligation to maintain includes the oblig ation to repair after

normal wear and t ear but does not include the obligation to repai r

after damage.10

[6] Regrettably, no crisp definition of “mainten ance” legislatively exist s

either, with guidance only provided wit h the statutory caveat that it

includes “normal wear and tear,” yet excludes “damage.”11 Combined,

these default provisions of the Act, at fir st instance, leave the duty to

repair all common elements and units with the condominium corpor-

ation. In turn, mainten ance of the common elements is left to a con-

dominium, with unit ma intenance left to a unit owner. As mentioned,

the Act is only the start ing point to determine maintenance and repair

responsibilities.

A Insurable Event

[7] First, to draw upon the accordion analogy, the first draw of the in-

strument is the need for repairs a rising from unpredictable losses, for

example from a flood, tempest, or act of God. Such losses, rather, are

protected via a condominium’s insurance policy against major perils,

found in section 99 of the Act.12 As will be descr ibed, jurisprudence

has held that maintenance and repair duties do not apply to fortuitous

or insurable events.13 When such unpredictable events occur, sections

89 and 90 give way to the insura nce provisions of the Condominium Act,

1998, found in sect ion 99.

10 Ibid, ss 90(1)–(2).

11 Metropolitan Toronto Condominium Corp No 590 v The Registe red Owners and

Mortgagees of Metropolitan Toronto Condominium Corp No 590, 2020 ONCA 471

at para 20 [MET 59 0].

12 Condo Act, above note 1, s 99.

13 Ottawa-Carleton Standard Condo minium Corp 687 v ING Novex Insurance Co of

Canada, 2009 ONCA 904 at paras 2 0–21 [ING Nove x].