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Condominiums - General. Kikites v. York Condominium Corporation No. 382
In Kikites v. York Condominium Corporation No. 382 (Ont CA, 2023) the Court of Appeal considered an appeal from an application against the condo corporation (only, no neighbours where named as parties) [under s.134 (compliance orders) and s.135 (oppression remedy)] of the Condominium Act, 1998 here involving noise complaints.
The appellant had advocated [para 15 and 41] that the corporation "install a raised and padded floor" in the upstairs unit to mitigate noise, which gave rise to this basic remedial jurisdictional issue:[43] The appellant also submits that the application judge erred in concluding that he could not make an order for the renovation or remediation of Ms. Ceronja’s unit because she had not been made a party to the proceedings. I do not accept this submission.
[44] Again, this goes back to the heart of the matter before the application judge. The appellant sought redress against the Corporation through the oppression remedy. Although Ms. Ceronja was examined as a non-party, she did not participate in the application.
[45] The trial judge thoroughly addressed this issue in paras. 20-22 of his reasons:20 ... From an engineering point of view that may well be a remedy, but from a legal point of view it is a problematic suggestion. While the condominium rules provide that each unit owner deserves quiet enjoyment of their property, they also provide limitations to the condominium corporation's authority.
21 Specifically, the corporation has ownership and control over the common elements and what is usually called the 'envelope' of each unit, but it has no right in or authority over the interior of any privately owned unit. The Respondent is not in a position to renovate Ms. Ceronja's unit and install new flooring. If that were to be the remedy, Ms. Ceronja would have had to be a party to the Application. While I understand why the Applicant may not have been enthusiastic about drawing Ms. Ceronja into this legal dispute, and I would not want to hazard a guess as to what would have been the result had he done so, the fact is that at present the court is left with no remedy for his complaint.
22 The condominium corporation - the one and only Respondent before me - has done what it could and has not been oppressive in its conduct. It is not in a position, and cannot be expected, to either do internal renovations to another unit owner's unit. And given the conflicting sound engineering evidence and the fact that the noise is non-bothersome all day long, the Respondent is not in a position to compel another unit owner to renovate her unit. In any case, the Court certainly would not be in a position to order such a remedy without fulsome participation and legal submissions from that unit owner. [46] I see no error in the application judge’s approach.
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