Ontario Inc. V. 1 King West Inc., 2012 ONCA 249

In this case, the Court interpreted s. 23(1) of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”), which states that a condominium corporation may bring an action for damages in respect to common elements of that condominium. The significant issue on appeal turned on the use of the word “may;” whether it merely permitted the condominium corporation to bring an action or whether it bestows exclusive authority to the corporation to pursue such an action. Blair J.A. found that this provision of the Act does not take away a right or deny standing to individual unit owners. It grants a right that condominium corporations would not otherwise have (the standing but not the exclusive standing) to sue on behalf of unit owners in relation to the common elements of the condominium. 

The appellant purchased eight units from the respondent developer, and had four units customized as the appellant’s head office. Though the doors, walls, and windows were customized, they still formed a part of the common elements of the condominium corporation. The appellant’s complaint centred on the alleged inability of the building’s HVAC system to respond to the special heating and cooling demands of the new configurations in the four head office units. HVAC systems are also part of the common elements of the condominium. The condominium corporation, after the appellant’s individual action had been brought, also commenced an action on behalf of itself and individual owners for common element deficiencies. The appellant did not opt out of this suit. 

Blair J.A. held that s. 23(1) does not preclude the appellant from advancing its claim under the agreement of purchase of sale in relation to the common elements. He also found that s. 23(4) of the Act, which addresses damages to the corporation on its own behalf, contemplates a potential difference between “corporate” and “individual” damages. Therefore, the appellant, by bringing an individual action and being a part of the corporate action, could collect from both and not be duplicating the damages. If duplication were ever an issue, a remedy of a stay of proceedings could be invoked.

Link to Decision

Megan Strachan

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