Condominium Corporation No, 2019 ABQB 967

Court of Queen’s Bench of Alberta Citation: Condominium Corporation No 0613837 v Tien Ngoc Ho, 2019 ABQB 967 Date: 20191217 Docket: 1901 12079 Registry: Calgary Between: Condominium Corporation No. 0613837 Applicant - and - Tien Ngoc Ho, Tan Ho and Cuc Kim Thi Nguyen Respondents _______________________________________________________ Endorsement of J.R. Farrington , Master in Chambers _______________________________________________________ [ 1 ] Some disputes can be resolved in a morning chambers application. Some cannot.

Unfortunately, this is a matter that cannot be fairly resolved based upon affidavit evidence alone, particularly when there has not been any questioning on the affidavits. [ 2 ] The applicant condominium corporation is responsible for managing a complex in which the respondents own a unit. On May 30, 2018 water leaked from a unit in close proximity to the unit owned by the respondents and it damaged their unit. [ 3 ] The applicant says that it provided appropriate insurance coverage pursuant to section 47(1) (

a) of the Condominium Property Act , RSA 2000, c C-22 and section 61(1) (

i) of the Condominium Property Regulation , Alta Reg 168/2000 for the escape of

water that was experienced here. It also says that the deductible under such insurance coverage was larger than the amount of the repairs and as such the condominium corporation has dealt with the repairs itself. I heard nothing about any additional insurance coverage that the respondents may have had for damages within their unit so I assume that there was none. [ 4 ] Disputes arose in relation to the repairs. The respondents say that their unit was unlawfully entered.

They also dispute the quality of the work that was performed by the condominium corporation’s contractor. [ 5 ] The applicant says that it gave appropriate notice of all entries, the work was done properly, and while it acknowledges that some work remains outstanding, it says that upon completion of that work, its obligations are fulfilled. [ 6 ] Fundamentally, there are at least three issues that are outstanding. [ 7 ] While both sides agree that more work needs to be done, they disagree on the scope of the remaining work.

The applicant says that $5,945.10 of work (inclusive of GST) needs to be done by its contractor Red Dot Restoration Ltd. The respondents say that further work in the amount of at $10,145.08 needs to be done and they prefer to use SD’s Floorings Ltd. to do the remaining work. The second issue is that the respondents take issue with the quality of the work done to date. The third issue is that the respondents say that they have a claim for damages arising from being unable to rent the unit while it has been under repair since the flooding of May 30, 2018. [ 8 ] The matter is framed as an application pursuant to

section 67 of the Condominium Property Act .

The applicant seeks an order: Directing that: The Condominium Corporation is absolved of any and all responsibility, obligation or liability with respect to damage to the Condominium Unit that resulted from the May 30, 2018 flood; Directing that the Condominium Corporation is not required to retain any party or trade and has no further responsibility or obligation, financial or otherwise, with respect the repair, restoration or rebuild of the Condominium Unit, which includes but is not limited to the work outlined as remaining in the Red Dot Restoration Report of April 23, 2019; OR IN THE ALTERNATIVE... (the alternative relief then describes seeking directions as to carrying out the balance of the work and directions as to cooperation of the respondents and solicitor and client costs among other things) [ 9 ]

Section 67 of the Condominium Property Act provides: 67(1) In this section, (a) “improper conduct” means (

i) non-compliance with this Act, the regulations or the bylaws by a developer, a corporation, an employee of a corporation, a member of a board or an owner, (ii) the conduct of the business affairs of a corporation in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party, (iii) the exercise of the powers of the board in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party, (iii.1) the conduct of an owner that is oppressive or unfairly prejudicial to the corporation, a member of the board or another owner, (iv) the conduct of the business affairs of a developer in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit, or (

v) the exercise of the powers of the board by a developer in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit; (b) “interested party” means an owner, a corporation, a member of the board, a registered mortgagee or any other person who has a registered interest in a unit.

(2) Where on an application by an interested party the Court is satisfied that improper conduct has taken place, the Court may do one or more of the following: (

a) direct that an investigator be appointed to review the improper conduct and report to the Court; (

b) direct that the person carrying on the improper conduct cease carrying on the improper conduct; (

c) give directions as to how matters are to be carried out so that the improper conduct will not reoccur or continue; (

d) if the applicant suffered loss due to the improper conduct, award compensation to the applicant in respect of that loss; (

e) award costs; (

f) give any other directions or make any other order that the Court considers appropriate in the circumstances.

(3) The Court may grant interim relief under subsection (2) pending the final determination of the matter by the Court. [ 10 ] Section 66(4) of the Condominium Property Act says that the Court can direct a trial of an issue and give directions on this type of application. [ 11 ] Reluctantly, I conclude that given the nature of this dispute it cannot be resolved in the current forum in chambers. It requires some form of a trial. I cannot resolve issues as to workmanship quality based upon the limited record before me. Workmanship issues will likely require at least some expert opinion evidence.

I also cannot allocate blame for the communications issues that the parties have experienced based upon the present record before the Court. I also cannot evaluate the sufficiency of the insurance coverage that was provided by the condominium corporation. The regulation requires that the insurance have a “reasonable” deductible.

I have no information on those details and whether an insurer ought to have been doing the work rather than the condominium corporation, and whether things might have turned out differently if that were the case. [ 12 ] Similarly, I cannot evaluate on this record whether the respondents are correct that the work that they claim must be done throughout their unit, or whether the applicant is correct that the only damages suffered are the ones that have been dealt with in the area of the specific water damage. [ 13 ] The primary relief sought by the applicant is to be absolved of any further responsibility in relation to the damage to the unit.

I cannot grant that order based upon this record. The secondary relief sought is some direction with respect to the ongoing conduct of the repairs. Given the communication difficulties to date, and the disagreement over the scope of repairs, I am not prepared to direct that there be further dealings between the parties regarding the repair work. The material shows that they do not work well together. [ 14 ] In the normal course, parties who feel aggrieved, such as the respondents here, must advance and prove their claim with an action properly brought and proven against the alleged wrongdoer.

Procedurally, that is what must happen here. I can relax procedural norms in some respects but I cannot ignore them. [ 15 ] There is no reason that traditional legal concepts and procedures cannot be applied to this dispute. The respondents say that the applicant had a duty to complete the repairs properly and that it failed to do so. The applicant says that it did everything that it was obliged to do. [ 16 ] Parties often seek to use

section 67 of the Condominium Property Act as a “catch all”

section to enforce reasonable behaviour. I touched on that issue in The Owners Condominium Corporation No. 1710419 v. Condominium Corporation No. 1710627 , 2019 ABQB 655 as did Burrows, J. in Owners: Condominium Plan No 7921815 (Pepperwood Village) v MacMillan , 2019 ABQB 642 . [ 17 ] Section 66(4) of the Condominium Property Act contemplates the direction of a trial of an issue in appropriate cases. That is all that I can really do here. Moving forward, I direct: a.

The applicant must pay the sum of $5,945.10 to the respondents being the amount which the condominium corporation acknowledges remains as incomplete work pursuant to the Red Dot Restoration Ltd. estimate. b. Upon doing so, the applicant is declared to have prima facie fulfilled its responsibilities in relation to the unit restoration, subject to any successful claim brought against it by the respondents. c. The respondents are at liberty to make any further repairs that they deem necessary, but it will be up to them to do so, and any repairs made will be at the respondents’ own risk. d.

If the respondents feel that they have a claim against the applicant for either additional costs pertaining to the repairs, or the quality of the repairs to date, or for damages such as lost rent arising from the manner in which the repair work was done, or for any other matters arising from the flooding of May 30, 2018, they shall file and serve a statement of their claim in this action within 120 days of the filing of these reasons. Thereafter, the Rules of Court shall apply. e. If the respondents do not file and serve a claim as described in item

d) within the time period in item d), any claims against the applicant for the matters described in item d), or related to the flood of May 30, 2018, are barred. [ 18 ] If a claim is filed, and if the parties agree, I would be prepared to sign a consent order transferring the proceedings to the Provincial Court Civil Division if the only remaining issues are financial issues,

section 67 of the Condominium Property Act is not engaged, and the parties believe that proceeding in that Court would be a more cost-effective way of having a trial of their issues. [ 19 ] Each party shall bear their own costs to date. The applicant asked for conclusive relief in its favour that was unlikely to be granted to it given the nature of the dispute. The respondents also sought relief in their affidavit that was unlikely to be granted to them in anything other than a trial setting. [ 20 ] I would request that counsel for the applicant draft the order arising from these reasons and submit it to me for signature. Rule 9.4(2)(

c) is waived meaning of course that I will review the order for consistency with these reasons. Heard on the 11 th day of December, 2019. Dated at the City of Calgary, Alberta this 17 th day of December, 2019.

J.R. Farrington M.C.Q.B.A. Appearances: McLeod Law LLP Stephanie Whyte for the Applicant Tien Ngoc Ho, Tan Ho and Cuc Kim Thi Nguyen Self Represent Litigants assisted by Khang Vinh