Lauder v Owners: Condominium Plan No 932, 2021 ABQB 540

Court of Queen’s Bench of Alberta Citation: Lauder v Owners: Condominium Plan No 932 1565 (Grand Carlisle), 2021 ABQB 540 Date: 20210719 Docket: 1803 13413 Registry: Edmonton Between: Mary Jo Lauder Applicant - and - The Owners: Condominium Plan No. 932 1565 (o/a Grand Carlisle) Respondent _______________________________________________________ Endorsement of A.R. Robertson , Q.C., Master in Chambers _______________________________________________________ Introduction [ 1 ] The respondent condominium corporation has filed an appeal from my decision given February 24, 2021, reported at 2021 ABQB 145 .

I had directed that the condominium corporation replace a specific window on the east wall of the apartment style condominium building. I later made an award as to costs, and I presume that is also part of the appeal. [ 2 ] The appeal has been scheduled to be heard on October 15, 2021. [ 3 ] The condominium corporation asks that I stay enforcement of the order pending the hearing of the appeal. [ 4 ] Normally, I have granted stays of enforcement pending appeal only for a short period of time, to allow for the application to be brought before a Justice in chambers.

The test for granting such a stay is a tripartite test, and the first question to be asked is whether there is a serious issue on appeal. That requires a master to conclude that the decision that they have granted might be wrong. Since there

is an obvious reasonable apprehension of bias in considering that point, I have usually granted only short-term stays so that the application may be brought before one who is not likely to have any bias, being a Justice. [ 5 ] I raised that concern here, but the parties have asked that I consider this application. As is clear from my initial decision, the facts overall are not simple or straight-forward, and I am already familiar with the extensive evidence. [ 6 ] I have now read the written submissions of both counsel for the condominium corporation and Ms.

Lauder, and reviewed my own decision from five months ago. [ 7 ] The three parts of the test that must be satisfied are these, as enunciated by the Court of Appeal in DBD Construction Ltd v Tenfold Contracting Ltd , 2015 ABCA 303 : (

a) there must be a serious issue on appeal; (

b) there must be irreparable harm to the applicant (that is, the appellant), if the stay is not granted; and (

c) the balance of convenience must weigh in favour of the applicant. [ 8 ] I have concerns about whether there is a serious issue on appeal. The argument is that I did not take into account evidence that on November 29 th 2017 the engineer who had specified the repairs and overseen the repair work had provided a report that said that he had inspected the unit in question on that day. He said that the renovated work such as drywall and floor damage repair had been done properly by the general contractor. He said that Ms. Lauder had expressed her satisfaction with the quality of work done at the final stage.

That clearly referred to the work done on the drywall and floors. [ 9 ] He then went on to say that, The east window was also inspected and found to be well caulked for the 2017/2018 winter. It is expected that the window will withstand the winter conditions of 2018/2019.

The occupier of the unit has been instructed to report any problem with the window through the appropriate channel to Delyte Engineering Ltd while [the general contractor] has agreed to do any repair for free until the spring or summer of 2019 when it is expected all windows on the east side of the building will be replaced. [ 10 ] I note that this report does not state that the engineer actually inspected the window that day. The report leaves that impression, and the report from a few weeks earlier (November 8) makes it clear that the window was not properly inspected then nor was it tested for leaks.

The generous reading of the November 29 report is that the window was inspected then “and found to be well caulked”. [ 11 ] The application was heard by me in early 2021 – years after the forecast in the engineer’s November 2017 report, and I had asked both counsel if there was any current evidence of the status of the leaks. I was told there was not. [ 12 ] Accordingly, I relied on the most recent evidence that had been presented, which was Ms. Lauder’s affidavit sworn in June, 2018 which I quoted at paragraph 188 of my decision.

She stated that there is a half inch gap between the frame and the casement and “the window still leaks, fogs up, and I can feel cold air coming in through the gaps.” [ 13 ] Her affidavit went on to discuss the fact that all the windows were supposed to have been replaced, and they were not.

The evidence clearly sets out that both the window inspector/supplier Perma Seal Windows and Doors Ltd and the engineer had recommended that all windows be replaced, that was the specification directed to the general contractor, but nonetheless the east window in question was not replaced. [ 14 ] The Perma Seal report made it clear that the windows had not been installed properly in the first place and they had bowed. [ 15 ] The engineer has now inspected the window (not tested it) since my decision was released and he concluded that it is good - not just until 2019 (long passed) but until 2024.

He provides no explanation at all as to why the window that was recommended and specified to be replaced in 2017 was not replaced in 2017 (or even later); he gives no indication that he has actually tested it (this is a ground floor unit so holding a water hose pointed over the window for an extended period of time to do a leak test would not be a major undertaking); and he says nothing in response to Ms.

Lauder’s assertion in her 2018 affidavit about the continued leaking, the gap, and the draft. [ 16 ] There is no evidence from Perma Seal either to explain how their recommendation might have been changed or that their recommendation was simply ignored. [ 17 ] However, for reasons set out above perhaps my view of the facts is somehow biased, so for the sake of this application I will assume that there is a serious issue on appeal. [ 18 ] Of greater difficulty for the condominium corporation is showing how there would be irreparable harm in replacing the window now instead of in 2024, when there is an indication that it is to be replaced.

The window is already 28 years old, it was installed incorrectly, it was bowed on installation, and the owner of the unit says it still leaks, and it causes drafts. [ 19 ] Can it fairly be said that replacing it in 2021 instead of 2024 would cause “irreparable harm”?

The condominium corporation submits that it would be cheaper to replace all of the windows on the east wall at once, although no detail is given as to the increased amount that would be incurred replacing only the one window, and of course one solution might be to replace all of them now if that is a serious concern. [ 20 ] Given that their replacement was recommended in 2017 – to be done then – and the engineer, having made that recommendation, then later apparently approved (with no explanation in the evidence) delaying the replacement until 2019, and has now

apparently approved delaying the replacement until 2024, it is fair to say that the windows clearly need replacement soon if not now, and it is just a question of when the work should be done. Taking into account Ms. Lauder’s evidence as to the gap, the leaks and the drafts, I cannot conclude that requiring that her window be replaced now can fairly be said to cause “irreparable harm” to the condominium corporation. [ 21 ] Similarly, the balance of convenience favours Ms. Lauder. The evidence has not been that the windows leaked every time it rained, but they leaked when there was a heavy rain.

The weather recently has been quite dry, but if there is a heavy rain before October and Ms. Lauder suffers further interior damage, that will result in further inconvenience and aggravation. Replacing them in November could be problematic. [ 22 ] Accordingly, the application for a stay of enforcement is denied. [ 23 ] Costs of this application are referred to the Justice hearing the appeal. Submissions made entirely in writing. Dated at the City of Edmonton, Alberta this 16 th day of July, 2021. A.R. Robertson, Q.C. M.C.C.Q.B.A.

Appearances: Roberto Noce, Q.C. and Michael Gibson Miller Thompson LLP for the Applicant Todd A. Shipley Reynolds, Mirth, Richards & Farmer LLP for the Respondent