Window Replacement – Court Confirms That Reasonableness Is The Standard

In the recent case of Berman v. YCC 99, the owner claimed that the condominium corporation’s failure to address his window complaints amounted to oppression. The Court described the circumstances as follows:

[The owner] had a drafty window that deteriorated over time, might have leaked at some points, and had peeling paint. The temperature in his bedroom was 19 or 19.5 degrees C when the living room was 21. He felt he needed and was entitled to a new window.

The Court dismissed the owner’s claim, because the Court felt that the condominium corporation’s efforts were reasonable.  Here’s what the Court said:

The condominium corporation does not deny its obligation to replace windows that need replacement. But it has 160 units. The building is 50 years old. Everyone wants new windows. The condominium corporation says it replaces the windows as needed. It says that it replaces windows in priority depending on the amount of age and wear. It told Mr. Berman in February 2020 that his window was in the budget for replacement in 2021. Nevertheless, Mr. Berman sued in November, 2020. The window was replaced in March 2021 as promised.

…

The condominium corporation has an economically responsible and sensible window replacement policy. It inspected Mr. Berman’s window multiple times over the years. It did not ignore him or his unit. It replaced his bathroom window when it needed replacement. It re-caulked a skylight when it needed to be re-caulked. And it re-caulked the bedroom window twice when it needed to be re-caulked.

Mr. Berman cannot show that the corporation behaved unreasonably let alone oppressively. He has no objective evidence that his window failed or needed replacement before it was replaced. Moreover, having a bedroom a degree or two cooler than a living room is not a sign to me that a window has failed or needs replacement. The number of external walls in a room and any number of other factors may affect the ambient heat room to room. It is an inconvenience perhaps that could suggest one needs to turn up the heat a degree on going to bed or put an extra blanket on the bed.

The bottom line ruling of the Court was that condominium corporations must meet a standard of reasonableness – not necessarily perfection. [I hasten to add that this is in keeping with Section 37(1)(b) of the Condominium Act, which says that condominium directors and officers must “exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances”.]

What may be considered reasonable will depend on all of the circumstances of each case, including the following:

• The overall nature of the condominium community, including the economic standard of the community.
• The seriousness of the particular maintenance or repair issue.
• The estimated cost of the required “fix”.
• The timing of other planned work, such as planned replacement of the particular item.

In most cases, Directors and Managers can trust their instincts about what is and is not reasonable. However, sometimes it may be a challenge to decide what is “reasonable”. When in doubt, my recommendations are as follows:

1. Consider obtaining advice or guidance from an expert; someone who has the expertise to make a reliable recommendation. Section 37(3) of the Condominium Act essentially says that you can’t be faulted for following the advice of an expert. Depending upon the circumstances, a suitable expert might be an engineer, an architect, an experienced contractor or the property manager.
2. If still in doubt: In many cases, you may decide that it is safest to satisfy the owner’s request rather than risk a legal dispute. That said, I acknowledge that this may sometimes involve an unacceptable “precedent” that may cause other difficulties for the community as a whole (and accordingly may not be reasonable).

Being a condominium Director or Manager can sometimes be an incredible challenge. The good news is that the Courts have consistently said that you are only expected to do what is reasonable and in most cases you will have a good idea of what that means.

Stay safe and stay tuned to Condo Law News to keep up to date on the latest developments on the standard of reasonableness.