Owners Held Liable for Water Damage
By Inderpreet Sandhu
In a recent decision from the Ontario Superior Court of Justice, the case of Abeygunasekara v. Peel Condominium Corporation No. 392 (2024 ONSC 606) offers a cautionary tale for condominium owners about the importance of unit maintenance and of understanding their responsibilities under the Condominium Act, 1998.
Background
The applicants, owners of a condominium unit in PCC No. 392, were involved in a legal dispute following an incident in which a toilet in their unit overflowed, resulting in water damage to several other units and common areas. The unit was tenanted at the time.
The cause of the water escape was determined to be a combination of a malfunctioning toilet flapper and a blockage in the toilet bowl. The superintendent, based on his extensive experience, concluded that the overflow occurred because the flapper did not seal properly, allowing water to continuously flow into the bowl. Due to the blockage, the water had nowhere to drain, resulting in flooding. The situation was exacerbated by the toilet’s broken shut-off valve, which made it impossible for the tenants to stop the water flow themselves without the help of the superintendent. The court accepted the superintendent’s explanation as credible and as an explanation to show the cause of the flooding.
The court noted that the toilet and its shut-off valve were part of the unit and, in accordance with the Condominium Act, 1998 and the Corporation’s declaration, the owners’ responsibility to maintain and repair. The owners’ failure to ensure that the toilet was in proper working order and that the shut-off valve was functional constituted an omission leading directly to the damage.
The condominium corporation incurred over $42,000 in repair costs, which fell below its $50,000 insurance deductible. Under the condominium's by-law and section 105 of the Condominium Act, 1998, the owners were responsible for the lesser of the cost to repair the damage and the deductible. When they failed to pay, the corporation registered a lien against their unit.
Legal Issues and Court Findings
The owners challenged the lien on several grounds:
Liability for the damage
Admissibility of the superintendent’s affidavit
Claims of oppressive conduct
Timeliness of the lien registration
The Honourable Justice Rahman dismissed all claims. The court found that the superintendent’s evidence was admissible as lay opinion based on his extensive experience, not requiring expert qualification. The applicants’ failure to maintain the shut-off valve and the presence of a blockage in their toilet constituted acts or omissions that triggered liability.
On the oppression claims, the court found no breach of reasonable expectations. The $50,000 deductible was not proven to be unreasonable, and the damage assessment was supported by detailed contractor invoices. The lien was also registered within the statutory three-month window.
Key Takeaways for Owners
Liability Without Negligence: Owners can be held liable for damage caused from their unit or by their tenants, even if they were not negligent.
Lay Opinion Evidence may be Valid: Experienced building staff may provide admissible opinion evidence based on job experience.
Maintenance Matters: Failing to maintain plumbing fixtures and shut-off valves can lead to significant liability.
Oppression Claims Require Proof: Allegations of oppressive conduct must be backed by evidence of breached expectations and unfair treatment.
Lien Timelines Are Strict: Liens must be registered within three months of default or the courts will not uphold them.
This case underscores the importance of proactive maintenance and a clear understanding of a condominium’s by-laws and the Condominium Act, 1998. Owners should ensure their units are properly maintained and also be aware of their responsibilities to avoid costly legal consequences.