Metropolitan Toronto Condominium Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan Toronto Condominium Corporation No. 590

Parties

Procedural Posture

Civil / Appeal From Application Judge (court of Appeal)

Legal Issues

1. 1 Whether ss.22 and 23 of the Declaration contain an error or inconsistency such that the court may order an amendment under s.109(3) of the Condominium Act
2. 2 Whether responsibility for maintenance and repair of chimney flues (exclusive use common elements) rests with unit owners or the condominium corporation, including repair after normal wear and tear versus repair after damage
3. 3 Appropriate remedial amendment to the Declaration to resolve inconsistency

Ratio Decidendi

The Court of Appeal found that ss.22 and 23 of the Declaration are inconsistent: s.22 imposes on unit owners a duty to maintain exclusive use common elements but does not expressly impose repair after normal wear and tear, while s.23 imposes on the corporation a duty to maintain and repair common elements only 'after damage'; this gap creates an error or inconsistency under s.109(3). The appeal was allowed and the court ordered the Declaration be amended to make clear unit owners are responsible for maintaining and repairing exclusive use common elements, including repair after normal wear and tear, with precise wording to be agreed or determined by the court.

Court Disposition

Appeal allowed in part; paragraph two of the order below set aside; court ordered amendment of the Declaration to resolve inconsistency regarding maintenance and repair of exclusive use common elements

Orders

• Set aside paragraph two of the order of the application judge
• Order amending the Declaration to clarify that unit owners shall maintain and repair any part of the common elements of which they have exclusive use, including the obligation to repair after normal wear and tear, in wording to be agreed by the parties or as further ordered by the court