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CITATION: Wentworth Condominium Corporation No.
198 v. McMahon, 2009 ONCA 870 |
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DATE: 20091209 |
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DOCKET: C50328 |
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COURT OF APPEAL FOR ONTARIO |
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Goudge, MacPherson and Blair JJ.A. |
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BETWEEN: |
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Wentworth Condominium Corporation No. 198 |
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Applicant (Appellant) |
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and |
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Jim McMahon |
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Respondent (Respondent in Appeal) |
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Erik Savas, for the appellant |
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Harvin Pitch and Daniel Resnick, for the respondent |
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Heard: November 10, 2009 |
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On appeal from the judgment of Justice J.R. Henderson of the
Superior Court of Justice dated March 10, 2009. |
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MacPherson J.A.: |
A. INTRODUCTION
[1] The essential feature of a
condominium corporation is its mix of private residential units and common
space. In the Condominium Act, S.O. 1998, c. 19, s. 1(1), the
common space is called “common elements” which means “all the property except
the units”.
[2] Typically, the common
elements of a condominium corporation are divided into two categories – areas
which can be used by all of the owners (for example, lobbies, driveways, garages
and guest facilities) and areas reserved for the use of only one owner (for
example, the patio or lawn area immediately contiguous to a unit).
[3] Section 98(1) of the
Condominium Act requires that an owner obtain the approval of the
condominium corporation’s board of directors if the owner seeks to “make an
addition, alteration or improvement to the common elements” of the corporation.
The respondent, Jim McMahon (“McMahon”), the owner of a unit in the appellant
condominium corporation, installed a hot tub on his backyard patio. He did not
obtain the approval of the appellant’s board. The appellant brought an
application seeking the removal of the hot tub.
[4] The application judge agreed
with McMahon. Justice Henderson concluded that a hot tub was not an addition,
alteration or improvement within the meaning of s. 98(1) of the Condominium
Act. The correctness of this interpretation is the principal issue posed by
this appeal.
B. FACTS
(1) The parties and events
[5] The appellant, Wentworth
Condominium Corporation No. 198, is a condominium corporation located in
Waterdown and is comprised of 31 town-house style residential condominium
units.
[6] The respondent, Jim McMahon,
is a 73-year-old retiree who has owned unit 27 since 2001.
[7] Each unit in the condominium
complex contains a back yard that forms part of the common elements of the
corporation. Each owner has exclusive use of their common element back
yard.
[8] In late 2007, McMahon
applied for approval from the board of directors to install a hot tub on his
back patio. The board did not grant the approval.
[9] On December 7, 2007, McMahon
installed a hot tub on the back patio. The hot tub is six feet wide, seven feet
long and four feet high. It is a one-piece unit that weighs about 300 lbs.
without any water in it. It was installed by two delivery men. It is filled by
a garden hose and holds 1000 litres of water weighing 1000 kilograms. The hot
tub occupies about 25 per cent of the common element back yard of unit 27.
[10] The hot tub is hard-wired to
unit 27. A three-wire electrical cable was installed that runs from the
electrical panel located in McMahon’s basement and outside to the hot tub, where
it is connected to the hot tub with three screws.
(2) The application
[11] The condominium corporation made
an application seeking, inter alia, the permanent removal of the hot
tub. The application judge considered the matter in the context of s. 98(1) of
the Condominium Act. He reviewed relevant case law and dictionary
definitions of “add”, “alter” and “improve”. This led him to define the pivotal
words of s. 98(1) in this fashion:
Therefore, I find that the word “addition” means
something that is joined or connected to a structure, and the word “alteration”
means something that changes the structure.
I find that the word “improvement” means the
betterment of the property or enhancement of the value of the property. I also
accept that an “improvement” refers to an improvement or betterment of the
property. That is, to be an improvement there must be an increase in the
value of the property. If the item increases the enjoyment of the property, but
does not increase the value of the property, I find that the item is not an
improvement. [Emphasis in original.]
[12] Applying these definitions to
McMahon’s hot tub, the application judge reached these conclusions:
The hot tub is not an addition as it is not
something that sensibly can be seen as being joined to or connected to the
structure. It is connected by an electrical cable, but the purpose of the
electrical cable is to supply power to the hot tub, not to fix the hot tub to
the structure. Furthermore, even though it may take a half-hour and two men to
move, the hot tub is still designed to be removed from the property. It is not
a permanent fixture on the property.
The hot tub is not an alteration as it does not
change the structure of the property. The hot tub may alter the landscape, but
any such alteration does not cause any permanent change to the structure.
The hot tub is not an improvement as it does not
increase the value of the condominium unit. It is not a fixture that is so
attached to the property that it becomes a part of the property. Thus, it
cannot increase the value of the property.
[13] Accordingly, the application
judge concluded that “McMahon does not require the approval of the board to
place the hot tub in the exclusive use common element area on his patio.” He
dismissed the condominium corporation’s application.
[14] The condominium corporation
appeals.
C. ISSUES
[15] The appellant raises three
issues:
(1) Did the application judge err in
his interpretation of s. 98(1) of the Condominium Act?
(2) Did the application judge err by
not determining that the installation of the hot tub contravened s. 8(d) of the
corporation’s Declaration?
(3) Did the application judge err by
not determining that the installation of the hot tub contravened ss. 116 and 117
of the Condominium Act?
D. ANALYSIS
(1) Section 98(1) of the Condominium Act
[16] This is the principal issue in
this appeal.
[17] Section 98(1) of the
Condominium Act provides:
98.(1) An owner may make an addition, alteration or
improvement to the common elements that is not contrary to this Act or the
declaration if,
(a) the board, by
resolution, has approved the proposed addition, alteration or improvement;….
[18] The application judge concluded
that the hot tub was not an addition, alteration or improvement within the
meaning of this section. The appellant contends that his interpretation is
flawed for three reasons.
[19] First, the appellant submits
that the application judge did not apply the grammatical and ordinary sense of
the words “addition”, “alteration” and “improvement”.
[20] I disagree. The application
judge’s starting point for determining the meaning of these words was the
dictionary. In my view, this is precisely where he should have started.
Indeed, this is where Cory J.A. started his analysis when he had to define the
words “maintenance” and “repair” in a previous version of the Condominium
Act: see York Condominium Corp. No. 59 v. York Condominium Corp. No.
87 (1983), 42 O.R.
(2d) 337 (C.A.), at p. 341.
[21] Second, the appellant contends
that the words “addition”, “alteration” and “improvement”, at least as they are
used in s. 98(1) of the Act, have a shared or common meaning – namely, a
change of the original condition of some physical thing or matter. As expressed
in its factum: “If one adds some thing to another thing or matter, the
pre-existing condition of the latter is changed. If one alters some thing or
matter, the pre-existing condition of the latter is changed. If one improves
some thing or matter, the pre-existing condition of the latter is changed.” The
application judge, says the appellant, should have concluded that the
legislature likely intended by its use of the words “addition”, “alteration” and
“improvement” to signal that any act of an owner that changes the pre-existing
condition of the common elements of the condominium property requires the
consent of the board of directors.
[22] The application judge rejected
this submission, saying that “each of the three words has a separate and
distinct meaning.” I agree. In my view, the differences are readily apparent
from the dictionary definitions cited by the application judge. An addition
builds on or supplements what is already there. An alteration can add to or
subtract from what is already there. And an improvement introduces a
qualitative factor into the analysis, one not required by the words “addition”
and “alteration”.
[23] There is another and, in my
view, crucial flaw in the appellant’s attempt to lump together the three words
in s. 98(1) of the Act. The equation of “addition”, “alteration” and
“improvement” with “change” creates a result that is far too broad. Barbecues,
picnic tables, small inflatable swimming pools, children’s toys and thousands of
other ordinary articles that are regularly found on backyard patios would
constitute “changes” to the common elements of the condominium property under
the appellant’s definition because they would “make different the pre-existing
condition of the common elements”.
[24] Indeed the barbecue analogy
relied on by the respondent strikes me as particularly apt. Both the barbecue
and the hot tub are placed somewhere on the patio stones. Both are connected in
a limited sense to the condominium unit, the barbecue by a gas line and the hot
tub by an electrical cable. Yet, as the application judge observed, the
condominium corporation has not required any owner to seek approval to install a
barbecue on the patio common elements of the condominium property.
[25] The appellant’s third submission
is that the application judge did not examine the Condominium Act as a
whole. If he had done this, says the appellant, he would have recognized that
the Act focuses on the integrity and condition of the common elements and that
these have primacy over what the appellant calls “the whims of the individual
owners to use them or change them as they might desire.”
[26] I do not accept this
submission. The application judge did not limit his analysis to just the
dictionary definitions of the words “addition”, “alteration” and “improvement”.
Rather, he stated that “I must expand on each definition because each of the
three key words in s. 98 must be interpreted in the context of the condominium
property.”
[27] It is true that the integrity of
the common elements of a condominium complex is an important feature of the
structure and content of the Condominium Act. However, an equally
important feature of the Act is the rights of the owners. This twin
focus of the Act was well-described by Finlayson J.A. of this court in
Re Carleton Condominium Corp. No. 279 and Rochon et al. reflex, (1987), 59 O.R. (2d) 545 at 549-50:
The Condominium Act was passed to permit
individuals to be owners of the freehold estate in residential units in a
building as opposed to tenants in an apartment building. This means that they
have disposable real property which is an investment and not simply an expense.
Its purchase can be financed by mortgage or lien in the same manner as any piece
of real estate. The unit owners are tenants in common and have all the rights
of any owner of land within the description of their unit (s. 1(1)(q) and
(z)). By the nature of the building, there are certain “common elements”
which are defined by s. 1(1)(g) as “all the property except the units”.
It is therefore necessary that there be detailed agreements with respect to the
maintenance, operation and occupation of these common elements so that the
responsibilities and privileges of each unit owner are clearly established.
[28] In my view, the application
judge’s interpretation of s. 98(1) of the Act strikes an appropriate
balance between the rights of individual owners and the rights of the owners
collectively speaking through their board of directors. The appellant’s
definition of the three key words of s. 98(1), anchored in the shared thread of
“change” is, as discussed above, both semantically unpersuasive and overly
broad. The application judge’s interpretation, linking “addition” and
“alteration” to connections or changes to the structure of the condominium unit
and linking “improvement” to bettering the value, not just the enjoyment, of the
property, strikes me as a balanced interpretation of the provision consistent
with this court’s description of the Act in Rochon.
[29] That is not to say that the
application judge’s definition of “addition”, alteration” and “improvement” can
resolve every case where a s. 98(1) issue arises. Indeed, the application judge
recognized this: “I note that it is possible for a large freestanding item to
become an addition, alteration or improvement if it were so large and so
difficult to move that it becomes a permanent part of the property, but that is
not the case here.”
[30] In my view, the application
judge’s definitions of the three key words in s. 98(1) of the Act provide
a valuable starting point that should focus the inquiry and resolve most cases.
It resolves this case – both visually and legally, the hot tub is similar to the
barbecue and picnic table. If the approval of the board of directors is not
required for the barbecue and picnic table, then it should not be required for
the hot tub.
[31] However, there will be cases
where the application judge’s definition will not work. The size and difficulty
of moving an object, as mentioned by the application judge, might lead to a
different result. To this I would add the possibility that a qualitative
assessment of an object an owner might want to place on the patio might also
lead to a different result – for example, an owner could not hope to store
scores of disused and ugly tires, or ugly rusting equipment or vehicles, or a
giant ugly billboard of the New York Yankees World Series team on his patio
without obtaining the approval of the board of directors of the condominium
corporation.
[32] In the end, each case will have
to be decided on its own facts. For now, though, I would say that the
application judge’s interpretation of the key words of s. 98(1) of the
Condominium Act is a good one. It will resolve most, but not all,
cases. It resolves this case.
(2) Section 8(d) of the condominium corporation’s
Declaration
[33] The appellant contends that the
application judge erred in not finding that the installation of the hot tub was
contrary to s. 8(d) of the corporation’s Declaration, which provides:
8(d) No owner shall make any structural
change or alteration in or to his unit including the removal and installation of
toilet, bath tub, wash basin, sink, heating, air condition, plumbing or
electrical installation contained in or part or his unit; or alter the exterior
design or colour of part of his unit where such change, alteration, decoration
or painting is normally visible from the exterior thereof or make any change to
an installation upon the common elements, or maintain, decorate, alter or repair
any part of the common elements, except for the maintenance of those parts of
the common elements which he has the duty to maintain without the prior consent
in writing of the Board, which may attach any reasonable condition to its
consent or which may in its discretion withhold its consent.
[34] The appellant submits that the
installation of the hot tub was contrary to s. 8(d) of the Declaration in two
respects: first, it caused an alteration of an electrical installation contained
in McMahon’s unit by hard-wiring the hot tub to the electrical panel in his
basement; and second, it caused an alteration to his common element back
yard.
[35] The application judge did not
discuss this issue in his reasons. I suspect that is because the first argument
was almost invisible at the hearing (it appears to have been mentioned only in a
footnote in paragraph 71 of the appellant’s factum) and because the second
issue, anchored in the word “alteration”, traversed the same ground as the
Condominium Act s. 98(1) issue.
[36] In any event, I do not accept
the appellant’s submissions on this issue. There is insufficient evidence to
determine whether the very minor electrical adjustment necessary to hook up the
hot tub amounts to a “structural change or alteration” of the electrical system
in the unit. Moreover, the evidence was that barbecues are permitted, without
the approval of the board of directors, in the condominium complex. Some of the
barbecues would require minor adjustments to the unit to connect the gas line.
I do not see a difference between this permitted alteration and the alteration
required to hook up the hot tub. Finally, with respect to the appellant’s
second argument on this issue, I see no reason to interpret the phrase “alter
…any part of the common elements” in s. 8(d) of the Declaration different from
the phrase “alteration …to the common elements” in s. 98(1) of the
Condominium Act.
[37] I make one other comment on this
issue. There is, potentially, a different route open to a condominium
corporation to make some of the difficult balancing choices in a condominium
complex. Section 58(1) of the Condominium Act provides:
58.(1) The board may make, amend or repeal rules
respecting the use of common elements and units to,
(a) promote the safety,
security or welfare of the owners and of the property and assets of the
corporation; or
(b) prevent unreasonable
interference with the use and enjoyment of the common elements, the units or the
assets of the corporation.
[38] Acting pursuant to this
provision, the appellant has promulgated Rules and Regulations respecting the
Units. These rules, in their current form, prohibit absolutely, or permit
but only with the approval of the board of directors, the placement of a wide
variety of items on the common elements of the condominium complex – debris,
refuse or garbage; coal or any combustible or offensive goods; motor vehicles
(other than a private passenger automobile or station wagon), camper vans,
trailers, boats, snowmobiles, mechanical toboggans, machinery or equipment of
any kind; buildings, structures, tents or trailers; bicycles, tricycles,
barbecues and toys when not in use; animals, livestock, fowl, birds, insects,
reptiles or pets of any kind; fencing or landscaping. Without passing judgment
on whether the prohibition of hot tubs from the common elements of a condominium
complex would, if challenged, be held to come within s. 58(1) of the Act,
I simply observe that s. 58(1) and a board of director’s rule-making power
provide a potential route to strike the desired balance with respect to usage of
the common elements of a condominium complex.
(3) Sections 116 and 117 of the Condominium
Act
[39] The appellant contends that the
application judge erred by not concluding that the installation of the hot tub
contravened ss. 116 and 117 of the Condominium Act, which provide:
116. An owner may make reasonable use of the common
elements subject to this Act, the declaration, the by-laws and the rules.
117. No person shall permit a condition to exist or
carry on an activity in a unit or in the common elements if the condition or
activity is likely to damage the property or cause injury to an individual.
[40] The appellant submits that the
installation of McMahon’s hot tub was an unreasonable use of the common elements
because there were no other hot tubs in the condominium complex. The appellant
also submits that the installation was a dangerous activity because the hot tub
was hard-wired to McMahon’s electrical panel by a person who was not an
electrician.
[41] The application judge did not
discuss these submissions in his reasons. Again, I suspect that is because the
submissions were almost invisible at the hearing, being raised in a single
paragraph with one footnote containing unsubstantiated factual assertions.
[42] In any event, I do not accept
the appellant’s submissions on this issue. If it is not unreasonable to have
barbecues or patio furniture on owners’ exclusive use common elements, then
there is no reason why a hot tub should be regarded as unreasonable. There is
also nothing in the record to support a contention that the installation of
McMahon’s hot tub created a dangerous condition or activity.
E. DISPOSITION
[43] I would dismiss the appeal.
[44] The parties agreed that the
question of costs should be left until the result of the appeal was known. The
respondent shall file his costs submission within seven days of the release of
these reasons. The appellant shall file its response within a further seven
days.
RELEASED: December 9, 2009
“J.C. MacPherson J.A.”
“I agree S.T. Goudge J.A.”
“I agree R.A. Blair”
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