Moldy condominium units. Its one thing to discover mold after a water damage incident. But it’s a completely different ball game. For a claim professional, mold claims are one of the trickiest ones to deal with. After all, it is usually awfully cumbersome to determine the time period in which the mold has developed and/or since when the mold issue existed at the location. And as a claim professional, on always look to pass the blame for damages to a third party to recover losses paid. Don’t we love the thought of subrogation!
Anyways, this article is not about an insurance claim. But the guidance provided by the discussed caselaw maybe crucial in determining how courts look at mold claims and who do they hold responsible for mold that developed over a period of time (will be excluded under a property policy though).
In Brasseur v. York, 2019, the Ontario Superior Court of Justice presented an interesting perspective while discussing the issue of the causation of mold and who is responsible for the mold remediation in an old condominium unit.
The facts of the case are as under:
Ms. Helen Brasseur, a 79 years old woman is the registered condo owner since 1978. The building is owned by York Condominium Corporation No. 50 (“YCC 50”). Since 2009, when the exterior windows of the condominium building were replaced, the Brasseurs noticed condensation problems. That led to mould, which led to years whereby the Brasseurs and YCC 50 tried to remediate the problem, that was not remediated until 2018.
Who should pay for the costs of these remediations? Should YCC 50 pay for the cost of this remediation if it fell within its obligations or should Ms. Brasseur pay for it if it was their lifestyle conduct that led to the mould? Even if it was eventually remediated, were the steps taken by YCC 50 reasonable given the delay in addressing the issue?
POSITION OF THE PARTIES
Ms. Helen Brasseur took the position that YCC 50 has breached its duty to maintain and repair the common elements and that its actions were oppressive. YCC 50 denies this and alleges that Ms. Brasseur has breached her duty to maintain and keep in repair her Unit and her lifestyle preferences led to mold development.
Whether a condominium corporation has breached its repair and maintenance obligations is a fact-specific inquiry in the particular circumstances [York Condominium Corporation No. 59 v. York Condominium Corporation No. 87,1983, ONCA]. According to the declaration, the exterior windows, the heating system within the common element ceiling, the ventilation systems and the exterior walls were all part of the common elements. The crucial question was to determine the source of moisture that led mold and source of moisture could vary and may depend upon seasons, building design, etc. Expert opinions presented by both sides were analysed in detail by the court.
Ruling in favor of Ms. Brasseur, Justice S. Nakatsuru, writing for the court stated:
After carefully assessing the evidence, I find that remediation of the mould is the responsibility of YCC 50. I conclude this for the following reasons.
First of all, the problem can be attributed to the common elements. Here the issue is not the narrow question of where the mould was found. For instance, whether it was found on an exterior wall or whether it was on an interior wall. The issue is whether some defect or problem with the common elements contributed to the growth of mould within the Unit such that this triggered the duty to repair. I find that it did as my reasons will show.
Secondly, and this is another way of approaching this issue, I find that the Brasseurs’ conduct, the lifestyle choices that they made, were not likely the cause of the mould problem.
The court further stated that One of the most significant reasons against lifestyle causation is that other units in the building suffered the mould problem.
THE OPPRESSION REMEDY
Section 135 of the Condominium Act allows an owner of a unit to make an application to the Superior Court of Justice for an order prohibiting oppressive conduct by the condominium corporation and/or requiring the payment of compensation. Oppressive conduct is conduct that is coercive, harsh, harmful, or an abuse of power. Unfairly prejudicial conduct is conduct that adversely affects the claimant and treats him or her unfairly or inequitably from others similarly situated. Unfair disregard means to ignore or treat the interests of the complainant as being of no importance. The fundamental issue is whether YCC 50’s conduct amounted to oppression, unfair prejudice, or unfair disregard of her reasonable expectation.
The court, denied this remedy to Ms. Brasseur, and stated, at various paragraphs:
While YCC 50’s response was not a model of responsiveness at all times, I find that Ms. Brasseur has not proven that their conduct amounted to oppression, unfair prejudice, or unfair disregard of the Ms. Brasseur’s interest.
YCC 50 needed time to investigate. It did retain and hire more than one expert. It retained and hired contractors. It met with the Brasseurs. It has ultimately remediated the mould albeit on a without prejudice basis.
That said, of course, I appreciate that things got delayed. But I do not find that YCC 50 was deliberately dragging its feet.
The oppression claim is, therefore, dismissed.
The biggest takeaway from this case, in my opinion is that its not the location but the source of the mold that matters. Further, delay in carrying out the repairs is not prejudicial to the condominium corporation as long as adequate and necessary steps have been taken. Finally, the oppression remedy is not available in such situations.