In Alberta, condo corporations and their boards have an array of legal duties and responsibilities. From a condo owner’s perspective, one of the most important legal duties is the obligation to keep the common property in a state of good and serviceable repair. This ensures that owners can benefit from the condo’s amenities and enjoy the property’s shared spaces.

So, what happens if the condo corporation fails to meet its obligations in this respect? Often, the result is that the owners’ use and enjoyment of the property will be negatively impacted. In addition to being an inconvenience to owners, condo corporations that neglect to maintain the common property in good repair may face liability in nuisance. A recent Alberta Court of King’s Bench case illustrates this potential risk.

What is the Law of Nuisance?

In legal terms, nuisance refers to a substantial and unreasonable interference with a person’s use or enjoyment of land. Nuisance is a broad concept, and many different types of activities can lead to a claim for nuisance. Often, the source of the nuisance is an emanation from an adjacent property, like a sound or a smell.

In most cases, the remedy granted by courts to a nuisance claimant is an injunction, which is an order requiring that the person stop or otherwise remove whatever was causing the nuisance.

Condo Corporations Can Face Liability for Nuisance

A recent decision of the Alberta Court of King’s Bench, Dunn v. Condo Corp No. 042 0105, demonstrates how a condo corporation may face liability for claims of nuisance. In this case, the plaintiff owned a penthouse suite in a condo. The condo’s board of directors decided to repair the roof of the building, as water damage was compromising its structural integrity.

During the construction, the plaintiff rented the condo to a tenant. After construction began, the tenant complained to the plaintiff about disruption from the repair work, including:

• noise;
• windows being boarded up;
• inability to access the balcony; and
• heat.

Acknowledging his tenant’s complaints, the plaintiff agreed to lower the tenant’s rent during the construction period. Subsequently, the plaintiff brought a nuisance claim against the condo corporation, seeking $39,000 in compensation for loss of rent.

Court Describes Two-Part Test for Finding Nuisance

The Court of King’s Bench explained that the governing test for deciding a nuisance claim was set out by the Supreme Court in Antrium Truck Centre Ltd v Ontario (Transportation) (“Antrium”). It involves a two-part test. To support a claim of nuisance, the property interference must be substantial and unreasonable. A substantial interference is non-trivial.

In Antrium, the Court dealt with how reasonableness should be assessed in the context of a construction project favouring the public good. The analysis involves a balancing process considering numerous factors, including:

• the severity of the interference;
• the character of the neighbourhood;
• the sensitivity of the person complaining of nuisance; and
• the frequency and duration of the interference.

Court Applies Two-Part Test in Assessing Nuisance Claim

In Dunn v. Condo Corp No. 042 0105, the Court was satisfied that, based on the accepted evidence, the disturbance caused by the repair work was more than a slight annoyance or a trifling interference. The factors militating in favour of this conclusion included:

• banging, sawing, and foot noise on the roof every day;
• the temperature dropping below 18°C during the winter because the insulation was off the roof;
• debris on the balcony preventing the tenant from standing on it; and
• windows being boarded up, obstructing the view and natural light.

Court Examines Each Source of Interference for Second Part of Test

Having concluded that the interference was non-trivial and thus substantial, the Court turned to the question of whether it was unreasonable. The Court relied on the Supreme Court’s guidance in Antrium, which included the following points:

• to assess unreasonableness, the gravity of the harm must be balanced against the utility of the defendant’s conduct in all the circumstances;
• the focus is on whether the interference suffered by the plaintiff was unreasonable, not whether the conduct of the defendant was unreasonable; and
• the ultimate question is whether it is unreasonable to expect the plaintiff to bear the interference without compensation.

Noise

The test for whether a noise constitutes an unreasonable interference is whether the nature and severity of the noise is such that it wouldn’t be reasonable to expect an ordinary person to tolerate it. The Court found that the test had been met because:

• the board of directors knew that the unit was a construction zone and there would be noise;
• the unit was impacted throughout the year; and
• the construction noise affected the penthouse suite more than other units in the building.

Heat Loss

Regarding the drop in temperature, the defendants argued that the plaintiff had not satisfied the “but for” test as there was no evidence adduced that proved the repair work caused the heat loss. The Court dismissed this argument, saying that the law was not settled on whether the but for test for causation should be required in a claim for nuisance.

Even so, the Court found that the “but for” test was met in this case. There was no indication that heat loss was a problem in the unit before the repair work. Further, the evidence showed that the board was aware that heat loss was a potential issue since the insulation in the roof would be removed during the repair work.

Boarding of Windows and Loss of Balcony

The Court began its analysis of this point by noting that there is no action in nuisance for loss of view. However, this case was distinguishable. The problem was not that the defendant had altered the view. Rather, the problem was that the view was no longer accessible because the tenant could not stand on the balcony or see through the windows.

Based on these factors, the Court concluded that there had been unreasonable interference and that the condo corporation was liable for nuisance.

The Case Received Approval for Appeal

This case recently received approval for appeal to the Alberta Court of Appeal, so this may not be the end of the story. Notably, in granting permission to appeal, the Court of Appeal noted that the trial judge may have misinterpreted the condo’s bylaw, which the board relied upon to defend itself against the nuisance claim.

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