Written by: Tyler Peach, Student-at-Law Background Ms. Aubin owned a residential unit in a large condominium complex in downtown Edmonton. The bedroom of her unit shared a wall with the social lounge of the condominium building. Her unit is the only residential unit neighbouring the lounge. Sound transference through the shared wall interfered with her ability to use her bedroom. She brought her concerns to the Corporation’s board of directors and property manager on numerous occasions on the basis that the noise interrupted her comfort and quiet enjoyment of the property, contrary to the Condominium Corporation’s (the “Corporation”) bylaws. The Corporation took the initial steps of rearranging furniture, changing cleaning hours, and setting an 11PM curfew for parties using the lounge. Ms. Aubin did not feel this adequately addressed her situation and provided the Corporation with an acoustic report indicating the sound barrier was inadequate. However, the Corporation refused to hire their own sound expert to assess the sound barrier. The Chambers Decision Ms. Aubin brought an originating application alleging that the Corporation engaged in improper conduct as defined under s. 67 of the Condominium Property Act (CPA). The Applications Judge found that, while the Corporation had made appropriate adjustments following the initial complaints, the Corporation’s failure to properly investigate the issue was oppressive and unfairly disregarded the interests of Ms. Aubin. This constituted “improper conduct” under s. 67 of the CPA. The Applications Judge directed that the Corporation retain an expert to investigate whether the wall properly diminished the sound from the lounge and if not, provide options to improve the wall to a suitable standard. The Corporation Appeals to the Court of King’s Bench The Corporation appealed the ruling of the Applications Judge to the Court of King’s Bench. The Chambers Judge allowed the appeal and overturned the previous ruling which was in favour of Ms. Aubin. The Chambers Judge found that the Corporation had acted reasonably in the circumstances and took appropriate steps to address Ms. Aubin’s complaints. The Corporation’s further offer to add additional drywall to the lounge side of the wall was also reasonable. According to the Chambers Judge, the situation had to be considered in the context of a large condominium corporation with hundreds of units. Ms. Aubin was not unfairly treated as compared to other owners in the building. Therefore, the Chambers Judge found there had been no improper conduct on the part of the Corporation. The Chambers Judge also noted that where improper conduct has not been established, the court should defer to the decisions of duly elected condominium boards. The Court of Appeal Restores the Ruling of the Applications Judge Ms. Aubin then appealed the Court of King’s Bench decision to the Alberta Court of Appeal. The Court of Appeal addressed 2 main issues: Did the Chambers Judge err in interpreting the unit boundary provision of the condominium plan and the CPA? Did the Chamber Judge err in concluding that the respondent did not engage in improper conduct under the CPA? Common Property Boundaries The Court of Appeal confirmed that section 9(1) of the CPA is the default provision for determining common property boundaries. Section 9(1) states that its terms prevail unless “otherwise stipulated” in the condominium plan. In this case, the condominium plan defined the unit boundaries as “the undecorated interior surface of the unit floor, wall, or ceiling”. The Court of Appeal determined this wording to be substantially different from the wording in s. 9(1) of the CPA which define the unit boundary as the “finishing material” in the interior of the unit. Therefore, the unit boundary for Ms. Aubin was the undecorated surface of the wall which separated her unit from the social lounge. The entirely of the wall is common property and the responsibility of the Corporation aside from any decoration added by Ms. Aubin. The Duty to Investigate and Improper Conduct The two-part test for determining whether a condominium corporation has engaged in improper conduct, is set out in Laasko v Condominium Corporation No 8011365, 2013 ABQB 153: Whether there was a breach of the appellants reasonable expectations and, if so, Whether the respondent’s conduct was oppressive, unfairly prejudicial, or unfairly disregarded the appellant’s interest. On the first point, section 37(1) and (2) of the CPA states, among other things, that the Corporation has a duty to keep common property in a state of good and serviceable repair. The scope of this duty was further explained in Hnatiuk v Condominium Corporation No. 032 2411, 2014 ABQB 22, stating: “the statute and by-law impose not only a duty to maintain, but an obligation to correct deficiencies or, at the very least, to investigate and bring conclusions to a meeting of the owners.” Since the shared wall was common property, the Court of Appeal said it was reasonable for the Ms. Aubin to expect the Corporation to correct the deficiencies or at least carry out an investigation and bring its findings back the complainant and the board. An informal sound transference experiment was not a sufficient investigation. Further, the Corporation’s obligation to properly investigate this issue was triggered by the acoustical analysis conducted by Ms. Aubin’s expert. Their failure to do so was a breach of the owner’s reasonable expectations. Turning to the second point, the Court of Appeal disagreed with the Chamber Judge’s finding that the Corporation did not treat Ms. Aubin inequitably in relation to other unit owners. While she may not have been singled out or treated differently (in other words – treated equally), she was not treated equitably. Ms. Aubin’s concerns were not properly addressed. Her unit was the only one adjoining the lounge, leaving her alone to bear the burden of noise transference – a burden arguably disproportionate enough to constitute unfairness. The order of the Applications Judge was restored. Conclusion Condominium corporations and owners should familiarize themselves with the provisions in their building’s condominium plan. The CPA sets default provisions that pertain to matters like common property boundaries. However, the bylaws and the condominium plan may override those default provisions. Understanding your condominium bylaws and plan is essential to determining what your rights are as an owner or what duties and responsibilities you have as a condominium corporation. Perhaps more importantly, this ruling emphasizes that it may not be enough to treat persons within a condominium community equally, they should be treated equitably. With offices in Edmonton and Calgary, Parlee McLaws LLP represents both owners and condominium corporations in a wide range of condominium matters. Our dedicated Condominium team is here to assist with any questions or issues that may arise.