CONDOCENTRIC: Suttie v. Metropolitan Toronto Condominium Corporation No. 683

In Suttie v. Metropolitan Toronto Condominium Corporation No. 683 (Small Claims Court), a pipe in the Plaintiff’s dishwasher, which was located in her unit, broke causing water to damage her hardwood floor, which she installed, replacing the original broadloom flooring.  She made a claim under her personal homeowner’s insurance policy for the cost of replacing the floor and for other expenses.  The insurer then subrogated to an alleged right of action of the Plaintiff against the Condominium Corporation for $10,000 as the Plaintiff claimed that the Corporation was responsible for repairing or replacing her hardwood floor and consequential losses on the basis of Subsection 89(5) of the Condominium Act, 1998 (the “Act”).

The Corporation’s Declaration contained a “waiver of subrogation” clause which stated that if a unit owner had insurance to cover any additions or improvements that he/she made to their unit, that the insurance policy “shall contain a waiver of subrogation against the Corporation…”. The Court found that the Plaintiff’s installation of the hardwood floor was an improvement and since Section 119 of the Act requires an owner to abide by the Declaration, she waived her right to have her insurer sue the Corporation for damages in her name.  Even though a waiver of subrogation was not included in the Plaintiff’s policy, the insurer was bound by the terms of the Declaration because it is not legally possible to possess greater rights than the unit owner under the Declaration.

The Court went on to discuss whether the Corporation had the obligation to pay for the repair or replacement of the hardwood floor.  The Court analyzed Sections 89 and 91 of the Act as well as the Maintenance and Repair portions of the Corporation’s Declaration and found that the owner had a duty to repair the unit, which included improvements, even though a Standard Unit By-Law had not been passed by the Corporation, as it was created well before the Act came into force.

This case discussed and, ultimately, disagreed with a previous decision, D’Alessandro v. Carleton Condominium Corp. No. 43. In D’Alessandro, the Court, based on similar facts, ruled that the Corporation was obligated to pay for the repair of the hardwood floors that the unit owner had installed, since a Standard Unit By-Law to describe the hardwood floors as an improvement, as per Subsections 89(3) and 89(4) of the Act, had not been in place at the condominium.

I believe that the reasoning in Suttie is more persuasive than the reasoning in D’Alessandro and is a good decision for older condominiums without a Standard Unit By-Law. However, the only way that a condominium can get certainty on the definition of improvement is to pass a Standard Unit By-Law.

If you would like to read more about waiver of subrogation clauses please click here

If you would like to read a comparative analysis of the Suttie case and the D’Alessandro case, please visit:  

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