A Toilet Leak, A Chargeback, and a Case of Negligence (maybe?) - by Luis Hernandez, BA, JD, CCI - Windsor - Essex Director
In terms of condominium case law, 2021 has started off with a continuation of one of the most interesting cases of 2020. In Lozano v. TSCC 1765 , 2021 ONSC 983, the Divisional Court heard an appeal from a July 2020 decision. In the original decision, the trial judge found that the owners of a condominium unit, the Lozanos, were liable for damages arising from a water leak that came from a toilet in their unit. By way of background, while the Lozanos’ were out of the country for about five months, they left the unit unoccupied. In an attempt to be responsible, they arranged for a friend to check it every two weeks to make sure the heat was on and to collect their mail. However, a few days before the Lozanos were scheduled to return, the friend noticed that water was leaking from the toilet and reported it to the condominium. The water leaking caused damage to the Lozanos’ unit, to the ceiling of the unit below, and to parts of the common element hallways. Eventually, it was discovered that the leak had occurred as a result of a broken ballcock which caused water to constantly fill and overflow the toilet. It is important to mention that, about a year prior to the water leak in issue, the Lozanos fixed an issue with the toilet’s float themselves without hiring a plumber to fix it (spoiler alert – this will be important!). The condominium corporation’s by - laws included a provision holding the owners responsible for the deductible on the corporation’s insurance policy in cases of damage resulting from the owners’ “acts or omissions”.
Ultimately, they registered a lien under section 105 of the Condominium Act, 1998 for the lesser of the cost to repair the water damage and the deductible limit of the corporation’s insurance policy. The owners argued that the corporation could not chargeback the repair cost because they did not commit an “act or omission” which caused the toilet to leak. They also argued that they maintained the unit, acted reasonably, and had originally fixed the toilet issue when it first appeared. Because of this, they asked the Court to consider a “robust” negligence threshold to prove an act or omission. However, the Court ultimately held that the damage resulted from the owners’ “act or omission” because they failed to maintain the toilet and should have hired a plumber to inspect it. The Court also held that negligence is not the standard to be considered in these types of cases. While the Court was appreciative of the fact that the Lozanos might not have acted negligently, it still indicated that the system that they were advocating for was untenable because all the other owners would more frequently (and unfairly) be responsible for repair costs or insurance deductibles. We could not say it better than the Court did, so below are some notable comments from the decision: Here, the Lozanos were aware that the toilet had previously malfunctioned and chose not to employ a plumber to address the problem or to maintain the plumbing subsequently. In Breakwell, the unit owner had no notice that the internal wiring of the
Luis Hernandez, BA, JD is an associate at Shibley Righton LLP and works primarily with the Condominium Law group. His practice is focused on solicitor-side condominium work, nevertheless he is often involved in litigation-related matters. He consistently advises boards of directors on corporate governance, compliance matters, negotiation of contracts, and preparation of by-laws and rules. He also attends clients' board meetings and chairs owners' meetings, such as annual general meetings and requisitioned meetings. With respect to litigation, Luis has appeared as counsel before the Ontario Superior Court, Divisional Court, Small Claims Court, Condominium Authority Tribunal, and the Landlord and Tenant Board. Luis is a member of the CCI Windsor-Essex Chapter and serves as their CCI National Representative. He has also participated as a presenter for CCI-London and Area Chapter.
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