The recent decision of the Ontario Superior Court of Justice in Benmergui v YRSCC No 1510, 2025 ONSC 545, provides a sobering illustration of the consequences facing condo corporations that fail to respond adequately to serious habitability concerns affecting unit owners. The court’s decision underscores the mandatory compliance obligations under ss. 117 and 134 of the Condominium Act, 1998 and expands the remedies available when corporations fail to act with requisite urgency.
The applicant, Ms. Benmergui, experienced four separate sewage back-ups in her newly purchased unit between July and November 2024. The first occurred prior to her moving into her unit. Despite repeated pleas for assistance, the respondent corporation failed to treat the matter as an imminent health hazard. Although the corporation engaged contractors and engineers at various stages, the investigations were piecemeal, communication was delayed, and no clear remediation plan emerged until after litigation was initiated.
On a motion, the court determined that the corporation had failed to comply with its obligations under s. 117 of the Act by permitting a dangerous condition to persist. The court found that by August 2024 – after three of the four backups – the corporation should have been in “full court press” mode to identify and rectify the root cause. Its failure resulted in the applicant being unable to return to her home for more than six months.
The court granted the applicant interim relief under s.134(3)(c), ordering the corporation to pay for comparable alternate accommodations, including first and last month’s rent, until the underlying issues were resolved. While s. 134(3)(b) contemplates reimbursement for damages already incurred, the court interpreted s. 134(3)(c) as allowing forward-looking relief that is “fair and equitable in the circumstances.”
The corporation’s attempt to rely on Brasseur v YCC No 50, 2019 ONSC 4045, was rejected. In contrast to the good-faith efforts made by the corporation in Brasseur, the court held that YRSCC 1510 “permitted the unreliable and, frankly, dangerous sewage system to persist.” While not held to a standard of perfection, it is clear that multiple sewage backups causing a unit to become uninhabitable, requires more action than a proverbial shoulder shrug.
The applicant was awarded partial indemnity costs of $14,500.00. The court declined to award substantial indemnity, finding no “grave positive misconduct” but emphasized that the application was necessary to obtain even the limited relief to which the corporation had eventually consented.
This case reaffirms that condominium corporations must treat serious unit-level intrusions – particularly those affecting health and habitability – as emergencies requiring immediate, comprehensive action. A passive or dismissive approach, even if not malicious, may attract liability under s. 117 and prospective equitable orders under s. 134(3)(c).
Legal practitioners advising condo boards should ensure that these obligations are understood, particularly in the context of recurring or systemic building failures.
Although not discussed in Benmergui, the protection that a robust declaration provides to a condominium corporation can also not be understated.
Laura Gurr and Liam Thompson are lawyers with Cohen Highley LLP in London. Cohen Highley has offices in London, Kitchener, Windsor, Strathroy and Stratford. Laura and Liam both provide risk management and regulatory compliance advice to Condominium Corporations and Property Management Companies.
