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Court cases—Buying an altered unit
Jiakang Wu v. PCC No. 245
Superior Court of Ontario
Court File No: CV-14-146-00
Before : Justice Lemon
Date: 06 May 2015
What follows is sections of a far bigger court case that is dealt with
in two other postings on this website. Ms. Wu says that she has been
oppressed by PCC No 245 because the condo's elevators are causing
excessive noise and vibrations in her
One issue that the board used in their defence was that Ms. Wu's unit
was altered by adding a small bedroom within the existing living room.
This was done prior to her buying the unit.
If Ms. Wu made an error, it was in her failure to get written assurance
from the board that they were aware of and approved the alterations
before she agreed to buy the unit.
Ms. Wu purchased Unit 10, Level 24 on February 28, 2008 for $158,000.
Her unit is on the highest residential floor. It is a one-bedroom
apartment with an enclosed room partitioned off from the original
living room. The unit is 838 square feet. The mechanical, elevator, and
HVAC equipment which service the entire building are located on the
level above her unit.
Ms. Wu’s living room was altered to create a second bedroom/den. This
occurred in 2006 or 2007. That alteration was done by one of the
present board members.
Since February 28, 2008, Ms. Wu has owned and occupied the unit with
her parents. For the first six months of their occupancy, they did not
experience any problems with noise or vibration. However, in September
2008, noise and vibration began to affect Ms. Wu’s unit. After the
problems started, Ms. Wu was unable to have them rectified by PCC 245
and was forced, along with her parents, to endure considerable
aggravation, discomfort, and even illness.
The master bedroom is located furthest from the make up air unit and
elevators. Ms. Wu’s parents occupy the master bedroom. The second
bedroom is located closest to the make up air unit and elevators. It
directly abuts the make up air unit and two elevators.
Ms. Wu’s living room as originally designed contained a window that
opened to the outside air and light. The second bedroom is enclosed by
drywall from the original living room and does not contain any windows
that open to the outside.
Among the 278 residential units comprising the building, Ms. Wu’s unit
is the only one with a bedroom directly abutting a make up air unit or
PCC 245 submits that the second bedroom, therefore cannot be used as a
“habitable room” or for “human habitation”, in contravention of
subsection 42(3)(b) of The Corporation of the City of Mississauga’s
Property Standards By-law. The second bedroom also violates the
Residential Tenancies Act.
Ms. Wu is also in violation of Rule 7 under the “Safety” portion of
Peel’s Rules and Regulations. Rule 7 states that a resident shall not
permit his or her unit to conflict with any statute or municipal by-law.
The area of the unit converted for use as a bedroom required a smoke
detector and the Code requires for the fire alarm, 75 decibel at
The condo’s status certificate expressly states that a prospective
purchaser is responsible for reviewing PPC 245’s declaration and
description to determine whether any modifications have been made to
the unit. Ms. Wu’s realtor advised her prior to her purchase of the
unit that the original design had been altered.
Although two individual board members knew about the alteration shortly
after it was completed in 2006-2007, it was never brought to the entire
board’s attention or approved.
Ms. Wu was fully aware that the unit had been altered from its original
design prior to purchasing it and that the altered second bedroom
directly abutted the make up air unit and two elevators. The board
asked Ms. Wu to consult with the City to resolve her non-compliance. To
date, Wu has apparently taken no steps to contact the City.
The respondent has suggested that the noise and vibrations problems in
Ms. Wu’s unit are the result of unauthorized/unapproved renovations,
although the changes were undertaken by a condominium corporation
director with the knowledge and acquiescence of other board members and
prior to Ms. Wu purchasing the unit;
No enforcement steps have been taken against Ms. Wu with respect to her breach of the condo’s Rule 7.
By letters dated October 3, 2011 and December 5, 2011, Peel advised Ms.
Wu that it would not do any work because her unit was alleged to be
In my view, the complaint by Peel regarding the second bedroom is a red
herring with respect to the noise problem. While there may be a by-law
infraction to be dealt with in another forum, it does not relate to
this dispute. To the extent that PCC 245 tries to combine the two
issues, that supports Ms. Wu’s allegation of unfairness.
The fact that there were no problems for six months is supportive of
Ms. Wu’s case. First, subsequent reports show that there is a problem.
Second, this shows that the addition of the new room (in 2006/07)
before she moved in must not be cause for the noise complaint. It was
there long before the noise problem started.
Orr v. MTCC 1056
Ontario Superior Court of Justice
Court File No: 01-CV-206672CM
Madam Justice D.A. Wilson
Heard: 21-22 Sept & 24 Nov 2016
Date Released: 09 December 2016
Reasons for judgment on the issue of damages
The issue to be determined is the value of the townhouse
purchased by the Plaintiff Kelly-Jean Marie Orr [“Orr”] at 2289 Lake
Shore Boulevard West as a two-storey unit and as a three-storey unit as
of December 2, 2014 [“the valuation date”].
Orr bought townhouse 113 at the Grand Harbour development in September,
1997 and the transaction closed in January, 1998 with a purchase price
of $955,000. It was described as a three-storey unit and that is
what Orr believed she had purchased. Later, it became clear that
the third storey was illegally built into the common element
space. The Court of Appeal fixed the damages as the difference
between the value of unit 113 as a two-storey condominium and as a
three-storey unit as of the valuation date.
At the trial of an issue, the Plaintiff, the Defendant Gowling Strathy
& Henderson [“Gowlings”] and the Defendants Brookfield LePage
Residential Management Services Ltd, Patrick Post, and Pamela Cawthorn
[“Brookfield”] each called an expert appraiser who testified about the
value of the property as of the valuation date. All of the experts were
The Plaintiff’s Expert
Dino Bottero [“Bottero”] was retained as an expert by the Plaintiff.
Agnes Lee [“Lee”] provided an expert opinion on behalf of Brookfield.
Jim Parthenis [“Parthenis”] was the expert retained by Gowlings.
While the appraisals of townhouse 113 by the experts retained by the
Defendants differ by more than a million dollars, their opinions as to
the loss of the third floor are only $40,000 apart. That is due to
their shared view that the third floor in a unit as large as the
Plaintiff’s doesn’t make a significant difference the value of the
property. I do not accept this perspective. Rather, I prefer the
opinion of Bottero on this issue; the third floor added to the charm
and unique quality of townhouse 113, it is an integral part of the
unit. ...Townhouse 113 without a third storey is, simply put, not the
same condominium. Its loss is not trivial to the overall value of
In my view, the most reliable opinion on the value of the loss
of the third floor of unit 113 is that of Bottero. His research
was thorough, his analysis was well-founded and his opinion was not
undermined on cross-examination in the same way that the opinions of
Lee and Parthenis were. I accept the opinion of Bottero as to the
valuations of the unit and therefore find that the loss of the third
floor of the Orr townhouse as of December 2, 2014 is $465,000 and I fix
the damages of the Plaintiff in that amount.