Alberta Court of Appeal dismisses claim against condominium in construction-related nuisance case

The bylaw protected the condominium corporation from nuisance claims: court

Alberta Court of Appeal dismisses claim against condominium in construction-related nuisance case

The Alberta Court of Appeal has recently ruled in favour of a condominium corporation, affirming the validity of a bylaw that exempts the corporation from a construction-related nuisance claim.

In Dunn v Condominium Corporation No. 042 0105, 2024 ABCA 38, the appeal court overturned a trial justice's ruling and underscored the protective scope of condominium bylaws against certain legal claims.

The case started in 2014 when the condominium corporation undertook necessary roofing repairs to address water ingress issues. The extensive construction work, lasting from October 2014 to November 2015, led to complaints from a tenant renting a unit from respondent Trevor Dunn. Citing disturbances such as noise and restricted access, Dunn agreed to lower the rent, subsequently seeking damages for the rent reduction from the condominium corporation, among others.

Central to the appeal was the interpretation of Bylaw 4.11.1 within the condominium's regulations, stating that neither the corporation nor its board members shall be liable for any damage or loss caused to owners, tenants, or unit occupiers. The trial justice had initially found this bylaw did not extend to shielding the corporation from a nuisance claim—a stance challenged by the corporation.

The Alberta Court of Appeal reviewed the bylaw's language and context, alongside relevant statutory frameworks and legal precedents. Contrary to the trial justice's interpretation, the appellate court concluded that Bylaw 4.11.1 protects the condominium corporation from the nuisance claim filed by Dunn.

The court's analysis highlighted that nuisance, characterized by the interference with the use or enjoyment of land, inherently encompasses "damage or loss," which falls under the bylaw's protection.

Furthermore, the court addressed Dunn’s argument that the action had been settled, rendering the appeal an abuse of process. By examining new evidence, the court determined that the appeal was not barred, clarifying that the contested documents served more as receipts rather than comprehensive releases or settlements of claims.

Ultimately, the court allowed the appeal, concluding that Bylaw 4.11.1 barred Dunn’s claim against the condominium corporation for rental loss.

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