Executive Summary: Key Legal and Evidentiary Issues

• Board’s approval of unit 704’s rooftop “doghouse” expansion without prior City permits or neighbour consultation created foreseeable risks of construction, demolition, and re-construction directly beside the applicant’s terrace.
• Failure of MTCC 1235 to comply with s. 98 of the Condominium Act and the Declaration’s requirement that roof-deck units only be used “as a deck” in accordance with zoning and government regulations was found to unfairly disregard the applicant’s interests.
• Replacement of a 6.5-foot wooden privacy fence with a 10-foot concrete wall, and the unauthorized disposal of the applicant’s fencing, significantly altered the character and enjoyment of her rooftop space and informed the oppression finding and damages.
• Engineering evidence concluded it was “highly unlikely” that water leakage in the applicant’s unit was caused by unit 704’s construction, limiting her claims for structural damage and confining the remedy largely to loss of use and enjoyment.
• Communications issues, including the treatment of the lawsuit in a Periodic Information Certificate and a defaced lobby posting, were criticized but did not independently meet the threshold for oppression.
• The court held MTCC 1235 (but not individual directors or the manager) liable under s. 135 and awarded Amanda Marshall $45,000 in compensation for oppression, primarily reflecting prolonged interference with her rooftop terrace and disregard of her legitimate expectations.

Factual background and the rooftop doghouse dispute
Amanda Marshall owns and resides in unit 705 at 90 Sumach Street in Toronto, a penthouse condominium unit with access to a rooftop terrace shared in part with other seventh-floor owners. These residents enjoy a mix of common elements, exclusive use areas, and owned rooftop units, divided by privacy fences and served by small covered entry structures commonly referred to as “doghouses.” These doghouses provide sheltered access from the interior units to the open-air terraces. Over the years, several seventh-floor owners had obtained approval from the condominium board to renovate or alter their doghouses, sometimes enclosing them more fully. Against that background, the owners of units 703 and 704 sought approval to significantly enlarge and enclose their rooftop doghouses. Unit 704’s doghouse area is a common element over which the owner has exclusive use, and it directly adjoins Ms. Marshall’s terrace and doghouse. In April 2021, the Board of Directors of Metropolitan Toronto Condominium Corporation No. 1235 (MTCC 1235) approved unit 704’s proposed renovation at a board meeting attended by the full board and the property manager. The approval was recorded as mirroring an earlier approval granted to unit 703. The conditions imposed tracked those used for 703 and included the need for a s. 98 agreement, height limits tied to existing similar structures, and drainage and finishing requirements. The Board did not, however, require that the owners of units 703 and 704 first obtain City of Toronto building permits or zoning approvals before starting construction, even though the planned structures were larger, higher, and more intensive than previous doghouse modifications. Ms. Marshall was neither notified in advance nor consulted about the 704 project, and she was not provided with plans before the Board’s decision. Construction of the new integrated structure for units 703 and 704 began in September 2021, coinciding with a major roof-membrane replacement project that had already closed the rooftop to residents between June 2021 and June 2022. Using the same contractor, the two units’ doghouse expansions were built as a single, large structure divided internally, with an enlarged shed-style roof and a higher profile than existing fencing. Ms. Marshall’s former 6.5-foot wooden privacy fence was removed to accommodate the work and was never reinstated; instead, a taller, 10-foot concrete wall with new wood elements became the barrier between her terrace and unit 704’s exclusive-use area. After seeing the extent of the construction once rooftop access resumed, Ms. Marshall retained counsel. She complained to the Board about loss of privacy, loss of enjoyment of her terrace, the change in character of her outdoor space, alleged damage (including cracking and chips) within her unit, and concerns about water leakage she attributed to the project.

The condominium documents, statutory duties, and policy terms at issue
The dispute was framed by both the Condominium Act, 1998 and MTCC 1235’s declaration and rules. Under s. 98 of the Act, a condominium corporation may permit owners to make additions, alterations, or improvements to the common elements, but it must be satisfied, among other things, that the change will not adversely affect other units, will not affect structural integrity without proper engineering certification, and will not contravene the declaration or any prescribed requirements. Section 98 also contemplates that, where other owners will be affected, notification and consultation are required before approval is given. The corporation’s declaration added a crucial limitation on rooftop use. It required that each roof-deck unit “shall only be used as a deck in accordance with the Condominium rules, zoning by-laws, and government regulations.” This clause effectively embedded zoning compliance and regulatory conformity into the condominium’s governing documents for rooftop spaces. In addition, the court considered s. 135 of the Act, which creates an oppression remedy where the conduct of an owner, corporation, declarant, or mortgagee is oppressive, unfairly prejudicial, or unfairly disregards the applicant’s interests. The analysis is driven by the reasonable expectations of the complaining owner and whether those expectations have been violated in a way that meets the statutory threshold. Section 37 of the Act, which governs directors’ and officers’ duties, also informed the court’s understanding of how the Board was expected to act—honestly, in good faith, and with the care, diligence, and skill of a reasonably prudent person in similar circumstances. Although the Board had historically approved other rooftop doghouse alterations, those earlier approvals were not formal amendments to the declaration and did not change the requirement that roof-deck units be used consistent with zoning and governmental rules. In this case, the planned 703/704 conversions far exceeded the scale and impact of previous projects and were later held by municipal authorities to contravene zoning density and height limits.

Municipal approvals, zoning non-compliance, and ensuing orders
From a municipal law perspective, the 703 and 704 projects were problematic from the outset. The structure created by the joint renovation substantially increased the enclosed residential space on the roof: existing doghouses of approximately 5.4 square metres were being converted into much larger residential enclosures of 33.4 square metres and 28.0 square metres, complete with a washroom and living room in one case and additional living space in the other. These increased heights and massing shifted the rooftop from an open-deck character towards a quasi-enclosed upper storey of living space. The City of Toronto’s zoning by-law imposed both height and density restrictions that the new structure did not meet. By late 2021 and early 2022, the City issued zoning examiner letters and building inspector directives confirming that the projects were non-compliant and ordering the owners to remedy the situation. The owners of units 703 and 704 sought relief from the Committee of Adjustment through minor variance applications. In April 2022 hearings, the Committee concluded that the proposed variances did not maintain the general intent and purpose of the Official Plan or the zoning by-law, were not desirable for the appropriate development of the land, and were not minor. The Committee’s reasons emphasized that the rooftop was intended to remain principally open, not to become a series of enclosed residential spaces. The owners appealed to the Toronto Local Appeal Body (TLAB). In December 2022, TLAB dismissed the appeal, again noting that the conversions would undermine the open-space character of the rooftop, contravene height and density controls, and set an undesirable precedent for further enclosure. A review request to TLAB was also dismissed in April 2023, with the vice-chair finding no error of law or fact in the original decision. After the appeal process ended, MTCC 1235 wrote to units 703 and 704 in May 2023, requiring removal of the non-conforming structures within 30 days and advising that it would seek to be indemnified for any damages arising from the unauthorized construction. Demolition permits were issued, and once new, compliant doghouse plans were approved, the structures were demolished and replaced. By October 2023, the offending rooftop enclosures were removed and smaller conforming doghouses were in place.

Expert evidence, water leaks, and structural impact
A substantial portion of Ms. Marshall’s complaint focused on alleged physical damage and water infiltration that she attributed to unit 704’s construction. MTCC 1235 retained Cion Corporation, an engineering firm, to investigate her leak complaints. Cion attempted to inspect both her unit and the area above her rooftop to assess whether the new structure or its waterproofing details were the source of any leakage. Ms. Marshall declined interior access to Cion but the firm nonetheless prepared a report. Cion concluded that the most probable cause of prior water penetration was deficiencies in the roof membrane flashing around a plumbing stack associated with the separate roof-replacement project, and issues with the exterior cladding of the roof-top entrance. It stated that it was “highly unlikely” that moisture in Ms. Marshall’s unit was related to unit 704’s rooftop enclosure. Ms. Marshall did not file any competing expert report to contradict this conclusion. The condominium later retained another consultant, AJW, to address ongoing concerns. AJW inspected Ms. Marshall’s unit and reported that vibrations and drilling from the 704 construction could have dislodged small pieces of concrete or caused minor finishing damage inside her suite. However, AJW’s report did not find any structural integrity issues and expressly noted that building-envelope water leaks were beyond its scope and expertise, recommending a specialized building-envelope consultant if water staining persisted. On this evidentiary record, the court was not satisfied, on a balance of probabilities, that water leakage or structural harm in Ms. Marshall’s unit was caused by the 704 construction. As a result, her claims based on leaks and structural damage did not drive the ultimate remedy; instead, the court’s focus turned to procedural fairness, loss of enjoyment, and the broader impact of the Board’s approval process on her reasonable expectations.

Board decision-making, non-consultation, and the oppression analysis
The court’s core legal assessment centered on the oppression remedy in s. 135 of the Condominium Act. The question was whether the conduct of MTCC 1235, through its Board, was oppressive, unfairly prejudicial, or unfairly disregarded Ms. Marshall’s interests, viewed against the backdrop of her objectively reasonable expectations. Ms. Marshall’s principal argument was that, as the immediate neighbour to a large, non-conforming rooftop construction that would radically change the character and height of the barrier adjacent to her terrace, she had a reasonable expectation of advance notice, consultation, and consideration of her interests before the Board approved the project. The Board contended that it acted in good faith and believed the renovations would not adversely affect other units. It also pointed to past approvals of other rooftop doghouse enclosures and argued that the 704 project fit within that pattern. The court disagreed. It held that the Board’s failure to notify and consult Ms. Marshall, particularly given the scale of the non-conforming structure and the clear risk of future demolition if municipal approvals were denied, amounted to an “unfair disregard” of her legitimate interests. By approving construction before the necessary building and zoning approvals were in place, the Board knowingly exposed Ms. Marshall to the foreseeable risk of living beside a large, controversial structure that might have to be torn down and rebuilt, generating prolonged disruption and uncertainty. The Board also failed to ensure that commitments made through management to preserve Ms. Marshall’s wooden privacy fence were honoured. Her original fence was removed and disposed of by the contractor, and the replacement fencing did not match the previous aesthetic or the rest of the rooftop at the time. This failure was not treated as a separate act of oppression but was an aggravating consequence of the flawed approval process. The court emphasized that replacing a 6.5-foot wooden fence with a 10-foot concrete wall adjacent to Ms. Marshall’s terrace had an obvious impact on her use and enjoyment of the space. It blocked views, altered light and openness, and fundamentally changed the character of her outdoor area. The Board had received architectural plans and was therefore aware—or should have been aware—of the project’s scale and massing when it granted approval. That knowledge, coupled with the absence of consultation, strengthened the conclusion that Ms. Marshall’s reasonable expectations were disregarded. At the same time, the judge found no evidence of bad faith, personal animus, or targeted bias by individual directors or the property manager. Rather, the problem lay in the corporation’s decision-making process and its failure to meet its statutory and declaratory obligations. For that reason, liability was imposed on MTCC 1235 as a corporation, not on individual directors or the managing agent.

Other alleged acts of oppression and the court’s limited findings
Ms. Marshall advanced several additional allegations, arguing that they constituted separate acts of oppression. These included the covering of a common-element roof drain by 704’s construction; the handling of community-forum discussions; the Board’s later rule change requiring permits prior to rooftop construction; a redacted indemnity letter initially produced in litigation; and, significantly, the Board’s communication about her lawsuit in a Periodic Information Certificate (PIC) and a related defaced lobby posting. The court addressed each allegation. It held that the covered roof drain and related leak concerns formed part of the context of the flawed approval process but were not proven as independent sources of damage or oppression. Similarly, the failure to preserve and reinstall Ms. Marshall’s original fence wood was treated as an aggravating outcome, not a standalone breach. Regarding the community forum, there was no evidence that Ms. Marshall was prevented from posting or that she suffered retaliation, so the Board’s attempt to moderate or respond to online debate did not reach the level of oppressive conduct. The rule change adopted after the 704 controversy—in which the Board amended rooftop renovation rules to require that permits be secured and displayed before construction—was viewed as a corrective step, not retroactive wrongdoing or misrepresentation. The initially redacted indemnity letter was later produced unredacted after counsel discussions, and the court found that this litigation step did not amount to oppression. The communication that drew the sharpest criticism concerned the January 2024 PIC. In that certificate, the Board included a cover letter specifically highlighting Ms. Marshall’s lawsuit while omitting mention of another, larger lawsuit that had been commenced one week earlier. A copy of the cover letter referring to her case was then posted on a public bulletin board in the building, with a handwritten note “MARSHALL LAWSUIT – PLEASE READ” added in large letters. After Ms. Marshall complained, management removed the posting, but only after a second reminder and a total of five days. The court accepted that this differential treatment was problematic and could reasonably be perceived as singling her out in the eyes of other residents. However, the judge ultimately concluded that the timing of the second lawsuit meant it could not practically be added to the January PIC, and that a later PIC treated both lawsuits in a more neutral manner. The lobby posting and slow response were considered insensitive and unfortunate but did not, in themselves, satisfy the statutory threshold for oppression. Overall, the court recognized only one principal oppressive act: the Board’s failure, through MTCC 1235, to notify and consult Ms. Marshall before approving the non-permitted, non-conforming rooftop structure adjacent to her unit, contrary to the condominium declaration and the consultation obligations embedded in s. 98 of the Act.

Remedy, quantum of damages, and overall outcome
Having found a breach of s. 135, the court turned to the appropriate remedy and quantum of damages. The oppression remedy is flexible and aims to rectify the consequences of oppressive or unfairly prejudicial conduct, while also signalling to condominium corporations the importance of respecting owners’ reasonable expectations. Here, the court expressly rejected Ms. Marshall’s characterization of the conduct as “abusive” or “egregious,” and distinguished this case from more extreme examples in the jurisprudence, such as falsification of condominium records or physical lockouts of owners from their units. Nonetheless, the court emphasized that the Board’s conduct was “disrespectful,” inattentive to Ms. Marshall’s rights, and inconsistent with its statutory and declaratory duties. The impact of the flawed approval decision was significant and long-lasting. Ms. Marshall temporarily lost use of her rooftop terrace during the roof-membrane replacement, but more importantly, once that work was complete, her enjoyment of the terrace remained compromised until October 2023 while the oversized rooftop structure stood, while the variance and appeal process played out, and until the eventual demolition and reconstruction of compliant doghouses. She also lost her original wooden privacy fence, which she valued, and experienced ongoing stress, frustration, and a sense of being disregarded in the governance of her own condominium community. In assessing quantum, the court compared this case to other oppression awards. It concluded that the conduct here was less severe than a case involving falsified records resulting in a $75,000 award, but more impactful than another case concerning a 10-day lockout that attracted $10,000 in damages. The judge also weighed several mitigating factors, including the Board’s eventual steps to register s. 98 agreements, halt construction when the City issued a stop-work order, revise rooftop renovation rules to align with the declaration and require permits, retain experts to investigate structural and leak concerns, and ensure that units 703 and 704 complied with municipal orders and removed the non-conforming structures. Taking all of these factors into account, the court ordered MTCC 1235 to pay Ms. Marshall $45,000 in compensation under s. 135. No damages or other remedies were granted against the individual directors or the property management company, and no further financial orders (such as costs) were quantified in the reasons, leaving any cost determination either to agreement or to later written submissions. In the result, Amanda Marshall was the successful party, obtaining a judgment of $45,000 in her favour, with any further amounts for costs not yet determined in the decision.