Executive Summary: Key Legal and Evidentiary Issues

• Central issue involved whether drywall on the unit side of a shared wall was part of common property under the Condominium Property Act and the condominium plan.

• The chambers judge incorrectly found that the drywall was part of the unit, contrary to the condominium plan's express boundary definition.

• Allegations of improper conduct stemmed from the corporation’s failure to investigate noise issues despite repeated complaints and expert findings.

• Use of post-order architectural and reserve fund reports by the chambers judge was improper in assessing earlier alleged misconduct.

• The respondent’s minimal early response, including informal tests and minor lounge policy changes, was deemed inadequate.

• Court of Appeal reinstated the applications judge’s decision, holding the wall was common property and the corporation’s failure breached statutory duties.

Background and factual context

Mary Jean Aubin owned a condominium unit in a two-building, 347-unit complex. Her bedroom shared a wall with the social lounge—designated common property—making her the only owner directly affected by that wall. She experienced disruptive sound transference from the lounge into her bedroom, leading to sleep disturbances, stress, and a health condition. Aubin repeatedly raised these concerns with the condominium board and property manager, both verbally and in writing.

On June 13, 2018, she formally requested that the board retain an acoustics expert. The board declined, stating it could not authorize structural changes to common property and instead implemented minor steps: clearer lounge rules, posting an 11:00 p.m. closing sign, increased security deposits, and instructing cleaning staff not to vacuum before 9:00 a.m.

On August 16, 2018, Aubin again wrote to the board, noting a sound engineer advised her that an acoustical study could be done for approximately $600. At her request, board members conducted an informal sound test during their meeting. Based on that, the board concluded the sound was not excessive and declined further structural action, citing the wall was intact and any change would be an “enhancement,” not a repair.

Aubin then hired an acoustical consultant, who conducted a site inspection on December 5, 2018. His report found the wall had a Noise Isolation Class rating of 38—well below acceptable levels—and that lounge sounds would be “audible, intelligible and unacceptable.” He recommended upgrades to achieve a rating of at least 60. This report was given to the board, but no investigation followed.

Applications judge decision (Aubin #1)

On January 7, 2019, Aubin filed an application seeking a declaration of “improper conduct” under section 67 of the Condominium Property Act, and an order requiring the board to install an appropriate acoustic barrier or limit lounge access. The applications judge found the board’s early response was appropriate, but further inaction—despite Aubin’s expert report—amounted to improper conduct. The court ordered the corporation to retain an expert to assess whether the wall was reasonably adequate for sound dampening and, if not, to recommend improvements. The court awarded Aubin partial solicitor-client costs of $32,948.62 in a March 23, 2023 order.

Chambers judge decision (Aubin #2)

Before the appeal was heard, the condominium corporation commissioned architectural reports, a reserve fund study (November 17, 2022), and retained a property services firm for wall access and asbestos remediation. One architectural report (February 24, 2023) confirmed the wall failed to meet the National Building Code: 1970 STC requirement; another (June 13, 2023) found fire code deficiencies and recommended applying 5/8” drywall on both sides. The respondent continued to offer adding drywall only to the lounge side, and invited Aubin to add drywall to her side at her own cost. She declined.

The chambers judge admitted the new documents and ruled that Aubin was responsible for the drywall on her side of the wall. Interpreting section 9(1) of the Condominium Property Act, he concluded the finishing material (including drywall) within a unit was not common property. He also found that the board’s earlier actions—including the informal sound test and rule changes—constituted a reasonable response, and no improper conduct occurred. He vacated the original cost award and granted enhanced costs to the condominium corporation.

Court of Appeal ruling (Aubin #3)

The Alberta Court of Appeal allowed Aubin’s appeal. It found the chambers judge erred in interpreting the unit boundary provisions. The condominium plan stated the boundary with common property was “the undecorated interior surface,” which excluded drywall. Therefore, the entire wall, including the drywall, was part of common property, not part of Aubin’s unit.

This error in classification undermined the chambers judge’s analysis of the board’s obligations under section 37 of the Condominium Property Act. The Court held that, given the wall was common property, Aubin had a reasonable expectation that the board would either investigate or repair deficiencies shown by her expert’s report. The informal sound test by board members and subsequent limited measures were inadequate, especially after receiving objective, professional findings. The Court found Aubin’s expectations were both subjectively and objectively reasonable and concluded the board’s failure to act was improper conduct under the Act.

The Court also rejected the chambers judge’s view that the board treated Aubin equitably. Her unit alone was affected, and the burden imposed on her was not shared by other unit owners. Therefore, the board's inaction disproportionately disadvantaged her. The Court of Appeal reinstated the original decision and the March 23, 2023 costs award.