CONDOMINIUMS - Developers - Obligations of

Law360 Canada (July 11, 2022, 9:58 AM EDT) -- Appeal by the appellant condominium corporation from the summary dismissal of its claim for breach of fiduciary or tortious duties. The respondent built the subject condominium building. The respondent was alleged to be the developer. The statement of claim pleaded that the respondent acted as the general contractor during the construction. Units were sold to members of the public. Each unit owner was assigned exclusive use of an adjacent balcony. The balconies were part of the common property of the condominium and were under the control of the appellant. Around six years later, problems were identified with the balconies, and the balconies no longer met the minimum load-bearing capacity under the Alberta Building Code. The appellant completely replaced all the balconies. Thereafter, the appellant sued the respondent for the cost of repairs. The claim was framed in tort and breach of fiduciary duty. The respondent’s statement of defence did not specifically deny it was the developer of the building, that the balconies were deficiently designed or constructed, that they needed replacement, or that they were dangerous. The defence asserted a developer was not liable in tort for deficiencies unless it was involved in the physical construction itself. The respondent brought an application for summary judgment. The chambers judge summarily dismissed the appellant’s claim on the basis that there was no evidence the respondent was involved in the physical construction itself....
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