CITATION: Nicholas v. Toronto-Dominion Bank, 2016 ONSC 3824

COURT FILE NO.: 14-62837

DATE: 2016/08/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVEN VRHOVAC NICHOLAS

Plaintiff

– and –

THE TORONTO-DOMINION BANK and CARLETON CONDOMINIUM CORPORATION NO. 336

Defendants

Self-Represented Plaintiff

J.M. Butson, for the Defendant, Toronto-Dominion Bank and

C.J. Allen, for the Defendant, Carleton Condominium Corporation No. 336

HEARD: September 25, November 9 and December 11, 2015 (at Ottawa)

REASONS FOR JUDGMENT

Kane J.

[1] Each defendant seeks dismissal of this proceeding by way of motion for summary judgment.

[2] Mr. Nicholas formerly owned one residential unit (the “Unit”) in an Ottawa condominium tower which comprises CCC 336.

[3] In 2011, CCC 336 decided to replace the exterior windows of all condominium units. Mr. Nicholas objected to the replacement of the windows in his Unit, refused CCC 336 entry into the Unit to replace such windows and stopped paying his monthly common expenses.

[4] CCC 336 accordingly was required to obtain court ordered access. The plaintiff continued to refuse access to change the windows. After intervention of police, CCC 336 finally gained access to the Unit and changed windows at added cost.

[5] This window replacement dispute and related costs formed the basis of several legal proceedings commenced by CCC 336 and then pursued by The Toronto-Dominion Bank (“TD”) as registered mortgagee of the Unit.

[6] TD obtained judgment against the plaintiff for its payment to CCC 336 of condominium arrears, the balance of the registered charge, costs and possession of the Unit. TD took possession and ultimately sold the Unit for non-payment of its debt by power of sale.

[7] Mr. Nicholas commenced this proceeding by statement of claim against CCC 336 and TD on December 11, 2014.

THIS PROCEEDING

[8] In his statement of claim, Mr. Nicholas seeks:

(a) Damages for financial loss due to his unlawful eviction, the unlawful repossession and sale of the Unit;

(b) Damages for his cost of accommodation, moving, storage, legal, administrative and real-estate fees resulting from his eviction and sale of the Unit under (a) above; and

(c) Damages for the negative financial impact on him due to his much lower credit rating resulting from his eviction and sale of the Unit under (a) above.

CCC 336 MOTION FOR SUMMARY JUDGMENT

[9] Carleton Condominium Corporation CCC 336 (“CCC 336”) seeks:

(a) Summary judgment dismissing the action pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”); and

(b) In the alternative, an order striking out the following paragraphs of statement of claim without leave to amend, namely; paras. 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 35, 36, 37 and 38.

[10] CCC 336 alleges in argument that the grounds for summary judgment are:

(a) There is no genuine issue as to itself requiring a trial;

(b) The entirety of Mr. Nicholas’ claim has been the subject of prior judicial process;

(c) The plaintiff is therefore estopped from bringing this proceeding on the basis of the doctrines of Res judicata, issue estoppel or abuse of process;

(d) Privity exists between CCC 336 and TD as to the orders and judgments obtained by each against the plaintiff and the Unit. The judgment for all condominium arrears and costs obtained by TD accordingly determines the plaintiff’s liability to CCC 336 as to those issues thereby resulting in the application of res judicata and issue estoppel;

(e) In the alternative, Mr. Nicholas’ claims are statute barred as having been commenced outside the applicable limitation period pursuant to sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, as amended as the allegations in this claim have been known to Mr. Nicholas for more than two years prior to the December 2014 commencement of this action;

(f) The matters in the statement of claim have already been the subject of prior judicial process.. There therefore is no genuine issue raised in the statement of claim and this action accordingly constitutes an abuse of process; and

(g) In the alterative, the statement of claim in paragraphs 10 to16 and 17 contains and improperly pleads evidentiary allegations, legal argument and unfounded allegations which will result in delay or prejudice and must therefore be struck.

PLAINTIFF AND CCC 336

[11] In 2011 the Directors of CCC 3336 decided to replace the exterior windows in this condominium tower and selected a window replacement model. The new window specifications prepared by the engineers of CCC 336 provide for a 100 mm window opening restriction for protection reasons pursuant Art. 3.7.2.2 of the 2006 Building Code.

[12] The Declaration of CCC 336 indicates that the exterior windows are common elements and therefore regulated by the condominium and not by unit owners. The Declaration provides that CCC 336 is responsible to maintain all common elements.

[13] The objects of a condominium corporation under s. 17(2) of the Act “are to control, manage and administer the common elements and the assets of the corporation”.

[14] CCC 336 was obligated by s. 90 of the Condominium Act, 1998, S.O. 1998, c. 19, as amended by 2000, Chapter 26, Sched.B. s. 7 (the “Act”), to maintain and repair common elements. S. 19 of the Act provides the corporation with a right of access to units to perform corporation duties.

[15] The definition of “common expenses” under the Act are not limited to an owner’s monthly condominium fees.

[16] Section 1(1) of the Act states:

(i) “common expenses” means the expenses related to the performance of the objects and duties of a corporation and all expenses specified as common expenses in this Act or in a declaration”.(emphasis added)

[17] Common expenses of CCC 336 pursuant to Part V and Schedule D of CCC 336’s Declaration, are “the expenses of the performance of the objects and duties of the Corporation …” and “all money payable by the Corporation for …” “maintenance and repair of common elements” and “legal … services and such other services required to assist and enable the Corporation to perform its duties.”

[18] The Board of Directors had authority to determine and carry out maintenance, additions, alterations and improvements to common elements of the condominium, as provided in s. 98 of the Act.

[19] S. 84(3) of the Act provides that a unit owner, despite having a claim against the condominium, must pay unit common expenses, which in this case included $17,607 of common expenses as determined by court order dated September 29, 2011. (the “2011 Order”).

[20] Condominium living accordingly restricts unit owners freedom of choice. This and prior proceedings originate from the plaintiff’s rejection of the above legal principles.

[21] The Unit window replacement in the tower was scheduled for June of 2011. The plaintiff advised he would deny access because he disagreed with the window replacement model. CCC 336 accordingly engaged their solicitors to deal with the plaintiff’s refusal.

[22] Despite letters from the condominium and its legal counsel, the plaintiff denied Unit access to carry out the work on June 3, 2011, forcing the contractor to “skip” the Unit in the window replacement of all units.

[23] CCC 336 commenced an application on July 18, 2011, (the “CCC 336 Application”):

(a) to gain access to the Unit to replace the windows, including police assistance if required;

(b) for all condominium costs, including additional contractor charges for replacement of Unit windows out of sequence and all legal costs to be recoverable as common expenses of the Unit and by condominium lien.

[24] The application was argued in Ottawa on September 29, 2011. The plaintiff did not defend the application which resulted in an order dated September 29, 2011 (the “2011 Order”).

[25] The 2011 Order:

(a) validated service of the CCC 336 Application on the plaintiff;

(b) granted CCC 336 access to the Unit to carry out the window replacement work;

(c) determined and awarded CCC 336 the additional contractor’s charges resulting from having to complete the Unit window replacement out of sequence with the other units, namely $8,181.20;

(d) awarded costs of the 336 Application proceeding to CCC 336 in the amount of $9,425.84; and

(e) determined that the two above monetary awards totalling $17,607.04 were to be added to the common expenses of the Unit and were recoverable as such, including by way of condominium lien.

[26] The 2011 Order payment obligation was effective as of September 29, 2011.

[27] Whether a different model of window allowing greater air flow was preferable, whether the child safety objective of the Building Code requirement could be met with the use of a latch and what were the Building Code requirements, accordingly were not legally relevant as to the installation of these replacement windows in the Unit as the Directors were acting within their authority in selecting the window replacement model notwithstanding this owner’s preference for a different model.

[28] Another disadvantage to condominium ownership is the cost consequences in disputing and not paying common expenses, as a condominium corporation upon obtaining a lien for arrears of common expenses is entitled to “all reasonable legal costs and reasonable expenses incurred by the corporation in connection with the collection or attempted collection of the unpaid amount”, pursuant to s. 85(1) of the Act. (emphasis added)

[29] This Court in the Carleton Condominium Corporation No 396 v Burdet, 2015 ONSC 1361, para. 39, (“CCC 396”) aff’d., 2016 ONCA 394, 2016 ONCA394, (“CCC 396 Appeal”) held that:

Whether considered:

(a) Under s. 84 and s. 85, as to the lien amount and “all reasonable legal costs and reasonable expenses” incurred in “connection with the collection or attempted collection of the owing under the corporation’s liens”; or

(b) Under s. 134, as to damages for non-compliance with any provision of the Act and “costs incurred in obtaining the order” which include “any additional actual costs to the corporation in obtaining the order…”;

the above sections of the Act signal a clear legislative intention and requirement that condominium unit owners breach of such statutory obligations are liable for all reasonable legal costs and expenses incurred by the condominium corporation in addressing that default.

[30] The plaintiff alleges that his only non-payment of regular monthly common expenses for October to December 2011 was an error or oversight and that CCC 336 was at fault for not advising him of such. Those monthly levied common expenses was not the extent of his default as he omitted paying subsequent monthly common expenses on time in 2011 and 2012 and he failed to pay the common expense arrears of $17,607 pursuant to the 2011 Order.

[31] The plaintiff’s argument that the $17,607 awarded in the 2011 Order was not common expense arrears under the Act is a collateral attack of the 2011 Order which determined the exact opposite and was not appealed.

[32] The plaintiff failed to pay the 2011 Order in response to CCC 336’s November 7, 2011 demand for payment of the same by December 28, 2011, failing which he was advised that a certificate of lien would be registered on title. That letter advised the plaintiff that the costs of the condominium were continuing to increase.

[33] CCC 336 issued a notice of condominium lien on December 16, 2011 in the amount of $20,678.

[34] The plaintiff failed to pay. CCC 336 accordingly registered a condominium lien against the Unit on December 28, 2011 in the amount of $19,783.41.

[35] CCC 336’s registration of its lien on December 28, 2011 was within the 3 month time limit as provided in s. 85(2) of the Act and included the 2011 Ordered $17,607, his subsequent October to December 2011 unpaid monthly common expense fees, interest and all of the condominium’s ongoing legal fees and expenses.

[36] Replacement of the Unit’s windows was re-scheduled for May 10, 2012. CCC 336 sent the plaintiff written notice thereof on May 2, 2012. The plaintiff again refused entry to the Unit to replace the windows on May 10, 2012. Police attended however the plaintiff continued his refusal. On police instructions, the attending locksmith drilled open the Unit’s lock. Contractors entered and replaced the windows. The associated costs to CCC 336 were increasing which the plaintiff now disputes in this proceeding.

[37] In 2012, the plaintiff continued his failure to pay the Unit’s regular monthly common expenses.

[38] In August, 2012, the lawyers of CCC 336 received the plaintiff’s payment of his monthly common expenses for the period December 2011 to August 2012. The plaintiff argues this $2,737 payment thereby paid his liability under the condominium lien. That clearly is incorrect as it ignores his non-payment of 2011 Ordered amount, the condominium’s subsequent enforcement costs and the remaining unpaid common expenses for October and November 2011.

COLLATERAL ATTACK OF 2011 ORDER

[39] The plaintiff did not appeal the 2011 Order. His allegations in this proceeding against CCC 336 are an attempt:

(a) to confuse the 2011 Order with the subsequent proceeding by CCC 336 against him; and

(b) to collaterally attack the 2011 Order by now arguing that the legal costs awarded therein were excessive, that the $17,607 awarded did not constitute common expense arrears under sections 84 and 85 of the Act and that his payment of the Unit’s share of the regular building-wide window special assessments proves the invalidity of the added window installation costs for the Unit awarded in the 2011 Order.

[40] The plaintiff’s allegations that:

(a) he owed no regular monthly common expenses at the time of the 2011 Order;

(b) CCC 396 was out of time in the registration of the lien against the Unit on December 28, 2011;

(c) Tthe entry to his unit by CCC 336 representatives to change the windows breached his rights under the Canadian Bill of Rights; and

are legally and factually incorrect on the evidence.

[41] The access granted in the 2011 Order was not a breach of the plaintiff’s rights under the Canadian Bill of Rights.

FAILURE TO ARTICULATE CONDOMINIUM ARREARS OF $30, 219

[42] The plaintiff on the evidence incorrectly alleges he failed to receive an articulation of the component parts of the subsequently increased condominium arrears in the amount of $30,291, which includes the $17,607 from the 2011 Order. (the “Condominium Arrears”)

[43] The lawyers of CCC 336 sent several written notices to the plaintiff articulating the accumulating liability.

[44] CCC 336 on December 16, 2011 had its lawyers send a Notice of Lien to Owner to Mr. Nicholas advising that CCC 336 claimed a lien against the Unit in the amount of $20,678.69 consisting of:

(a) $8,181.20 awarded in the 2011 Order for the added costs to replace the Unit’s windows;

(b) $9,425.84 costs awarded in the 2011 Order;

(d) unpaid condominium fees of $294.55 per month, totalling $883.65 for the months of October to December 2011;

(e) $185.28 of interest for the common expense arrears pursuant to the condominium by-law;

(f) $10 administration charge; and

(g) $640.00 additional legal fees in the attempted collection of the above liability.

[45] Mr. Nicholas paid nothing to CCC 336 which accordingly had its lawyer issue a Notice of Sale under Lien on March 23, 2012, in the amount of $22,333 plus interest. That notice articulates the elements of debt consisted of:

(a) $8,181.20 for the additional costs for window replacement awarded in the 2011 Order;

(b) $9,425.84 for legal costs awarded in the 2011 Order;

(d) $354.41 for interest on unpaid common expense arrears;

(e) $1,292.72 for additional legal fees since the 2011 Order to December 16, 2011;

(f) $1,370 for legal fees and disbursements in relation to the interim lien and power of sale proceedings; and

(g) $10.00 administrative charge.

[46] CCC 336’s lawyers by letter dated June 27, 2012, notified Mr. Nicholas that the then outstanding arrears owed to CCC 336 totaled $26,134 and consisted of:

(a) $17,607 awarded in the 2011 Order;

(b) $2,175 of unpaid monthly common expenses for the period October 2011 to June 2012;

(d) $1,171 for interest;

(e) $80 administrative charges;

(f) $4,041 legal fees incurred by CCC 336 to enforce the lien and the 2011 Order; and

(g) provided him with a copy of the Unit’s condominium ledger account.

[47] On cross-examination, Mr. Nicholas admitted:

(a) that in July and August 2012, he owed and was prepared to pay CCC 336 the full amount of the registered lien in the amount of $19,783; and

(b) his liability to CCC 336 of $28,311 as of August 2013.

[48] The plaintiff received the above breakdowns of the amounts claimed by CCC 336. He knew what was being claimed as to the Condominium Arrears aside from the $1,908 in excess of the above $28,311 he admitted as owing to CCC 336.

CCC 336 PROCEEDING

[49] On November 30, 2012, CCC 336 had its lawyers commence a proceeding by statement of claim against the plaintiff and TD (the “CCC 336 Proceeding”) TD had a registered Charge against the Unit. (the “Charge”).

[50] CCC 336’s registered condominium lien had priority over TD’s registered charge of the Unit pursuant to s. 86 of the Act.

[51] CCC 336 in that claim sought judgment at trial for the indebtedness owing by the plaintiff as to the Unit, interest, substantial indemnity costs and possession of the Unit. The quantum of arrears liability is not stated in the statement of claim.

[52] The plaintiff filed a defence on February 8, 2013 in the CCC 336 Proceeding challenging the 2011 Order alleging he had received inadequate notice of that hearing, despite that order’s validation of service of CCC 336’s application on him. He alleges therein that all common expenses were paid in full, which was untrue, as he had neither paid the 2011 Ordered $17,607 common expense arrears nor the subsequent associated costs of CCC 336.

[53] The plaintiff’s statement of defence repeats his arguments as to:

(a) the replacement windows decreased the Unit’s interior air flow;

(b) the invalidity of building code requirements to justify the window model installed;

(d) the invalidity of the condominium lien against the Unit because he had paid all regular monthly common expenses; and

(e) the categorization of the $17,607 as common expense arrears was unjustified.

TD PAYMENT OF CONDOMINIUM ARREARS TO CCC 336

[54] The plaintiff on these summary judgment motions has filed proof that TD paid the Condominium Arrears to CCC 336 totalling $30,219.72, by:

(a) TD’s direct payment of $22,189.59 on April 25, 2013 to CCC 336; and

(b) MFS as TD’s property manager’s payment of $8.030.13 on June 11, 2013 to CCC 336.

[55] The plaintiff produced copies of these two payment cheques on these motions.

[56] The plaintiff’s repeated allegations that:

(a) the above payments to CCC 336 have never been proven;

(b) TD as mortgagee only paid $22,189 to CCC 336;

(d) he has never been provided with a breakdown or basis of the amount claimed in excess of the 2011 Order’s $17,607; and

(e) the $30,219 subsequently claimed by TD amounts to excessive legal fee charges by CCC 336;

are disproven by the evidence on these motions.

[57] Upon receipt in June 2013 of such payment of the Condominium Arrears from and on behalf of TD, CCC 336 had its lawyers file a notice of discontinue of the CCC 336 Proceeding and discharged its lien against the Unit. The plaintiff is incorrect that such discontinuance and lien discharge establishes the validity of his defence to the CCC 336 Proceeding and the invalidity of the Condominium Arrears liability claimed against him.

[58] The $12,612 portion of the $30,219 Condominium Arrears in excess of the 2011 Ordered $17,607, is not just legal fees and legal expenses, as indicated in the above notices from the condominium to the plaintiff. That additional amount also includes liability for monthly compound interest charges, administrative costs of CCC 336 and CCC 336’s costs for a locksmith.

[59] The remaining legal charges of CCC 336 after the 2011 Order;

(a) in attempting to collect payment;

(b) in negotiations with the plaintiff to obtain payment;

(d) in registering a lien;

(e) in commencing and serving the CCC 336 Proceeding;

(f) in dealings with TD as to the Condominium Arrears claimed;

(g) in arranging for payment of the same;

(h) for preparing and filing the notice of discontinuance of the CCC 336 Proceeding, and;

(i) registering a discharge of the lien;

(j) together with incidental communications;

do not appear to exceed “all reasonable legal fees and legal expenses”, which is what is recoverable under s. 85 of the Act.

[60] The plaintiff’s admission on cross-examination that he owed CCC 336 $28,311 as of August 2013, leaves $1,908 of the Condominium Arrears in issue as to his liability to CCC 336, as that is the only portion of the $30,219 Condominium Arrears not admitted to by the plaintiff.

[61] Subsequent court orders against the plaintiff must be considered as to the $1,908.00 portion of the Condominium Arrears.

CLAIM OF PLAINTIFF AGAINST TD

[62] As against TD, the plaintiff alleges that:

(a) CCC 336 in January 2013 sued Mr. Nicholas claiming he owed the condominium $17,607, but never obtained judgment against him;

(b) TD was his mortgagee and demanded he pay $30,291 that it had paid to CCC 336 on his behalf for reasons which were unclear, as its notice of demand referred to “common expense arrears” which could not be correct because that amount represented in excess of eight years of Unit common expenses;

(d) TD lacked his consent to pay CCC 336, $30,291. TD in fact only paid CCC 336 $22,187, not $30,391;

(e) TD lacked proof it paid $30,291 to CCC 336;

(f) TD held no judgment establishing that he owed $30,291 to CCC 336 when TD in July 2013 sued Mr. Nicholas for that amount;

(g) The TD statement of claim against Mr. Nicholas in fact sought possession of the Unit and judgment for $74,891.37;

(h) The TD statement of claim was issued on July 15, 2013 in Milton and not in Ottawa where it should have been issued. That resulted in delay in filing Mr. Nicholas’ statement of defence prior to which default judgment was signed against him without proof of payment of the $30,291 TD allegedly paid to CCC 366;

(i) TD’s default judgment dated October 1, 2013 required Mr. Nicholas to pay the “common expense arrears” of $30,291, the then TD mortgage balance of $49,923 and $1,988 in costs, for a total of $74,891;

(j) The plaintiff’s lawyer on October 17, 2013 requested that TD provide a breakdown and proof of payment of the $30,291 allegedly paid to CCC 336 but received no response thereto in contravention of ss.22(2) of the Mortgages Act, R.S.O. 1990, c. M 40, which prohibits further mortgage enforcement until full compliance with that disclosure request;

(k) Despite the freeze created under ss. 22(2) of the Mortgages Act, on January 17, 2014 TD physically took possession of the Unit from Mr. Nicholas, continued to remove monthly mortgage payments from his bank account until mid-April 2014 and then sold the Unit on July 11, 2014 for $205,000, which was some $30,000 below its then market value;

(l) TD had no valid claim against him and was not entitled to evict him from the Unit on January 17, 2014;

(m) TD between July and November 2014 refused to pay Mr. Nicholas the net proceeds of sale unless he signed a release and indemnity in favor of TD;

(n) On November 28, 2014, TD brought a motion in Milton to pay the net proceeds of sale in the amount of $100,236.87 into court. TD refused Mr. Nicholas’ request for an adjournment or a transfer to Ottawa despite being advised his income was limited to social assistance monthly benefits of $656, could not therefore afford to travel to Milton and needed more time to retain legal counsel through Legal Aid;

(o) The plaintiff disputes TD’s calculation of the surplus in his mortgage account;

(p) The plaintiff is not responsible for TD’s legal fees of $14,786.35;

(q) The plaintiff is not responsible for TD’s costs incurred in the sale of the Unit consisting of real estate fee of $9,430, HST of $1,225.90 and a property appraisal fee of $339;

(r) He is entitled to judgment for at least $192,257.92, being his fair share of the sale price of the Unit;

(s) The plaintiff is entitled to judgment for his substantial accommodation, moving and storage fees incurred since his eviction from the Unit on January 17, 2014 from CCC 336 to TD; and

(t) The plaintiff relies on the Canadian Bill of Rights, R.S.C. 1970, App. III, namely “the right of the individual to security of the person and enjoyment of property” and s. 22 of the Mortgages Act.

TD MOTION FOR SUMMARY JUDGMENT

[63] The Toronto-Dominion Bank (“TD”) seeks summary judgment to dismiss the statement of claim pursuant to Rule 20.04 of the Rules of Civil Procedure on the he grounds that:

(a) The issues regarding the alleged non-payment of the funds owing to CCC 336, the payment of same by TD and the consequential default under the TD mortgage or charge were reviewed and finally decided in the decision of Marrocco J.;

(b) Mr. Nicholas’ allegation that TD acted improperly and that its proceedings were illegal, were issues in Mr. Nicholas’ motion to set aside the judgment obtained by TD and were considered and rejected in the court’s dismissal of the plaintiff’s motion to set aside the default judgment obtained by TD;

(c) The concerns raised by Mr. Nicholas in this action were before the court in his motion to have surplus proceeds of sale funds paid out of court which resulted in a final order;

(d) The prior court decisions granting TD judgment, the dismissal of Mr. Nicholas’ motion to set aside TD’s Judgment and the order to pay the surplus sale proceeds into Court are the same issues advanced by Mr. Nicholas and determined in TD’s initial action;

(e) The subject matter of this proceeding against TD is therefore barred on the principle of res judicata;

(f) The judgment of Gray J. and the order of Marrocco J. were both final orders and finally disposed of the issues in this statement of claim. There was no appeal of that final judgment or order within the requisite time period;

(g) TD Bank and Mr. Nicholas were both parties to the prior action which was disposed of by final order;

(h) Mr. Nicholas and TD Bank were parties in the CCC 336 Proceeding which concluded in a final order;

(i) In the alternative, the parties in this action were at least privy to the parties in the prior action brought by CCC 336. As a result, the requirement of mutuality is satisfied; and

(j) The preconditions of issue estoppel are met in this case. As a result, this action is barred pursuant to application of the doctrine of res judicata.

PROCEEDINGS BETWEEN TD AND THE PLAINTIFF

[64] By letter dated June 12, 2013, TD demanded payment of the $30,219 Condominium Arrears from the plaintiff together with its legal costs in the amount of $1,039.55. The demand stated the plaintiff had 15 days to pay the same, failing which:

(a) TD retained the option of requiring immediate payment of the remaining mortgage balance and to exercise its rights and remedies; and

(b) TD’s counsel had instructions to proceed to realize on the Unit without further notice.

[65] The plaintiff failed to pay the Condominium Arrears and above costs to TD as demanded.

TD STATEMENT OF CLAIM

[66] On July 15, 2013, TD engaged Toronto counsel who issued a statement of claim in Milton, Ontario against Mr. Nicholas. (the “TD Proceeding”) TD claimed therein:

(a) possession of the Unit; and

(b) judgment in the amount of $74,398 for indebtedness owing under the Charge together with interest, consisting of:

(i) $43,923 of principal owing under the Charge;

(ii) $151 interest owing under the Charge;

(iii) $30,219 common expense arrears it paid to CCC 336, being the Condominium Arrears;

(iv) $64 for a tax certificate;

(v) $39 for an inspection fee; plus

(vi) interest at the rate in the Charge of 2.950 % per annum to judgment or payment.

[67] It is noted that TD in the TD Proceeding statement of claim did not claim unpaid monthly mortgage payments prior to its demand of payment of the Condominium Arrears and the advanced charge balances of principle and accrued interest.

[68] In the TD Proceeding, TD alleged in its statement of claim that:

(a) it was permitted by the terms of the Charge to pay common expenses owed by Mr. Nicholas to the condominium corporation which TD paid to CCC 336;

(b) upon default of payment under the Charge, the remaining principal and interest owing under the Charge becomes due and payable;

(c) Mr. Nicholas defaulted in the payment due under the Charge as of June 12, 2013 and accordingly had defaulted under the Charge.

[69] Pursuant to its standard charge terms and as deemed to contain pursuant to s. 88(1) of the 1998 Act, TD was entitled to:

(a) pay the Condominium Arrears to CCC 336;

(b) claim the then outstanding balance due under the mortgage upon the plaintiff’s failure to reimburse TD for the Condominium Arrears paid to CCC 336; and

(c) add its payment of the Condominium Arrears to the mortgage indebtedness upon which it was entitled to charge interest pursuant to the Charge.

[70] TD attempted unsuccessfully to serve the plaintiff with its statement of claim on July 16, 17 and 21, 2013.

[71] TD issued a Notice of Sale Under Mortgage on July 23, 2013 in which it claimed:

(a) the Condominium Arrears;

(b) the amount of the defaulted Charge balance of $43,934;

(d) interest of $158; and

(e) inspection fees and tax certificate of $103;

for a total of $77,605. That notice states the plaintiff had until August 30, 2013 to pay the indebtedness claimed.

[72] The timing of that notice is in compliance with the 15-day time limit as stated in s. 32 of the Mortgages Act. The sale of the Unit occurred long after the 35-day stay provided in s. 32. The combined 50-day stay therefore created under s. 32 of the Mortgages Act, R.S.O. 1990, c M. 40. (the “Mortgages Act”)was not thereby breached by TD.

[73] TD obtained an ex-parte order for substituted service of the statement of claim on August 8, 2013. (the “Order of Substituted Service”)

[74] Obtaining the Order of Substituted Service on August 8 contravened the stay period under s. 42(1) of the Mortgages Act, as the stay period continued until August 30, 2013 pursuant to the above July 23 Notice of Sale Under Mortgage. There is no evidence of an order permitting that step by counsel for TD pursuant to s. 42(2) of the Mortgages Act. I will return to this point later in this decision.

[75] TD had the plaintiff noted in default and obtained default judgment in the TD Proceeding against the plaintiff on October 1, 2013, one month after expiration of the s. 42 stay period. That default judgment consisted of:

(a) An award of indebtedness in the amount of $74,891.37, plus costs in the amount of $1,988.75, for a total of $76,880.12; and

(b) Possession of the Unit from the plaintiff (the “2013 Judgment”).

[76] The amount awarded in the 2013 Judgment includes:

(a) The $17,607 owed of the 2011 Order; and

(b) The Condominium Arrears, which includes the remaining $1,908 thereof not admitted owing by the plaintiff.

[77] TD sent the plaintiff a copy of the 2013 Judgment and its notice demanding possession of the Unit on October 9, 2013.

[78] On these summary judgment motions the plaintiff attaches to his affidavit a four paragraph alleged defence to the TD Proceeding. In that document, the plaintiff alleges that he was current in paying all monthly mortgage payments to TD and denies that TD paid the Condominium Arrears to CCC 336.

[79] That document contains no style of cause and could not have been filed in that format. It bears no court filing stamp and has an unclear date in October. The plaintiff’s affidavit does not allege that document was filed in court or served. I therefore conclude that document was not issued or served as a statement of defence in the TD Proceeding.

[80] On October 17, 2013, the plaintiff requested that TD provide a breakdown and proof of its payment of the Condominium Arrears to CCC 336, pursuant to section 22(2) of the Mortgages Act.

[81] By October 17, 2013, the plaintiff had already received the above several notices from CCC 336 giving him the breakdown of the Condominium Arrears. CCC 336 had already advised him that it had received payment of such arrears from TD. At that time, the plaintiff knew that CCC 336 had discharged its lien of the Unit and as such discontinued the CCC 336 Proceeding against him and TD.

[82] The plaintiff had no reason to believe that CCC 336 discontinued the CCC 336 Proceeding, discharged its lien against the Unit and thereby released its priority over TD for any reason other than its receipt of payment of the Condominium Arrears.

[83] The plaintiff alleges that the default 2013 Judgment is invalid because it is not signed by and does not contain the name of the Judge alleged to have granted it. There is no merit to this argument as the 2013 Judgment was granted on requisition by TD and signed by the office of the Registrar for default in filing a statement of defence pursuant to R. 19.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[84] TD caused the plaintiff to be evicted from and obtained possession of the Unit on January 17, 2014.

[85] The plaintiff brought a motion to set aside the 2013 Judgment obtained on default. That motion was argued and dismissed in Ottawa on February 28, 2014 before Beaudoin J. (the “Dismissal Order”)

[86] The above breach by TD of the s. 42(2) stay in obtaining the August 8 Order of Substituted Service was an argument the plaintiff could have made on this above unsuccessful motion to set aside the 2013 Judgement.

[87] The plaintiff did not appeal the February 28, 2014 decision of Beaudoin J.

APPRAISAL, LISTING AND SALE OF UNIT

[88] TD obtained a written appraisal of the Unit from Pigeon-Roy Real Estate Group Ltd. on May 7, 2014. That appraisal concluded that the estimated value of the Unit as of May 6, 2014 was $210,000, based upon on a low and high appraised value of $205,000 and $215,000.

[89] Of note is the time the plaintiff had to retain his ownership of the Unit by payment:

(a) of the 2011 Order to CCC 336 since October 2011;

(b) of the increasing indebtedness owed to CCC 336 claimed in November, 2012 in the CCC 336 Proceeding;

(d) of the Condominium Arrears and the Charge balance between August, 2013 and October 2013.

[90] On May 8, 2014, TD signed a multiple listing agreement of the Unit with Keller Williams Ottawa Realty, with an asking price of $219,900 and a real estate commission rate of 6%.

[91] On June 2, 2014, TD entered into an agreement of purchase and sale of the Unit in the amount of $205,000 with a closing date of July 11, 2014.

[92] TD calculated the net sale proceeds of the July 11, 2014 sale of the Unit after payment of its debt and expenses was $100,236.67.

[93] On December 18, 2014, TD obtained an order permitting its payment into court of such $100,236.67 net proceeds of sale, less its cost of $750.00, resulting in a net payment into court of $99,486.67. (“Payment In Order”).

[94] By motion, the plaintiff obtained an order for payment out of court to himself of the $99,486.67 on January 15, 2015. (the “Payment Out Order”) .

ANALYSIS

ORDERS FOR PAYMENT IN AND PAYMENT OUT

[95] The Payment In Order and the Payment Out Order are irrelevant as to the merits of these motions and whether a trial is necessary. The subject matter of those motions did not address nor determined issues between the parties as to prior events such as how much was owed to CCC 336, owed to TD bank, improvident sale etc. Those matters were not issues on such motions giving rise to those two orders.

RES JUDICATA

[96] CCC 336 and TD argue this proceeding should be dismissed based upon the doctrines of res judicata, issue estoppel or cause of action estoppel.

[97] The doctrine of res judicata applies where a judgment rendered by a court of competent jurisdiction provides a conclusive disposition of the merits of the case and acts as an absolute bar to any subsequent proceedings involving the same claim, demand or cause of action. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time: Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (ONCA) at para. 19.

[98] The doctrine of res judicata is founded on a policy that a judgment between the same parties is final and conclusive, not only as to the matters dealt with, but also as to questions which the parties had an opportunity of raising: Canam, para. 28.

[99] The doctrine of res judicata prevents re-litigation of matters that have already been determined by a court of competent jurisdiction. There are two branches of the doctrine: cause of action estoppel and issue estoppel. Both branches are founded on the twin principles that the same party shall not be harassed twice for the same complaint and that there is societal value in the finality and conclusiveness of judicial decisions: Angle v. Minister of National Revenue, 1974 168 (SCC), [1975] 2 S.C.R. 248 (S.C.C.) at 267 and Britannia Airways Ltd. v. Royal Bank, 2005 1403 (ONSC) para. 12.

[100] The dual purpose behind the principle of res judicata are (a) the public interest that there should be an end to litigation and (b) no individual should be subjected to proceedings more than once for the same cause of action: Las Vegas Strip Ltd. v. Toronto (City) (1996), 1996 8037 (ON SC), 30 O.R. (3d) 286 (ONSC), para. 15 and Spencer Bower and Turner, The Doctrine of Res Judicata (2nd ed, 1969) at p. 10.

[101] There is a general principle that a judgment between parties to litigation is conclusive upon issues actually brought before the Court and upon any issues which the parties, exercising reasonable diligence, should have brought forward on that occasion.

[102] The Court requires the parties to the litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted as part of their case.

[103] The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time: Las Vegas (citing Henderson v. Henderson (1843), 3 Hare 100 at p. 115. 67 E.R. 313 at p. 319).

[104] The definitions of a cause of action includes:

(a) a claim in law sufficient to demand judicial attention;

(b) the “composite of facts necessary to give rise to the enforcement of a right”; Dukelow and Nuse, The Dictionary of Canadian Law, “Cause of Action. 1;

(c) the factual circumstances which give rise to a right to sue”; Walker, The Oxford Companion to Law (1980), “Cause of Action; and

(d) “the fact or set of facts which gives a person a right of action”; Black’s Law Dictionary (6th ed. 1990), “Cause of Action.

[105] A litigant cannot establish a new and fresh cause of action by advancing a new legal theory in support of a claim based upon essentially the same facts: Las Vegas, para. 24.

[106] Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle: Maynard v. Maynard, 1950 3 (SCC), [1951] 1 D.L.R. 241 (SCC) at 254 and Las Vegas, para. 24.

[107] There is a large and important difference between, on the one hand, a defence which is intimately related to the issues in the earlier litigation and, on the other hand, a separate litigation against a party to the earlier litigation, a claim which stands on its own separate facts and could have been brought at any time without reference to the issues in the earlier action: Greymac Properties Inc. v. Feldman (1990), 1990 6939 (ON SC), 1 O.R. (3d) 686 (Gen. Div.) p. 692.

[108] A defence not advanced in a previous action cannot be used or put forward as a claim in a subsequent action. A defendant who is sued must in the action in which he is sued put forward all defences which he has to the plaintiff’s claim. He cannot allow the action to go to trial upon a certain defence and when that defence fails, set up another and inconsistent defence by bringing an action to set aside the judgment: Glatt v. Glatt, 1937 8 (SCC), [1937] S.C.R. 347, at 350 and Britannia para. 20.

[109] The court in Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62 in the noted paragraphs stated:

[13]…… Even if the requirements for the doctrines of issue estoppel and res judicata were met, …… The underlying purpose of these doctrines (of issue estoppel and res judicata) is to balance the public Interest in finality of litigation with the public interest of ensuring a just result on the merits.

[15] ……However, the doctrines of res judicata and issue estoppel, as well as the rule against collateral attack and abuse of process, were developed to advance the ends of justice. They are intended to promote the orderly administration of justice and are not to be mechanically applied where to do so would work an injustice. See Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R 460, at paras 1, 19. 20 and 33.

[16] ……Even assuming that the motion judge erred in holding that res judicata and issue estoppel were not made out, he had discretion not to apply them if, taking into account the entirety of the circumstances, to do so would result in injustice: : Danyluk, at para. 80. The motion judqe exercised his discretion not to grant equitable relief for two reasons. They are: (1) there had not been a hearing on the merits and (2) the claim for compensation “is integrally tied to Ontario.”

CAUSE OF ACTION ESTOPPEL

[110] Cause of action estoppel prevents not only the same cause of action from being litigated again, but also bars claims which properly belonged to the subject matter of previous litigation: Maynard v. Maynard (1950), 1950 3 (SCC), [1951] S.C.R. 346 (S.C.C.).

[111] Expressed differently, “an adjudication of a particular set of facts does not raise an estoppel with respect to every cause of action which is subsequently based on the same facts, but only those claims which properly belonged to the first proceeding”: Sopinka, Lederman, Bryant, The Law of Evidence in Canada, 2nd ed. (Markham: Butterworths, 1999) at 1079 and Britannia, para. 13.

[112] Cause of action estoppel is not limited to an examination of the claims that were brought or properly belonged to the first action. A party cannot recast the claim arising out of the same facts using a different legal description without bumping up against the doctrine of cause of action estoppel and, if the parties or privies requirement is met, it will operate to bar the second action: Britannia, para. 18. (emphasis added)

ISSUE ESTOPPEL

[113] Issue estoppel applies to prevent re-litigation of issues that have previously been determined. The constituent elements are:

(a) the same question has been decided;

(b) the prior judicial decision was final; and

(c) the parties to both proceedings are the same, or their privies: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C), referencing, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 (S.C.C.) at 476-7 and Britannia, para. 19. (emphasis added)

[114] The requirements of issue estoppel are:

(a) that the same question has been previously decided;

(b) that the judicial decision which is said to create the estoppel was final; and

(c) that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceedings in which the estoppel is raised, or their privies: Angle v. Canada (MNR), 1974 168 (SCC), [1975] 2 S.C.R. 248 at 254, Canam, para. 19 and Brittania, para. 19. (emphasis added)

[115] The question out of which the estoppel is said to arise must have been “fundamental to the decision arrived at in the earlier proceedings”: Angle p.255.

[116] The $17,607 portion of the 2011 Order was fundamental of that order and the 2013 Judgment.

[117] Subject to privity as between CCC 336 and TD and the issue as to the 2011 Order and the 2013 Judgment being obtained on default, this Court finds that Mr. Nicholas is prevented from pursuing his claims against these defendants as to:

(a) the 2011 Order debt;

(b) the Condominium Arrears paid by and effectively assigned to TD;

(d) the 2013 Judgment, based upon the plaintiff’s unsuccessful motion to set aside the 2014 Dismissal Order;

on the basis of the principles as to res judicata, cause of action estoppel and/or issue estoppel.

[118] The 2011 Order monetary award is contained in the 2013 Judgment. The issues in the proceedings leading to the 2011 Order and the 2013 Judgment are inter-related. The claims in this proceeding involve the facts and issues which formed basis of the CCC 336 Application and the TD Proceeding and as will later be seen, were placed before the court by the plaintiff and not accepted in 2004 as determined by the Dismissal Order.

[119] The 2011 Order and the 2013 Judgment are final as against the plaintiff, as confirmed by the 2014 Dismissal Order.

[120] The relief granted in the 2011 Order and the 2013 Judgment have repeatedly been considered and determined by the courts and may not be challenged again in this proceeding.

PRIVITY AS BETWEEN CCC 336 AND TD

[121] TD was not a party to the CCC 336 Application against the plaintiff. CCC 336, the plaintiff and TD as charge were parties in the CCC 336 Action which was ultimately discontinued. CCC 336 was not a party in the TD proceeding resulting in the 2013 Judgment and the 2014 Dismissal Order.

[122] There are a number of factors which tie the originating and resulting debt of the 2011 Order and the 2013 Judgement as well as the rights and obligations in relation to those matters together, as between the defendants CCC 336, TD and the plaintiff.

[123] A condominium lien for arrears under s. 86 (1) of the Act has priority over every registered encumbrance. CCC 336’s lien of the Unit therefore took priority ahead of the TD Charge.

[124] Non-payment of condominium expenses constitutes default under TD’s charge pursuant to the standard charge terms and is added to the Charge debt as so deemed by the 1998 Act.

[125] TD on the evidence presented by the plaintiff and confirmed by CCC 336, paid the Condominium Arrears to CCC 336 as claimed in the condominium’s lien of the Unit and its Notice of Power of Sale, as permitted by its standard Charge terms or as deemed and permitted by s. 88 of the Act, namely $30,219 by June 25, 2013.

[126] S. 88 of the Act deems the Charge of the Unit to contain provision that:

(a) owners default in payment of common expenses constitutes default under the charge;

(b) entitles the mortgagee to pay common expenses arrears, interest thereon and all reasonable expenses incurred by the condominium in attempting to collect such arrears; and

(c) such payments of the above by the mortgagee to the condominium, including all reasonable costs and expenses of the mortgagee in respect of such payment, become secured by and are payable with interest under the charge.

[127] The many issues now presented in response to these summary judgment motions by Mr. Nicholas as to CCC 336, including the validity of the 2011 Order, his level of condominium indebtedness, the level of interest thereon and the legal costs charged as to the Condominium Arrears and the enforcement thereof, were or could have been before the court in the 2014 Dismissal Order’s rejection of such arguments on the plaintiff’s motion to set aside the 2013 Judgment in the TD Proceeding.

[128] Privity is a possible exception to the requirement that the orders granted to be binding in the case of res judicata and estoppel, must have been parties to the proceeding(s) giving rise to the order(s).

[129] Privity is defined as “a sufficient degree of identification between the two the make it just to hold that the decision to which one was a party should be binding in proceedings to which the other is party.”: Gleeson v. J. Wippell & Co., [1977] 3 All E.R. 54 (Ch.) at 60 and Las Vegas, para. 32.

[130] Privity of interest rests on the concept of mutuality, namely that there must be a sufficient degree of connection or identification between the two parties, thus making it fair to permit a party to rely on the earlier determination involving the other party. The determination of privity is made on a case-by-case basis because, “It is impossible to be categorical about the degree of interest which will create privity”: Machin v. Tomlinson (2000), 2000 16945 (ON CA), 51 O.R. (3d) 566 (Ont. C.A.) at paras. 15, 20, 22-24 and Britannia, para. 52.

[131] There are few guideposts to assist with the determination of whether parties are privy in interest, but a helpful consideration is whether the party seeking to take advantage of the judgment would have been bound had the judgment gone the other way: Sopinka, Lederman, Bryant, The Law of Evidence in Canada at 1090 and Britannia para. 53.

[132] Privity may be established on the basis that both parties shared an identical interest in the substance and outcome in the first action: Bank of Montreal v. Mitchell (1997), 1997 12306 (ON SC), 143 D.L.R. (4th) 697 (Ont. Gen. Div. [Commercial List]); affd (1997), 1997 14484 (ON CA), 151 D.L.R. (4th) 574 (Ont. C.A).

[133] Privity is established if there is a sufficient degree of identification between two parties such that it would be just to hold that the decision rendered against one should be binding on the other. The concept of privity is somewhat elastic and thus, the determination as to whether there is privity must be made on a case by case basis: Martinez de Morales v. Lafontaine-Risk Medical Group Ltd. 2009 31991 (ONSC), paras. 19 and 25 and 1196303 Ontario Inc. v. Glen Grove Suites Inc., 2013 ONSC 7284, 2013 ONSC7284, para 120.

[134] Where a privy of another party has knowledge of prior proceedings, a clear interest in the proceedings, and the ability to intervene as a participant to protect its interest, but chooses to stand by, the non-party will be estopped by its conduct from proceeding to a trial in a subsequent proceeding on the same issue or issues that have already been determined: Martinez de Morales, para. 25.

[135] The privity principle reflects a broad view that the law does not countenance a ‘lie-in-the-weeds” attitude by those whose interests are so intimately connected on a matter, such as where companies intimately connected in interest are used by a common controlling mind in combination to secure a court-approved benefit, they cannot subsequently be used by the common controlling mind to avoid performing the obligations which arose from their earlier combined action: Glen Grove Suites, para 121.

[136] The definition of privity in Black’s Law Dictionary, 8th edition, includes the following:

The connection or relationship between two parties, each having a legally recognized interest in the same subject matter, such as a transaction, proceeding, or piece of property; mutuality of interest such as privity of contract.

[137] That definition of privy from Black’s within the context of litigation, includes a successor in interest to anyone having a derivative claim.

[138] TD’s claim against the plaintiff arouse from its payment of CCC 336’s claim for the Condominium Arrears against the plaintiff, the lienable interest that created in the Unit under s. 85 of the Act and the s. 86 priority of that lien against prior encumbrancers like TD.

[139] Payment by TD of the Condominium Arrears resulted in an assignment of that debt receivable to TD and thereupon became a liability owed under the TD Charge and enforceable by TD. By payment thereof to CCC 336, TD obtained a derivative claim as to the Condominium Arrears.

[140] Had the plaintiff successfully defended the CCC 336 Application and/or the TD Proceeding:

(a) TD would not as privy have been able to rely upon and claim estoppel as to the debt determined in the 2011 Order; and

(b) CCC 336 would not as privy have been able to rely upon and claim estoppel as to the Condominium Arrears debt determined in the 2013 Judgment.

[141] The plaintiff in fact acknowledges in his factum that privity exists between CCC 336 and TD as to the Condominium Arrears. He states therein that TD’s payment of and CCC 336’s receipt of the Condominium Arrears is an issue which “ties CCC 336 and the Bank together in the current proceeding” and accordingly, “the mortgage action of the Bank against Mr. Nicholas cannot be viewed separately from the actions of CCC 336.”

[142] The plaintiff similarly in his affidavit filed on his 2014 motion to set aside the 2013 Judgement states: “The current lawsuit by the plaintiff (TD) is a continuation of the legal action started by CCC 336 on the basis that there was a law in Ontario prohibiting opening windows on high-rises beyond 10 c.”

[143] Based on the above analysis, authorities, the evidence, and the breadth of circumstances as to which it may be applied, I find privity as between CCC 336 and TD as to the 2011 Order and the 2013 Judgment, as confirmed by the 2014 Dismissal Order, the effective assignment of the Condominium Arrears to TD under the standard charge terms or s. 88 of the Act and the fact that each proceeding of these inter-related issues was against the plaintiff.

DISMISSAL MOTION AND ORDER AS TO THE DEFAULT 2013 JUDGMENT

[144] The plaintiff alleges that the determinations contained in the 2011 Order and the 2013 Judgment may now be placed in issue in this proceeding because such order and judgment were obtained on default with the result that the issues therein have not therefore been adjudicated on their merits. That argument ignores the court’s rejection of his many arguments on his motion resulting in the 2014 Dismissal Order.

[145] The plaintiff relies upon Hogue v. Montreal Trust Co. of Canada, 1997 NSCA 153, 1997 1465 (NS CA), p. 11 and 12 and Angle, p. 255, 257, in arguing that:

(a) res judicata has a more limited application to default judgments;

(b) res judicata does not apply if new and relevant evidence has become available since the previous court decision; and

(c) issue estoppel can be applied only if the issue to be barred has clearly been decided by the previous court decision.

[146] The plaintiff’s authorities do not support his interpretation of and his statement as to “b” above. The court’s reference in Hogue as to “new” evidence relates to the use thereof to set aside a final decision on appeal and as a factor in determining whether the matter could have and should have been raised in the prior proceeding resulting in the challenge of the order being challenged.

[147] The court in deciding whether to exercise its discretion in granting equitable relief of issue estoppel and res judicata may however consider the surrounding circumstances, including whether the prior decision was obtained on default or whether it involved a hearing on the merits: Antim, para. 16.

[148] Default judgments will support both issue estoppel and cause of action estoppel however the full vigour of these doctrines may not always apply. One reason is that it is not a judgment actually determined or pronounced by the courts. A conservative application of estoppel may be appropriate in the case of default judgments: Lange on The Doctrine of Res Judicata in Canada, Butterworth, p. 191 and 192.

[149] Various courts have applied issue estoppel founded upon a default judgment: T&D Roofing Ltd. v. C.I.B. C., unreported, 29 June 1993, Saskatchewan Court of Queen’s Bench, action no. 112/1992 (Yorkton), [1993] Sask. D. 3711-01, Harland v. Williams, unreported, 11 May 1993, Vancouver Registry C896028, [1993] B.C.J. No. 1047, Brass Tacks Concrete and Drilling Ltd. v. Gateway Construction and Engineering Ltd. (2OOO), 151 Man. R. (2d) 284 (MBQB), Chackowskyv. Precision Toyota Ltd (1990), 1990 11187 (MB QB), 64 Man.R. (2d) 156 (MBQB) and Wawanesa Mutual Insurance Co. v. Carson, unreported. June 16, 2000, action 9703-17288 (Edmonton), [2000] Alta. D. 770.69.60.20-01.

[150] A default judgment can give rise to cause of action estoppel: Kok Hoong v. Leong Cheong Kweng Mines Ltd (1963), [1964J A.C. 993 at 1012, [1964] 1 All ER. 300 (P.C). and Pinos, Timothy. “Res Judicata Redux.” Osgoode Hall Law Journal 26.4 (1988): 713-756, p. 737.

[151] The plaintiff’s liability for:

(a) the $17,607.04 awarded in the default 2011 Order; and

(b) the $76,880.12 awarded in the default 2013 Judgment which includes the $30,219.72 Condominium Arrears together with the principle and interest owed under the charge and related costs

were the central issues in those proceedings and resulted in that default order and judgment.

[152] Of central importance as to the 2011 Order and the 2013 Judgment being obtained on default is the plaintiff’s unsuccessful 2014 motion to set aside the 2013 Judgment and specifically the issues the plaintiff raised on that motion against CCC 336 and TD and why the basis of the 2011 Order and the 2013 Judgment were alleged to be invalid claims against the plaintiff.

[153] The plaintiff served a notice of motion and two lengthy affidavits on his February 28, 2014 motion to set aside the 2013 Judgment.

[154] Beaudoin J. did not issue reasons for the Dismissal Order. While the absence of reasons is important, what is noteworthy are the many arguments the plaintiff presented in his motion affidavits involving the CCC 336 Application, the 2011 Order, the CCC 336 Proceeding, the TD Proceeding and the 2013 Judgment, which are now repeated in the statement of claim herein.

[155] The plaintiff’s arguments against CCC 336 on that 2014 motion to set aside the 2013 Judgment were that:

(a) The breaches of legal procedures, misrepresentations of legal statutes and the lack of evidence warranted setting aside the 3013 Judgment;

(b) all regular condominium common expenses and municipal tax liability for the Unit were fully paid;

(c) the lien registered by CCC 336 on the Unit in December, 2011 was invalid. While admitting that his October and November 2011 common expenses fees were not paid at the time the lien was registered, CCC 336 would not take subsequent monthly fee payments after the registration of its lien unless he paid almost $20,000 which was an unrealistic amount, so he stopped paying common expenses until payment of all monthly common fees in August 2012. His non-payment for the months October to December 2011 was accidental;

(d) CCC 336’s lien therefore was only for 3 months unpaid common expenses and did not include the $17,607.04 amount awarded in the 2011 Order. That higher amount was only later relied upon as part of the lien amount by CCC 336;

(e) CCC 336 failed in its obligation to advise him that his December 2011 cheque for 2 months of condo fees was returned NSF by the bank and the basis of the lien was therefore artificially created. The $30,219.72 claimed therefore is probably excessive legal fees charged;

(f) he accordingly owed not arrears of common expenses and was not indebted to CCC 336;

(g) the new windows in CCC 336 were to be financed by special condominium assessments. The special assessments were levied and paid for the Unit. The plaintiff therefore has paid for the windows installed in the Unit;

(h) the replacement windows selected by the Board and installed in the Unit provide insufficient air flow, thus requiring he purchase air conditioners which he does not like and which are environmentally inappropriate;

(i) contrary to the statements from CCC 336’s lawyer, there is no law limiting window openings and therefore justifying the Board’s selection of the widows installed. Such misinterpretation of the law undermines the justification of and invalidates the $30,219.72 charges against the plaintiff , the Unit and now relied upon by TD;

(j) the 2011 Order bears a stamp but not the stamp of the Superior Court which must not come from that court and is therefore invalid;

(k) the legal fees awarded in the 2011 Order cannot as stated in that order constitute common expenses and the amount thereof awarded of $9,425 are excessive;

(l) the 2011 Order’s award of $8,181.20 as the “additional cost of replacing the windows” is excessive considering his payment of the condominium special assessment levies to replace windows and which totalled $3,505.60;

(m) there is no prior judgment determining him liable to pay the Condominium Arrears of $30,219.72 or converting that amount into arrears of condominium common expenses owed on the Unit;

(n) despite repeated requests, TD failed to advise as to the constituent elements of the $30,219.72 liability claimed as he requested;

(o) there is no proof TD paid the $30,219.72 to CCC 336, no cancelled cheque evidence of payment and if paid, he has no liability for such amount;

(p) despite CCC 336’s Notice of Lien and Condominium Lien claiming common expense arrears of $20,678 and $19,783 respectively, the condominium lien was registered and based on monthly condominium fees arrears for the months of October to December 2011 totalling $893.65 plus a $10 administration fee;

(q) the $30,219.72 described as common expenses arrears is mostly excessive legal fees regarding which there is no judicial determination; and

(r) CCC 336’s statement of claim issued against TD and himself in the CCC 336 Proceeding was subsequently discontinued. CCC 336 obtained no judgment in that proceeding. His statement of defence filed in response to that claim was accordingly successful.

[156] The plaintiff’s arguments against TD this 2014 motion to set aside the 2013 Judgment regarding the TD Proceeding, the 2013 Judgment and its order of possession were:

(a) the plaintiff was current in paying his monthly mortgage payments and had not therefore defaulted under the TD charge as alleged in his statement of defence served on TD after the date of the 2013 Judgment;

(b) given his full payment of all monthly condominium common expense to CCC 336 and his payment of CCC 336’s special levy of the Unit for window replacement in the condominium tower, the proceeding by TD is based upon the alleged arrears of $30,219.72 regarding which there is no evidence as to TD’s payment thereof to CCC 336 or its allocation as to the Unit;

(d) the 2013 Judgment awarding damages for the liability alleged owing and possession of the Unit is impossible and invalid;

(e) TD recorded arrears in his mortgage tax account of $22,189.59 and $8,069.68 as of April 25 and June 18, 2013 which is impossible as he always paid his municipal taxes;

(f) his lawyer failed to follow his instructions to move to have the default 2013 Judgment and the January 9, 2014 order of possession set aside resulting in the termination of that lawyer in December, 2013. TD failed to serve the 2013 Order on him until six weeks after the date thereof thus preventing him instructing his then legal counsel to move to set aside the 2013 Judgment and the October 25, 2013 order of possession prior to being evicted on January 17, 2014. The plaintiff cannot therefore be faulted for his failure to move to set aside the 2013 Judgment following the granting thereof;

(g) the Canadian Bill of Rights guarantee of his right of security of the person and enjoyment of property were violated by installation of the replacement windows and his eviction from the Unit on January 17, 2014;

(h) he was evicted from the Unit on January 17, 2014 based on unsubstantiated charges and flawed legal procedure;

(i) TD had no legal grounds for its proceeding against him; and

(j) the plaintiff accordingly sought re-possession of the Unit.

[157] In summary, the plaintiff on his above 2014 motion to set aside the default 2013 Judgment placed before that court his allegations in this proceeding as to the invalidity of:

(a) the claim of CCCC 336 as to the common expense arrears of the Unit;

(b) the 2011 Order;

(d) the Condominium Arrears being arrears of common expenses under the Act;

(e) his alleged default under his Charge to TD;

(f) TD response to his requests for information under s. 22(2) of the Mortgages Act and its resulting breach by action of that stay;

(g) the 2013 Judgment; and

(h) TD’s eviction of the plaintiff from the Unit;

(i) The breach of his rights un the Canadian Bill of Rights.

[158] Given the vast number of arguments the plaintiff failed to convince the Court to accept as evidenced by the Dismissal Order, the 2011 Order and the 2013 Judgment are not simply a default order and a default judgment and therefore to be considered as exceptions to the application of the principles of res judicata and issue estoppel as per the decisions in Hogue and Angle.

[159] The issues as to and the $17,607 of damages awarded as common expense arrears in the 2011 Order have been before the court and dealt with on three occasions prior to this proceeding, as reflected in the 2011 Order, the 2013 Judgment and the 2014 Dismissal Order.

[160] The issues as to the Condominium Arrears in the amount of $30,219.72, whether the plaintiff defaulted under his Charge with TD, the amount of his default and liability under that Charge including and in addition to the Condominium Arrears, have already been before the court and determined on two occasions in the 2013 Judgment and in the 2014 Dismissal Order prior to this proceeding.

[161] On cross-examination, the plaintiff admitted the Condominium Arrears liability to CCC 336, but for $1,908 thereof.

[162] On cross-examination. Mr. Nicholas admitted that all of his concerns regarding the 2011 Order and the amount collected by CCC 336 were raised in his defence of the TD Proceeding; unsuccessfully given the 2014 Dismissal Order.

[163] The 2013 Judgment and the 2014 Dismissal Order are final and not under appeal.

[164] Based on the above analysis and reasons, the equitable principles of res judicata and issue estoppel apply as to the 2011 Order and the 2013 Judgment despite each being obtained on default.

OTHER ISSUES

S. 22(2) OF MORTGAGES ACT

[165] The allegation of the plaintiff as to non-compliance with s. 22(2) of the Mortgages Act, namely that TD failed to respond to his requests for disclosure as to the component parts of the TD claim, is invalid.

[166] As indicated, the plaintiff received the above several communications from CCC 336 articulating the elements of the Condominium Arrears other than the final $1,908.

[167] The plaintiff had also previously received the 2001 Order which itemized the component elements therein as to the $17,607, being the additional costs to install the windows in the Unit and the costs on the application.

[168] TD had already obtained the October 1, 2013 Judgment for the Condominium Arrears which included the 2011 Ordered $17,607, the remaining principal, interest and costs of the Charge and an order for possession of the Unit prior to the plaintiff’s lawyer’s October 17 and November 19, 2013 requests for justification and reasons as to his alleged default under the TD charge and details as to the amount of the Condominium Arrears.

[169] The plaintiff had been advised by TD on June 12, 2013 that his non-payment of the Condominium Arrears would advance his obligation to pay the remaining portion of the Charge debt, entitle TD to full payment thereof and permitted the exercise of all remedies under the Charge.

[170] In response to the October and November 2013 requests by the plaintiff’s lawyer for indebtedness details claimed by TD, counsel for TD on October 21, November 14 and 23, 2013:

(a) advised the plaintiff that the Condominium Arrears had been paid to CCC 336 by TD;

(b) provided the plaintiff with fresh copies of TD’s above June 12, 2013 demand letter;

(c) provided the plaintiff with an April 29, 2013 email from counsel for CCC 336 detailing the breakdown of the Condominium Arrears; and

(d) provided the plaintiff with a copy of CCC 336’s ledger account for the Unit for the period September, 2011 to April, 2013 and a copy of TD’s Notice of Sale Under Mortgage with the breakdown of the component parts of what was owing including the $30,219 Condominium Arrears, together with the charge principle and interest balances.

[171] In addition, in its January 15, 2014 letter to the plaintiff, TD confirmed its earlier letter to the effect that the Condominium Arrears liability of $30,219 were common expense arrears, not municipal tax arrears and that the November 4, 2013 letter from CCC 336 indicating that common expense of the Unit were then current and paid was the result of payments to the condominium by TD.

[172] TD’s above responses to the plaintiff complied with its obligation under s. 22(2) Mortgages Act.

[173] The plaintiff cannot now argue that a trial is needed for TD’s failure to provide him with a breakdown of the liability claimed initially by CCC 336. He cannot now challenge his liability under the Charge as he unsuccessfully made that argument which was not accepted as indicated by the 2014 Dismissal Order.

SALE OF UNIT BELOW MARKET VALUE

[174] The only evidence as to the appraised estimated value of the Unit as of May 6, 2014 was presented by TD, namely $210,000 at the time of listing of the property.

[175] TD listed the Unit for sale with an Ottawa real estate agency on May 8, 2014 in the amount of $219,900.

[176] TD, using the services of the above real estate agency, marketed the sale of the Unit and accepted an offer to purchase the same on May 31, 2014 in the amount of $205,000. That transaction closed on July 11, 2014.

[177] On cross-examination as to his allegation that TD sold the Unit at less than its then fair market value, Mr. Nicholas admitted he did not have:

(a) an appraisal;

(b) an expert’s opinion with respect to the Unit’s property value;

(d) a written opinion as to the Unit’s then fair market value.

[178] The plaintiff has not presented the above or any reliable evidence as to the then value of the Unit on these motions.

[179] I have no qualified opinion or evidence that a $205,000 residential condominium needed to remain on the market in excess of 1 month in 2014 to test its true market value.

[180] The plaintiff has failed to rebut TD’s evidence as to the value of and appropriate procedure as to the marketing and sale of the Unit. No triable issue has been demonstrated thereon.

TD’S FAILURE TO ACCOUNT REGARDING SALE OF UNIT

[181] The plaintiff is incorrect in alleging TD failed to report its results on the sale of the Unit.

[182] In response to the plaintiff’s request for a breakdown/disclosure as to the July 11, 2014 closing of the sale of the Unit, dated September 26, 2014, TD’s lawyers sent the plaintiff on September 29, 2014 a copy of:

(a) the Agreement of Purchase and Sale;

(b) the Statement of Adjustment showing amount payable on closing after adjustments (taxes 2014, condo fees for July 2014 which states credit to vendor of $206,254.16 and balance due on closing after $3K deposit of $ 203,254.16.; and

(d) a Commission Statement which indicates real estate commission plus tax of $10,655.90.

[183] TD’s lawyer on October 6, 2014 sent the plaintiff:

(a) a Statement of Trust Funds and Surplus Accounting which indicates TD’s lawyers on closing received from the purchaser the adjusted balance due on closing of $203,254.16, from which was deducted;

(b) the balance of real estate fees of $7,655.90 (agent retained deposit of $3K);

(d) payment to TD of $179,671.00.

[184] TD Surplus Accounting shows its payment of:

(a) principle mortgage balance of $42,742.08;

(b) interest to July 11/14 of $ 347.76;

(d) appraisal fee of $339.00;

(e) property management fee of $13,827.28;

(f) condo arrears payment of $22,189.59;

Sub-total of $79,434.33.

CLAIMS AS TO EVICTION, POSSESSION AND UNIT SALE

[185] The plaintiff’s claims as to unlawful eviction, repossession and TD’s right to proceed to sell the Unit are collateral attacks of the 2013 Judgment including the portion therein as to the Condominium Arrears as well as the 2011 Order as to the judgment therein in the amount of $17,607.04.

RESULTING COSTS CLAIMED BY PLAINTIFF

[186] The relief sought by the plaintiff for alternate accommodation, moving, storage, legal and administrative fees have not been evidenced or proven in response to the two motions for summary judgment and are a collateral attack of the 2013 Judgment’s grant of possession to TD.

NEW EVIDENCE

[187] On the basis of Hague, the plaintiff argues that res judicata does not apply as new and relevant evidence has come to light since the 2013 Judgment and the 2014 Dismissal Order.

[188] The new alleged evidence the plaintiff argues he was unable to argue before this proceeding consists of:

(a) TD continuing to accept mortgage payments after obtaining the October 2013 Judgment, namely until May, 2014 when the undisputed charge balance was $42,742, not the $74,398.30 plus interest claimed in TD’s statement of claim nor the $74,891.37 awarded in the 2013 Judgment;

(b) TD only paid CCC 336 $22,189.50 and not $30,219,72 as claimed; and

(c) the above difference of $8,080.13 was paid to CCC 336 by the property manager MFS which thereby treated that agent as mortgagee.

[189] There is no issue for trial as to points (b) and (c) above. Those matters were determined by the 2013 Judgment, as confirmed the 2014 Dismissal Order.

[190] The balance owing under the Charge was determined by the 2013 Judgment, as confirmed by the Dismissal Order.

[191] Paragraph 61 (a) of the plaintiff’s September 3, 2015 affidavit in response to TD’s motion for summary judgment is incorrect in that:

(a) The bank in the TD Proceeding does not claim $77,000 as the principle balance due under the Charge; and

(b) The principle balance of the Charge claimed between July, 2013 to October 2014 decreases to the benefit of the plaintiff, presumably because TD as alleged continued to monthly withdraw mortgage payments from the plaintiff’s account after commencing the TD Proceeding for judgment of the Charge debt, the Condominium Arrears and for possession.

[192] As to paragraph 61(b) of the plaintiff’s affidavit, the plaintiff is correct that TD’s Mortgage Surplus Accounting statement in calculating a total surplus after receipt of proceeds of $100,236.67 from the Unit’s sale indicates that the bank’s payment to CCC 336 was only $22,189.59 and not the additional $8,181.20, for a total of $30,276.22.

[193] The plaintiff however has filed proof of payment to the lawyer of CCC 336 of the further $8,030.13 by MFS on behalf of TD.

[194] The plaintiff argues in paragraph 61(c) that new evidence includes the refusal by TD of his request to transfer the TD Proceeding to Ottawa. A motion to transfer this then mortgage enforcement proceeding regarding an Ottawa residence valued at $210,000 would undoubtedly have been successful. That request however was never presented by motion, despite the fact the plaintiff was represented by counsel part of the time. There is no merit to this argument.

[195] Accordingly, the plaintiff has presented no new evidence as to the 2013 Judgment justifying the non-application of res judicata or estoppel.

[196] As against TD, the plaintiff has not demonstrated that the 2013 Judgment, as confirmed by the 2014 Dismissal Order, was decided without available evidence as to the merits of the case as per Frederic A. Jones Inc. v. Toronto General Insurance Co, 1933, 168 (ONCA) p. 9.

[197] TD’s July 13, 2013 issuance of its claim on the TD Proceeding, its July 16, 17 and 21, 2013 attempts to serve its statement of claim, its July 23, 2013 notice of sale under mortgage and it then obtaining the order for substituted service on August 8, 2013, were known facts to the plaintiff at the time of his unsuccessful motion in February 2014 to set aside the default 2013 Judgment. Arguments under the Mortgages Act were either unsuccessfully argued on that February 2014 motion or could have been argued and cannot therefore be placed in issue in this proceeding.

[198] In any event, I agree with the analysis and conclusion of the court in McKenna Estate relied upon by the plaintiff, that a breach of s. 42 of the Mortgages Act in failing to obtain leave as permitted under s. 42(1) and (2) to commence proceedings or to take a further step therein constitutes an irregularity, not a nullity. The alleged breaches by TD under the Mortgages Act were irregularities and did not nullify the TD Proceeding.

BIA

[199] The plaintiff’s statement of claim does not allege breach of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 (“BIA”).

[200] The s. 244 BIA prior notice requirement to an insolvent person regarding enforcement of security in any event applies to:

(a) inventory;

(b) accounts receivable;

(d) acquired or used in relation to a business carried on by the insolvent person.

[201] The evidence is that the Unit was the plaintiff’s home. There is no evidence the Unit was for or in relation to a business carried on by the plaintiff. TD had no need to send such notice under s. 244 in the present case.

[202] The plaintiff does not allege he intended to file a notice of or make a proposal under the BIA. The court in John Deere Credit Inc. v. Doyle Salewski Lemieux Inc., 1997, 830 (ON CA), determined that the 10 day stay period created by s. 244 of the BIA permits the debtor that time to decide whether to give up the secured property to the creditor or make a proposal thereby creating a stay period.

[203] The plaintiff failed to plead breach of s. 42 of the Mortgages Act and s. 244 of the BIA. His right to amend his claim to do so was denied by:

(a) McLean J. on September 15, 2015;

(b) As confirmed by Maranger J. on January 4, 2016; and

[204] The plaintiff has not established that a trial is required or justified on the basis of new evidence not available at the time of the 2014 Dismissal Order’s effective confirmation of the 2013 Judgment.

LIMITATION PERIOD AND CCC 336

[205] I now consider the alternative claim of CCC 336 that summary judgment be granted and the claims herein against it are barred by the expiration of the relevant limitation period.

[206] CCC 336 submits that the claims against it in this proceeding commenced on December 11, 2014 are barred by the expiration of the two year limitation period pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Limitations Act”), because Mr. Nicholas knew long before December 10, 2012 of CCC 336’s claims and proceedings against himself and the Unit.

[207] By December 10, 2012, the plaintiff was aware that CCC 336:

(a) by the September 2011 Order had obtained an award against him for $17,607 which was recoverable as common expenses and by condominium lien against the Unit, along with an order of access;

(b) had registered a lien in the amount of $19,783 against the Unit in December 2011;

(d) had replaced the Unit windows in May 2012;

(e) had notified him in writing of the details of the amounts as to the lien and the arrears claimed from him and against the Unit:

(f) had provided him with its notice of intended power of sale proceeding for the $26,134 claimed as of June 27, 2012;

(g) had notified him of its then $28,311 claim as of August 8, 2012; and

(h) had issued its claim in the CCC 336 Proceeding on November 30, 2012 seeking judgment for the liability he owed the condominium and immediate possession of the Unit pursuant to the Notice of Sale Under Lien.

[208] With the above knowledge as to the positions of CCC 336, Mr. Nicholas could have commenced proceedings against CCC 336 prior to December 10, 2012, seeking damages and/or declaratory determination that the above condominium debt and lien were invalid and, that the actions of CCC 336 and its position as to his level of liability were invalid.

[209] Mr. Nicholas failed to take such action prior to December 10, 2012.

[210] For the above reasons, the plaintiff’s December 11, 2014 claim against CCC 336 in the alternative is barred as against CCC 336 by expiration of the two year limitation period under s. 4 of the Limitations Act as to this proceeding commenced on December 11, 2014.

TEST FOR SUMMARY JUDGMENT

[211] Summary judgment motions must be granted whenever there is no genuine issue requiring a trial.

[212] Some of the relevant principles regarding a R. 20.04 summary judgment motion from Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at paras. 32 to 34, 36, 43 to 45, 50, 57, 58, 62, 66 and 68 are:

(a) judges must actively manage the legal process in line with the principle of proportionality;

(b) proportionality is a comparative principle, it compels a motion judge to question whether the added expense and delay of fact finding at trial is necessary;

(c) pursuant to R. 20.04(2)(a), the court shall grant summary judgment if there is no genuine issue requiring a trial. The test is no longer whether there is “a genuine issue for trial”;

(d) if there appears to be a genuine issue requiring a trial, the court should then determine if the need for that trial can be aborted by using the new discretionary power under R.20.04 (2.1) and (2.2), by the weighing of the evidence, evaluating credibility and the drawing of reasonable inferences.

(e) if the parties on the summary judgment motion provide the court with the evidence required to fairly and justly adjudicate the dispute; there will be no genuine issue requiring a trial;

(f) the Court, on a motion for summary judgment, is required to assume the parties have presented all evidence that will be available at trial;

(g) a judge on a summary judgment motion shall decide the dispute if the necessary evidence has been presented on the motion to fairly and justly adjudicate the issue, unless the judge is satisfied that there is a genuine issue which requires the added expense and delay of fact finding at trial;

(h) the Court shall decide whether it can make the necessary findings of fact, apply the law to the facts and thereby achieve a fair and just adjudication of the action based on the evidence presented;

(i) the test whether proceeding by motion will provide a fair and just adjudication is not whether the procedure is as exhaustive as a trial. The test is the court’s confidence level as to its abilities to make findings of fact to apply the relevant legal principles to resolve a dispute on the motion.

(i) proportionality may require the motion judge to assess the relative cost, speed and efficiencies of proceeding by summary judgment rather than a trial. It may include what evidence would be available at trial;

(j) the Court must ask why it should not grant summary judgment;

(k) if summary judgment cannot be granted, the Court is to decide any issues that can be determined pursuant to the same principles and identify the steps to be undertaken to enable the court to decide the remaining issues.

CONCLUSIONS

CCC 336

[213] On the basis of the 2011 Order and the 2013 Judgment as to the $30,200 Condominium Arrears claimed and paid to CCC 396 and s. 4 of the Limitations Act. CCC 336’s motion for summary judgment is granted. The plaintiff’s claims against CCC 336 in this proceeding are fully dismissed.

TD

[214] TD’s motion for summary judgment is granted in part.

[215] TD is granted summary judgment:

(a) as to the amount of the Condominium Arrears and its payment of $30,219 to CCC 336;

(b) as to the issues determined in and the amount of the 2013 Judgment, including the then balance of principle, interest, municipal taxes pursuant to the Charge and the costs awarded therein that proceeding;

(c) as to TD’s right to proceed with its sale of the Unit, including the $210,000 appraised value, the listing price of the Unit and its acceptance of the $205,000 offer to purchase such property including the closing of that transaction for that consideration;

(d) as to the Unit’s costs of sale consisting of the real estate commission of 6% as provided in the listing agreement and the agreement of purchase and sale, the adjustments on closing for 2014 municipal taxes, condominium arrears and the appraisal fee.

[216] TD presented no documentary evidence on its motion as to:

(a) the basis of or entitlement to the amounts of management fees charged and paid as to the Unit after the 2013 Judgment until the sale of the Unit, beyond the payment of $8,030 by MFS on behalf of TD to CCC 336 which this Court accepts; and

(b) as to its legal fees and legal expenses after the 2013 Judgment.

[217] The plaintiff in addition alleges that regular monthly mortgage payments were withdrawn from his account after the date of the 2013 Judgment and are not reflected in the accounting of his share of the proceeds of sale. TD presented no evidence on this.

[218] The above three matters have not been proven by TD and are to proceed to trial as the remaining contested issues against TD before this Court on the basis of the present pleadings.

[219] The trial involving the above issues between the plaintiff and TD will be scheduled for 2 days through the Trial Coordinator for the introduction of evidence and argument.

[220] Notwithstanding their respective position as plaintiff and defendant, TD will present its evidence as to the above undetermined issues and claims, first in the trial. The plaintiff shall thereupon respond to those issues only, including his right to lead evidence if any.

[221] TD shall serve the plaintiff with:

(a) a copy of any documentation it intends to introduce at this trial and which it relies upon as to these remaining claims;

(b) its counsels’ time dockets, draft bill of cost and legal expense incurred subsequent to the 2013 Judgment, including for this motion;

(d) its factum and authorities;

three weeks prior to the start of this limited trial.

[222] Five business days before the commencement of trial, the plaintiff shall serve TD with:

(a) A copy of any documents he intends to rely on;

(b) A list of his witnesses; and

CROSSCLAIMS

[223] The court received no submissions in argument of these motions from either defendant as to the crossclaim each filed against the other defendant. The court accordingly makes no decision as to such cross-claims.

COSTS

[224] As to CCC 336’s successful motion for summary judgment, this party seeking costs shall submit their written submissions within 30 days from today. Any written response thereto shall be submitted 20 days thereafter. Any reply thereto in writing shall be submitted within the following 10 days.

[225] TD’s costs of this motion are res erved to the trial of the above remaining claims. TD’s cost submission shall include law as to its entitlement to claim travel time and costs for out of town counsel as to this proceeding and any cost claimed post the 2013 Judgment.

Kane J.

Released: 2016/08/12

CITATION: Nicholas v. Toronto-Dominion Bank, 2016 ONSC 3824

COURT FILE NO.: 14-62837

DATE: 2016/08/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVEN VRHOVAC NICHOLAS

Plaintiff

– and –

THE TORONTO-DOMINION BANK and CARLETON CONDOMINIUM CORPORATION NO. 336

Defendants

REASONS FOR JUDGMENT

Kane J.

Released: 2016/08/12

CITATION: Nicholas v. Toronto-Dominion Bank, 2016 ONSC 3824

SUPERIOR COURT OF JUSTICE

REASONS FOR JUDGMENT

THIS PROCEEDING

CCC 336 MOTION FOR SUMMARY JUDGMENT

FAILURE TO ARTICULATE CONDOMINIUM ARREARS OF $30, 219

CCC 336 PROCEEDING

TD PAYMENT OF CONDOMINIUM ARREARS TO CCC 336

CLAIM OF PLAINTIFF AGAINST TD

TD MOTION FOR SUMMARY JUDGMENT

PROCEEDINGS BETWEEN TD AND THE PLAINTIFF

TD STATEMENT OF CLAIM

APPRAISAL, LISTING AND SALE OF UNIT

RES JUDICATA

CAUSE OF ACTION ESTOPPEL

ISSUE ESTOPPEL

PRIVITY AS BETWEEN CCC 336 AND TD

DISMISSAL MOTION AND ORDER AS TO THE DEFAULT 2013 JUDGMENT

OTHER ISSUES

S. 22(2) OF MORTGAGES ACT

SALE OF UNIT BELOW MARKET VALUE

TD’S FAILURE TO ACCOUNT REGARDING SALE OF UNIT

CLAIMS AS TO EVICTION, POSSESSION AND UNIT SALE

RESULTING COSTS CLAIMED BY PLAINTIFF

NEW EVIDENCE

BIA

LIMITATION PERIOD AND CCC 336

TEST FOR SUMMARY JUDGMENT

CONCLUSIONS

CCC 336

TD

CROSSCLAIMS

COSTS

SUPERIOR COURT OF JUSTICE

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 17

Legal Tests 2

Legislation 6