Court File and Parties

Court File No.: 18-CV-591462 Motion Heard: 2019-04-10 Superior Court of Justice - Ontario

Re: York Condominium Corporation No. 365, Plaintiff And: Olga Wint, Defendant

Before: Master Abrams

Counsel: Megan Molloy, for the Plaintiff Stephen Panzer, for the Defendant

Heard: April 10, 2019

Reasons for Decision

[1] The defendant moves to set aside the noting in default and the April 24/19 default judgment herein. The defendant further moves to set aside, expunge or vacate the Order of Master McGraw dated July 20/18 (which granted the plaintiff leave to issue a writ of possession for the plaintiff’s condominium unit), the writ of possession issued by the registrar, the notice to vacate issued by the Sheriff and the certificate of lien registered against the title to the plaintiff’s unit, on July 31/14.

[2] The defendant deposes that the statement of claim did not come to her attention before judgment was signed; that she moved to set aside the default judgment upon becoming aware of it; that the amounts claimed, by the plaintiff, are “unwarranted or excessive”; and that she always intended to defend this action.

[3] The plaintiff is a not-for-profit residential condominium corporation, created for the purpose of controlling, managing and administering a condominium development comprised of 228 dwelling units at 4060, 4062 and 4064 Lawrence Avenue East. The operation and affairs of the plaintiff have been governed by a court-appointed administrator since May of 2014. The administrator was appointed to improve the poor financial position of the plaintiff and to address ongoing disputes and internal politics among the condominium owners and residents.

[4] The defendant is the owner of a residential dwelling unit at 4060 Lawrence Avenue East. She became an owner in August of 2012. Jennifer Wint is the defendant’s daughter and, according to the defendant, is also the current resident of that unit. Jennifer Wint has advised that she is a co-owner and has conducted herself in the manner of a co-owner, though the title to the unit does not reflect her stated ownership interest.

[5] The defendant’s account with the condominium corporation first fell into arrears when the defendant failed to render full payment of the monthly common expense fees due and payable on May 2014. She then failed to render payment for the common expense fees and special assessment due and payable in the month following.

[6] Because of the defendant’s default, and pursuant to s. 85(1) of the Condominium Act, the plaintiff registered a lien against the defendant’s property (for common expenses + interest + reasonable legal costs + the cost of the notice of lien).

[7] The notice of lien was sent to the defendant at her unit, the only address with which the plaintiff had been provided for service, on July 15/14. The Condominium Act requires of owners that they each maintain a valid address for service with the condominium corporation and advise of any changes (including as to the unit being leased) (s. 83). The only information that the plaintiff then had on record, in respect of the defendant’s unit, is that the defendant owned and resided at the unit, with there being no record of any lease.

[8] The notice of lien expired, with no response from the defendant, on July 28/14. A certificate of lien was then registered against the unit, with notice sent to the defendant and to all who held encumbrances on the property.

[9] On September 9/14, the plaintiff, by its lawyers, sent a warning letter to the defendant advising that power of sale proceedings would be commenced if the amounts owed were not paid in full within 14 days. Two months later, a second warning letter was sent and a further 14 days’ grace was permitted the defendant.

[10] In late 2014, plaintiff’s counsel was contacted by Jennifer Wint. She asked that an updated statement of common expense arrears be sent. It was. On February 10/15, receipt of that statement was acknowledged and a response promised. Two warning letters followed, with an admonition that, unless payment was made, power of sale proceedings would be commenced.

[11] And payment was made from August 2014 through 2015: partial payment totaling more than $25,000. A balance remained about which the defendant was warned, with a warning letter and threat of power of sale proceedings sent in January 2017.

[12] Ultimately, power of sale proceedings were commenced. A notice of sale was sent to the defendant by registered mail, to the only address on file with the plaintiff and to the address at which her daughter, self-identified as a part owner, lived and at which address the defendant received correspondence sufficient to spur her to pay some of what was owed.

[13] Calls were made to the defendant at the telephone number which the plaintiff had for her, in March, April and May of 2017. None was answered. However, some additional partial payments were made through 2017.

[14] An action for possession of the property was commenced in January 2018. Efforts to serve the defendant personally were not successful. By Order made by Master Graham, the plaintiff was permitted to serve the defendant by regular mail addressed to her at her unit. The statement of claim was mailed and was not returned to the plaintiff. Though the defendant failed to defend the action, she did continue to make partial monthly payments. [1]

[15] On April 25/18, plaintiff’s counsel acknowledged, in writing, receipt of the further partial payments and made reference to the fact that a claim had been commenced, enclosing for ease of reference a second copy of the statement of claim. There was a response to this letter. In letters sent by Jessica Wint in May 2018, Ms. Wint advised having consulted with counsel and asked for more time. She also confirmed that she and her mother, Olga Wint, own the unit.

[16] Judgment for possession issued and was served by mail on the defendant, at the address registered by her for service, with a copy sent to Jessica Wint. This time the defendant herself directly responded. She advised that her daughter and granddaughter resided in the condominium unit and questioned the plaintiff’s calculations. Further discussions and settlement efforts followed. In July 2018, Jessica Wint advised that she did not have sufficient funds to make full payment and asked whether she and the defendant would be notified when the action proceeded to court. Neither she nor the defendant requested an opportunity to deliver a statement of defence. The plaintiff responded with an updated statement of common expense arrears, and a copy of the writ of possession. The letter from the plaintiff was addressed to the defendant and to Jennifer Wint. Correspondence was exchanged with respect to the status of the action and with respect to the accumulating arrears. On August 23/18, counsel for the plaintiff was contacted by counsel for the defendant on this motion. Defendant’s counsel disputed the claim “…under the asserted lien as being unjustified and improper” and asked for an accounting of the arrears and copies of all documents.

[17] Jennifer Wint was not and has not yet been evicted from the unit. The Sheriff acknowledges that there was an error made in the manner in which the notice to vacate was drafted--an error that the plaintiff advises will be rectified in due course.

[18] The defendant now says that she wishes to defend the claims against her, in that she “had no knowledge or awareness whatsoever of the within proceedings prior to…April 24, 2019”. She also says that “[s]ince prior to February 5, 2018 and continuing to present, [she has] not resided at or occupied the condominium unit at issue”.

[19] A judgment against a defendant who has been noted in default may be set aside or varied by the court on such terms as are just. [2] The defendant argues that she did not receive the statement of claim and/or it was not brought to her attention before she was noted in default and judgment was signed. Where, as here, service was made in accordance with an Order for substituted service, the evidentiary burden rests on the moving party to establish, on a balance of probabilities, that she did not receive the claim or notice of the claim (Ren v. Can Site Corp., 2016 ONSC 7738, at paras. 31-33). I agree with the plaintiff when it says that, on the record now before me, the defendant has failed to meet her burden.

[20] The defendant indicates that she is an “unsophisticated person”. What that means, here, I do not know. Further, and though she says that she does not reside at the unit at issue, the defendant has failed to provide the court with any independent evidence as to her place of residence being what she says it is, as to steps taken by her to deal with her mail, and as to the timing of her stated move. Then too, she has failed to make comment on her failure to update her address with the condominium corporation; she has failed to explain why her daughter self-identified as a part owner; she has failed to advise as to whether her daughter had authority to act as her agent (if she is not a part owner), as she seems to have done; she has failed to explain how/why it is that her daughter seemingly saw fit to share some information/mail with her, but not all; she has failed to advise as to what her mortgagee (notified at various junctures, by the plaintiff, as to the status of the defendant’s accounts) did or did not tell her; and, most importantly, she has failed to file evidence from Jennifer Wint as to her ownership interest in the unit and/or her authority to bind the defendant and as to what mail she received or didn’t receive and what mail or information she did or did not share with the defendant. Why would Jennifer Wint share some information with her mother but withhold disclosure of critical information—i.e. the fact that a claim had been commenced?

[21] It is obvious that the defendant received information about her indebtedness in relation to the condominium unit prior to April 24/19 because she acknowledges herself having purchased “a few of the money orders…which were sent to [plaintiff’s counsel’s] office…” (Exhibit “JJ” to the affidavit of William Thompson, sworn March 26/19), after her daughter was contacted by a legal assistant/collections clerk. Indeed, the very same collections clerk in question sent a letter to her and to her mortgagee on (at least) November 13/14, November 5/15 and January 13/17, confirming the registration against title of a condominium lien and threatening power of sale proceedings. With no evidence from Jennifer Wint and with bald, unsubstantiated generalized statements from the plaintiff, there is no plausible explanation for the defendant’s default.

[22] The defendant delayed in moving to set aside the default judgment. As an enclosure to a letter setting out the defendant’s obligations and indebtedness, a copy of the judgment was mailed to the defendant at the 4060 Lawrence Avenue East, Unit 407 address--on May 24/18. This letter was received by the defendant in that she herself, and with no one acting as her agent or co-owner, responded on June 8/18. Yet, she did not move to set aside the judgment until almost 9 months later.

[23] And the defence which the defendant proposes to advance is no defence at all. It is simply a blanket denial of all allegations and a plea that the plaintiff’s claim is “unjustified, unwarranted, excessive, remote and unmitigated”. There is no evidence before me to support the defendant’s bald plea. There are letters appended to the defendant’s affidavit but, without more, they tell me little as to how and why the defendant says she has an arguable case on the merits. I cannot and do not know that she does.

[24] The plaintiff posits that another course of action was available to the defendant, short of this motion. It points out that, in the event that an owner disputes the validity of a condominium lien (as here), the courts have “endorsed that the appropriate course of action is to pay the debt in full, and, then commence legal proceedings to determine whether the monies secured under the encumbrance are justified or should be refunded” (see, for instance: 1716243 Ontario Inc. v. Muskoka Standard Condominium, 2014 ONSC 1848, at para. 36(b)).

[25] The defendant failed to adduce evidence of a failure on the part of the plaintiff to follow the requisite procedure set out by the Condominium Act, either prior or subsequent to the registration of its lien. “Condominium owners have a legal obligation to pay their share of common expenses and such obligation continues and is not diminished by their claim against the condominium corporation” (Carleton Condominium Corp. No. 396 v. Burdet, 2015 ONSC 1361, at para. 96). Further, a condominium corporation’s right to costs, pursuant to ss. 85(1) and 85(3)(c) of the Condominium Act includes “all reasonable legal costs and reasonable expenses incurred in connection with the collection or attempted collection of the unpaid amount” (Senneck v. Carleton Condominium Corporation No. 116, 2018 ONSC 1921, at para. 44).

[26] And while the defendant relies on an August 23/18 letter sent by her counsel to say that requiring her daughter (and granddaughter) to vacate the unit will cause “irreparable harm, injury and damage to Olga Wint and Jennifer Wint”, I do not know that this is so (even accepting that it would be most unfortunate). I do not have any independent evidence as to the means and circumstances of either Jennifer or Olga Wint. As well, although the defendant now argues that the plaintiff had an obligation to submit its claims to arbitration and mediation, “…s. 132(4) [of the Condominium Act] does not require owners and condominium corporations to submit disagreements with respect to the Act to mediation and arbitration” (McKinstry et al. v. York Condominium Corp. No. 472 (S.C.J.), at para. 19). The parties’ dispute may not have been mediated; but, there is no question but that litigation was not commenced until after repeated efforts were made at amicable resolution. Further, the defendant and Jennifer Wint were urged to by the plaintiff to seek legal counsel, throughout.

[27] I have considered, inter alia, the issue of delay, the circumstances giving rise to the defendant’s default, the defendant’s proposed defence, and the relative potential prejudice if the motion is dismissed. The nature and quality of the defendant’s evidence on this motion is such that I am not persuaded that it would here be just to undo what has already been done, procedurally. The defendant’s motion is thus dismissed. That said, I note that the plaintiff has agreed, and I hereby order, that no steps be taken to require the occupant(s) of the defendant’s unit to vacate the premises for a period of 90 days from the date of these Reasons.

[28] The parties should know that, in rendering my decision, I had no regard to the letter at pages 209-211 of the plaintiff’s motion record (which letter was struck by me, in court).

[29] Failing agreement, I may be asked to rule on the issue of costs—this by July 31/19.

June 26/19

Footnotes

[1] Whether the defendant herself or Jennifer Wint, on the defendant’s behalf or on her own behalf as a part owner, made payment is immaterial. The fact is that payments for the unit were made in accordance with the plaintiff’s demands and stated entitlement.

[2] I have considered and applied Lenskis v. Roncaioli (1992), 11 C.P.C. (3d) 99 (Ont. Gen. Div.), aff’d (1996), 45 C.P.C. (3d) 57 (C.A.) and 441612 Ontario Ltd. v. Albert (1995), 36 C.P.C. (3d) 198 (Ont. Gen. Div.), relied upon by the defendant, in considering the merits of the defendant’s motion.