Court File and Parties

Court File No.: CV-17-3298-00 Date: 2020-08-04

Superior Court of Justice - Ontario

Re: PEEL CONDOMINIUM CORPORATION NO. 223 (Plaintiff and Moving Party) AND LAI-MING TUNG (Defendant and Responding Party)

Before: D. E. Harris J.

Counsel: J. Cowman for the Plaintiff Defendant\Respondent, representations by her son

Heard: July 13, 2020 by videoconference

Endorsement

[1] The plaintiff moves for summary judgment. It is a non-profit corporation under the Condominium Act 1998, S.O. c. 19 as amended (the “Act”). Its objects and duties include the management of the condominium property on behalf of 23 industrial unit owners.

[2] The defendant is a long time owner. Her unit is rented out to a third party. The dispute between plaintiff and defendant involves a lien on the defendant’s unit. In brief, according to the corporation’s account, a contractor was hired to perform roof repairs on the building. The owners were all notified that their HVAC units would have to be disconnected so that the HVAC equipment could be lifted, and the roof repaired. The defendant refused to take these steps. It replaced its HVAC equipment on its own although not authorized to do so. Damage was caused to the new roof as a result of the HVAC not being unstrapped. The contractor had to be called in to deal with the situation which resulted in additional costs being incurred.

[3] The defendant was notified of the costs. She has refused to pay. There have been consequential legal costs on top of them which she has not paid either. A lien was registered by the plaintiff for failure to pay common expenses. The condominium declaration deems failure to pay repair expenses to be a failure to pay common expenses. The Act provides that a lien can be enforced in the same manner as a mortgage.

[4] The plaintiff now requests summary judgment under Rule 20 of the Rules of Civil Procedure. I do not believe that this is an appropriate case for summary judgment.

[5] The validity of the lien is at the centre of this dispute. The defendant’s first submission on this hearing and continually throughout submissions was to deny that his HVAC unit was strapped down to the building and that this was the reason for the damage incurred. She took the same position in her affidavit. If summary judgment were rendered, it would run roughshod over the defendant’s position on the facts.

[6] In the leading case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Justice Karakatsanis emphasized the need for a culture shift to promote timely and affordable justice. Her interpretation of the summary judgment process mandated by Rule 20 of the Rules of Civil Procedure focused on whether as the rule states, there is a “genuine issue requiring a trial.” Summary judgment must give a judge confidence that the process will lead to a just and fair result. A major aspect is whether the judge is able to find the necessary facts from the summary judgment material: Hyrniak at paras. 47-51; Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, [2019] O.J. No. 2029 at para. 63.

[7] In this case, the issue is one purely of credibility. On one side is the contractor and the condominium management. On the other, is the defendant. Documentary evidence is inadequate to resolve the question. Oral evidence is required. It would be unfair and unjust to resolve the dispute by way of summary judgment.

[8] Moving on to the second tool to abbreviate a civil trial, the new fact finding powers, this is equally unavailing. Rules 20.04(2.1) and (2.2) presumptively allow weighing of evidence, evaluating the credibility of a deponent, drawing inferences and hearing oral evidence. This does not mean, of course, that all credibility issues can be resolved by the new fact finding powers. The Court of Appeal has held, “The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record”: Cook v. Joyce, 2017 ONCA 49, at para. 92, also see Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44, HQIC and Circlemed Inc. v. Hamdani, 2020 ONSC 3403 at para. 55.

[9] The issue in this case cannot be determined without oral evidence, in my view. There is insufficient confirmation on either side to give me any confidence to rule for one side or the other on the key issue of the damage to the roof and the responsibility for it. Nor does logic point compellingly in one direction sufficiently to make a finding of which I would have confidence. If I made credibility findings on the current record favouring one side or the other, I believe the other side would have a justified feeling of grievance that they were denied procedural fairness.

[10] The third alternative, a focussed mini-trial under Rule 20.04(2.2) with oral evidence, makes little sense in the circumstances of this case. This is a two issue case. Besides the roof issue, the defendant has raised an issue with respect to registration of the lien, arguing it was registered out of time. I would not have ordered a trial on this ground alone. But since there must be a trial on the underlying issue, partial summary judgment should not be ordered on the registration issue. It will not be necessary for the trial judge to go far outside, if at all, the paper record. This secondary issue can be resolved in an expeditious manner.

[11] For these reasons, the motion is dismissed. Costs are reserved to the trial judge.

D.E. Harris J. DATE: August 4, 2020