COURT FILE NO.: CV-20-1885
DATE: 20210910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jenny Tran
Plaintiff/Moving Party
– and –
Durham Condominium Corporation No. 86, Newton Trelawney Property Management, Yellow Pine Developments Limited, and Frank Valente
Defendants/Responding Parties
Self-Represented, for the Plaintiff frcall89@yahoo.ca
Emily Schatzker, for the Defendants in relation to Ms. Tran’s action eschatzker@laxtonglass.com
Megan Mackey, for DCC No. 86 in relation to the power of sale proceedings mmackey@shibleyrighton.com
HEARD: August 24, 2021
REASONS FOR DECISION
SPEYER J.
A. Introduction
[1] Jenny Tran is the plaintiff in an action against Durham Condominium Corporation No. 86 (“DCC 86”), Newton Trelawney Property Management, Yellow Pine Developments and Frank Valente. Her statement of claim alleges breach of contract, negligence, and breach of fiduciary duty by the defendants. The relief sought is damages in the amount of $10,000,000, refund of all common expenses and property taxes paid by Ms. Tran, a certificate of pending litigation, interest, G.S.T., and costs.
[2] Ms. Tran purchased a commercial condominium unit in a plaza owned by DCC 86 in 2004. Newton Trelawney Property Management is the present property manager. Yellow Pine Developments is a former property manager. Frank Valente is or was a member of the Board of Directors of DCC 86.
[3] In April 2020, Ms. Tran’s payment for her common expense fee was rejected by her bank. Since then, DCC 86 has received and accepted her payments only for May and July 2020. The reasons why Ms. Tran’s payments for her common expense fees have ceased are in dispute between the parties. While DCC 86 is not blameless, and indeed accepts that it was wrong to return three cheques provided by Ms. Tran in the summer of 2020, Ms. Tran has since then refused to pay her common expense fees. In her action, she seeks the return of all common expense payments that she has made.
[4] DCC 86 registered a lien against Ms. Tran’s condominium to recover the unpaid common element fees and related costs, and acted to enforce the lien through the power of sale process, as it is permitted to do under The Condominium Act, 1998, S.O. 1998, c. 19, s. 85(6).
[5] Ms. Tran filed an urgent motion to prevent the sale of her commercial condominium by DCC 86 pursuant to the power of sale. DCC 86 entered into an agreement for the sale of Ms. Tran’s condominium, and the sale was to close on August 30, 2021. The urgent motion was heard on August 24, 2021.
[6] On August 27, I released an endorsement that advised the parties of my decision to dismiss the motion, with reasons to follow.[^1] These are those reasons.
[7] In her Notice of Motion Ms. Tran seeks the following relief:
An injunction or certificate of pending litigation to stay the sale of the condominium;
A Mareva injunction;
A Mills injunction;
An order requiring the DCC 86 to be represented by a single and particular lawyer in relation to both its defence of Ms. Tran’s action and its power of sale proceedings;
An order “granting vexatious, frivolous, and/or abusive proceedings”, apparently against the defendants;
An order striking out the defendants’ pleadings;
An order that the contents of her condominium unit be returned to her;
An order that the original locks be returned to the condominium;
An order returning the property to her;
An order to dismiss the defendants’ defence as a result of their conduct, characterized by Ms. Tran as “breach, fraud and criminal conduct”;
An order imprisoning the defendants for at least five years;
An order discharging the lien registered against Ms. Tran’s condominium;
An order revising my prior order of June 22, 2021;
Costs, not just of this motion but also of Ms. Tran’s complaints to various regulatory bodies that govern persons involved with the sale of Ms. Tran’s condominium;
Punitive damages;
Special damages;
An order abridging time to serve and file her notice of motion and factum; and
An order granting leave to file a lengthy factum.
[8] An order abridging time to serve and file her notice of motion, and to file a lengthy factum is granted. Ms. Tran filed a 78-page factum. In addition, Ms. Tran was permitted to file supplementary written submissions after the hearing, and she did so by letters dated August 25, 2021 and August 26, 2021. I have also been provided with a letter written by Ms. Tran to the Registrar seeking an order pursuant to Rule 2.1 of the Rules of Civil Procedure, which was referred to in Ms. Tran’s materials.
B. Background
[9] Ms. Tran’s condominium is situated in a commercial plaza in Ajax, Ontario. She has not carried on business there for some time. Her action against the defendants claims that she has been unable to carry on business because the roof leaks. Whether it leaks, and who is responsible to arrange and pay for any needed repairs, is in dispute.
[10] Ms. Tran has brought several motions since filing her statement of claim. The history and progress of Ms. Tran’s action against DCC 86 is detailed in my earlier judgments in relation to those motions.[^2]
[11] Before Ms. Tran filed her statement of claim, DCC 86 registered a certificate of lien on title to her condominium. The certificate of lien was registered on title over a year ago on June 29, 2020 in the amount of $729.00. DCC 86 claims that as of July 16, 2021 the amount owed by Ms. Tran had increased to $34,386.48. DCC 86 claims that the increased amount of monies owed by Ms. Tran reflects unpaid common element fees, and legal costs and other expenses incurred by DCC 86 as it attempted to collect those fees.
[12] On November 13, 2020, DCC 86 issued a Notice of Sale, which was sent to Ms. Tran.
[13] By letter dated May 18, 2021, DCC 86 advised Ms. Tran that her unit would be listed for sale if the arrears of common expenses were not paid by June 2, 2021. DCC 86 also advised her that it would accept part payments. Ms. Tran responded with a demand to remove the lien from title. The lien was not removed.
[14] DCC 86 advised Ms. Tran by letter dated June 29, 2021 that her unit had been listed for sale and asked her if she wanted to sell the unit herself or if she had any interested buyers. DCC 86 did not receive a response.
[15] The condominium was sold pursuant to an agreement of purchase and sale dated July 6, 2021. The closing date was scheduled for August 30, 2021. Ms. Tran was provided with a copy of the agreement of purchase and sale. By the present motion, Ms. Tran seeks to prevent the sale of the condominium.
[16] It is Ms. Tran’s position that she is not required to pay anything to DCC 86 because I ruled on an earlier occasion that the lien is invalid, and because I have not made an order requiring her to make her common element payments. She is wrong.
[17] Ms. Tran asserts that I found the lien to be invalid in my ruling of May 3, 2021. I did not. On May 3, 2021, I dismissed a motion brought by DCC 86 for a declaration that its lien was valid. The motion was dismissed for two reasons: 1) I did not have jurisdiction to hear and determine a motion for a declaration as to the validity of the lien within Ms. Tran’s action; and 2) even if I had such jurisdiction, I could not decide the dispute as to the validity of the lien on the basis of the affidavit evidence filed. The facts were in dispute. Ms. Tran has misinterpreted my May 3 ruling. I did not find the lien registered by DCC 86 on title to the condominium to be invalid. I did not decide whether it was valid or not.
[18] It is also Ms. Tran’s position that I did not order her to pay any money to DCC 86, and that therefore she was no longer required to make her common element payments. In fact, she has not attempted to make those payments since DCC 86 returned three cheques to her in the summer of 2020. Ms. Tran’s obligation to make her common element payments exists independently of this litigation. I have made no order permitting her to stop making her payments, and she was still required to make them.
[19] Ms. Tran’s obligation to make her common element payments arises from s. 84 of The Condominium Act, 1998, S.O. 1998, c. 19, which provides:
S. 84(1) Subject to the other provisions of this Act, the owners shall contribute to the common expenses in the proportions specified in the declaration.
S. 84(3) An owner is not exempt from the obligation to contribute to the common expenses even if,
(a) the owner has waived or abandoned the right to use the common elements or part of them;
(b) the owner is making a claim against the corporation; or
(c) the declaration, by-laws or rules restrict the owner from using the common elements or part of them.
S. 85(1) If an owner defaults in the obligation to contribute to the common expenses, the corporation has a lien against the owner’s unit and its appurtenant common interest for the unpaid amount together with all interest owing and all reasonable legal costs and reasonable expenses incurred by the corporation in connection with the collection or attempted collection of the unpaid amount.
S. 85(2) The lien expires three months after the default that gave rise to the lien occurred unless the corporation within that time registers a certificate of lien in a form prescribed by the Minister.
S. 85(3) A certificate of lien when registered covers,
(a) the amount owing under all of the corporation’s liens against the owner’s unit that have not expired at the time of registration of the certificate;
(b) the amount by which the owner defaults in the obligation to contribute to the common expenses after the registration of the certificate; and,
(c) all interest owing and all reasonable legal costs and reasonable expenses that the corporation incurs in connection with the collection or attempted collection of the amounts described in clauses (a) and (b), including the costs of preparing and registering the certificate of lien and discharge of it.
[20] Ms. Tran was required to make the payments that she refused to make. There is nothing in my earlier rulings that exempted her from this requirement.
C. Analysis
[21] Ms. Tran seeks 18 forms of relief on this motion. My analysis will deal with related forms of relief together.
i. Injunctive relief
[22] Ms. Tran seeks an injunction or certificate of pending litigation to stay the sale of her condominium. She also seeks a Mareva injunction and a Mills injunction.
[23] I dismissed an earlier motion made by Ms. Tran for a certificate of pending litigation, and so will not address that claim again.[^3]
[24] Ms. Tran brought the motion for an injunction within her action against the defendants for damages she claims to have suffered because of the defendants’ breach of contract, negligence, and breach of fiduciary duty. The amended statement of claim does not seek an injunction to prevent DCC 86 from exercising its power of sale.
[25] It is the position of DCC 86 that because a permanent injunction is not sought in Ms. Tran’s statement of claim, I do not have jurisdiction to hear and determine Ms. Tran’s urgent motion because it is not part of Ms. Tran’s action.
[26] DCC 86 is correct.
It is a fundamental principle that in the absence of a pending proceeding, or an intended proceeding, in which a permanent injunction is claimed, the court has no jurisdiction to grant an interlocutory injunction. This follows from s. 101 of the Courts of Justice Act and rule 40.01 of the Rules of Civil Procedure: Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc. (1995), 1995 CanLII 10638 (ON SC), 23 O.R. (3d) 766 (Div.Ct.), at para. 29.
[27] Even if I had jurisdiction to consider Ms. Tran’s motion for an injunction to prevent the sale of the condominium, I would not grant an injunction.
[28] The test for an interlocutory injunction requires consideration of three factors: 1) has Ms. Tran presented a serious issue to be tried; 2) would Ms. Tran suffer irreparable harm if the remedy for the defendants’ conduct is left to be granted at trial; and, 3) does the balance of convenience favour granting an injunction?
[29] I will assume that Ms. Tran has presented a serious issue to be tried. However, there is no evidence that Ms. Tran will suffer irreparable harm if the remedy for the defendants’ conduct is left to be granted at trial. In addition, the balance of convenience strongly favours the denial of injunctive relief. That is so because Ms. Tran could stop the sale by paying the amount said to be owed by her, and then commencing an action against DCC 86 to recover sales proceeds if they were wrongfully taken. On the other side of the balancing scale, if an interlocutory injunction is granted Ms. Tran does not intend to pay her common element fees until her action is concluded. She made that clear at the hearing of the motion and in an email sent to counsel for DCC 86. She has taken no steps to move the litigation forward to a conclusion. To the contrary, she has brought several motions, all said to be urgent. She has filed a motion for leave to appeal to the Divisional Court against the first decision that was rendered. She has failed to comply with an order made by Corbett J. requiring her to provide a timeline for filing materials in support of her motion for leave to appeal, and when asked about that during the hearing of this motion, told me that was because she cannot be sure that the order of Corbett J. was a real order. All the while, she has claimed, incorrectly, that all proceedings in relation to her action have been stayed while her appeal is pending. She advised that further appeals to the Court of Appeal and Supreme Court of Canada may be undertaken. Ms. Tran’s litigation strategy is consistent with an effort to manipulate the court’s process to stall her action, which appears to have been launched to frustrate efforts by DCC 86 to enforce her obligation to contribute to the common expenses of her condominium community.
[30] Ms. Tran’s claim for a Mareva injunction, if I had jurisdiction to consider it, would fail. To obtain a Mareva injunction the moving party must establish: (1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and (3) that there is a serious risk that the defendant will remove property or dissipate assets before the judgment. A Mareva injunction should be issued only if it is shown that the defendant's purpose is to remove their assets from the jurisdiction to avoid judgment. The moving party must also establish that they would suffer irreparable harm if the injunction were not granted and that the balance of convenience favours granting the injunction: O2 Electronics Inc. v. Sualim, 2014 ONSC 5050, at para. 67.
[31] There is no serious risk that DCC 86 will remove property or dissipate assets before any judgment is rendered in Ms. Tran’s action. It is a non-profit corporation that cannot move its assets out of the jurisdiction. My previous comments about the risk of irreparable harm if the injunction is not granted and where the balance of convenience lies apply as well to the claim for a Mareva injunction.
[32] Ms. Tran’s claim for a Mills injunction cannot entitle her to any relief that fails to meet the Mareva injunction test as in this case there is no evidence that DCC 86 has engaged in fraudulent conduct: Sibley & Associates LP v. Ross, 2011 ONSC 2951, at paras. 63-4.
[33] Finally, an additional impediment to Ms. Tran’s claim for any sort of injunction is that she has not provided an undertaking to pay damages if her action does not succeed.
ii. Must DCC 86 be represented by a single and particular lawyer in relation to both its defence of Ms. Tran’s action and its power of sale proceedings?
[34] DCC 86, like any litigant, has the right to be represented by counsel of choice. DCC 86 has chosen to be represented by one lawyer to defend Ms. Tran’s action and by another lawyer to pursue the remedies available to it to collect her common expense fees. Ms. Tran cannot dictate that DCC 86 be represented by a single and particular lawyer.
iii. Orders relating to the defendants and their defence of Ms. Tran’s action
[35] Several of the orders sought by Ms. Tran may be dealt with under this heading. Ms. Tran seeks an order “granting vexatious, frivolous, and/or abusive proceedings”, apparently against the defendants, an order striking out the defendants’ pleadings, and an order to dismiss the defendants’ defence as a result of their conduct, characterized by Ms. Tran as “breach, fraud and criminal conduct”. None of these orders, if granted, would address Ms. Tran’s immediate concern, which is to stop the sale of her condominium. What Ms. Tran seeks is to prevent all the defendants from defending her action against them.
[36] These claims for relief are without merit. There is nothing in the way the defendants have conducted the litigation that can be characterized as vexatious, frivolous, abusive, scandalous, an abuse of the process of the court, fraudulent or criminal. There is nothing in the pleadings that could prejudice or delay the fair trial of Ms. Tran’s action. To the contrary, counsel for the defendants have accommodated the scheduling of Ms. Tran’s numerous motions, have responded to each of her motions fairly and in accordance with the rules, and have maintained a civil demeanour in difficult circumstances. Counsel for the defendants have sought to work with Ms. Tran to develop a timetable to move her action forward, but she has resisted their efforts.
iv. Orders to restore Ms. Tran’s possession of the condominium and its contents
[37] Ms. Tran seeks an order that the condominium be returned to her, that the contents of the condominium be returned to her, and that the original locks be returned to the condominium. It is her position that the court has an inherent jurisdiction to make this order.
[38] Underlying Ms. Tran’s submission that I should exercise this inherent jurisdiction is an assumption that DCC 86 was not entitled to exercise its power of sale to recover monies owed to it by Ms. Tran for payment of her common element fee. This assumption appears to flow from Ms. Tran’s position that I found the lien registered by DCC 86 to be invalid. As previously noted, I have made no such finding.
v. An order to imprison the defendants for at least five years
[39] Ms. Tran seeks an order imprisoning the defendants because of their alleged contempt of court. This request for relief is based on the allegation that the defendants have breached my earlier orders.
[40] The defendants have not breached any order made by me. I have made no order that the defendants do, or cease to do, anything. I have not found that their lien is invalid. I have not made an order that Ms. Tran is not required to pay her common element fee. Ms. Tran is correct that I ordered on June 22, 2021 that no further steps be taken in relation to Ms. Tran’s action 1885/20 until such time as Ms. Tran’s appeal to the Divisional Court from my decision denying Ms. Tran’s motion to appoint amicus is determined without leave of the court. That order does not prevent DCC 86 from pursuing such remedies as may be available to it independently of Ms. Tran’s action.
[41] Also, a corporation cannot be imprisoned. Three of the defendants are corporate defendants.
[42] There is no evidence that the fourth defendant, a man who was, and maybe still is, a member of the board of directors of the condominium, has anything to do with the sale of the condominium. Ms. Tran has provided no evidence that he is in breach of any order I have made.
vi. An order discharging a lien registered against Ms. Tran’s condominium
[43] There has been no finding that the lien was invalid, and therefore no basis upon which an order discharging the lien may be made.
vii. An order revising my prior order of June 22, 2021
[44] The relief sought by Ms. Tran includes her request that I make an order revising my order of June 22, 2021 “to avoid the Defendants conduct”. The order made by me on June 22, 2021 relates to a motion made by Ms. Tran to stay my order that dismissed her motion for the appointment of amicus to assist her in the conduct of her action.
[45] There is nothing in the order of June 22, 2021, or the motion that gave rise to that order, that has anything to do with “the Defendants conduct” in exercising a power of sale in relation to the condominium. The request to revise my order of June 22, 2021 is denied.
viii. Costs, not just of this motion but also of Ms. Tran’s complaints to various regulatory bodies that govern persons involved with the sale of Ms. Tran’s condominium
[46] Ms. Tran has not been successful on this motion. She is not entitled to costs.
ix. Punitive and special damages
[47] An award of damages is not available on a motion. In Ms. Tran’s amended statement of claim, dated December 7, 2020, she seeks damages in the amount of $10,000,000 for breach of contract, negligence, and breach of fiduciary duty. Her claim to damages will have to be assessed when her action is tried.
D. Conclusion
[48] Ms. Tran’s motion is dismissed. If counsel for the defendants seek costs, they may make written submissions, not to exceed three pages in length, in addition to a bill of costs. Any such submissions are to be served and filed by September 30, 2021. Any response from Ms. Tran is to be served and filed by October 15, 2021.
Justice J. Speyer
Released: September 10, 2021
COURT FILE NO.: CV-20-1885
DATE: 20210910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jenny Tran
Plaintiff/Moving Party
– and –
Durham Condominium Corporation No. 86, Newton Twelawney Property Management, Yellow Pine Developments Limited, and Frank Valente
Defendants/Responding Parties
REASONS FOR DECISION
Justice J. Speyer
Released: September 10, 2021
[^1]: Tran v. Durham Condominium Corporation, 2021 ONSC 5789. [^2]: Tran v. Durham Condominium Corporation et al., 2021 ONSC 4452 (June 21, 2021); Tran v. Durham Condominium Corporation et al., 2021 ONSC 3218 (May 3, 2021); Tran v. Durham Condominium Corporation et al., 2021 ONSC 2415 (March 30, 2021). [^3]: Tran v. Durham Condominium Corporation et al., 2021 ONSC 3218 (May 3, 2021)