COURT FILE NO.: CV-17-3298-00 DATE: 2023 05 18

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

PEEL CONDOMINIUM CORPORATION No. 223

Plaintiff

• and -

LAI-MING TUNG

Defendant

Counsel: Jordan Cowman, for the Plaintiff Self-represented, for the Defendant

HEARD: December 7, 8, 9, 2022

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] The Plaintiff, Peel Condominium Corporation No. 223 (“PCC 223”), is a non-profit condominium corporation under the Condominium Act, 1998, S.O. 1998, c. 19 (“the Act”). This commercial condominium is located at 5127 to 5171 Tomken Road, Mississauga, Ontario (“the Property”). GSA Property Management (“GSA”) is the company that manages the Property on behalf of PCC 223.

[2] The Defendant, Lai-Ming Tung (“Mrs. Tung”), is the registered owner of Unit 15 Level I (“the Unit”) of the Property.

[3] PCC 223 commenced this action seeking possession of the Unit. It claims that Mrs. Tung is in default of her common expenses which gave PCC 223 the right to register a lien against title to the Unit. Despite numerous demands, Mrs. Tung has not paid the amount owing. Accordingly, PCC 223 is seeking to take possession, sell the Unit, and recoup the amounts owed.

[4] This trial proceeded in a hybrid manner, wherein evidence in chief was served in advance by way of affidavit, and the parties were given an opportunity to cross-examine the affiants in court. With the consent of all parties, Mr. and Mrs. Tung’s daughter, Andrea Tung, represented Mrs. Tung by conducting the cross-examinations and making submissions on her behalf.

I. Issues

[5] The following issues must be decided:

a) Does PCC 223 have a valid lien? In order to answer that, I must determine the following questions:

1. Did PCC 223 incur costs due to an act or omission of Mrs. Tung and/or her agents? If so, what was the sum of the costs incurred?
2. Did PCC 223 make a demand for payment by a specific date?
3. Did Mrs. Tung default in that payment?
4. Was the lien properly registered?

b) If there is a valid lien, should PCC 223 have possession so that it can sell the Unit and recoup the amount owed?

II. Background

A. General

[6] Mrs. Tung purchased the unit on July 3, 1986. Her husband, Michael Tung (“Mr. Tung”), was the party who communicated with PCC 223 on behalf of Mrs. Tung at all relevant times. Mr. Tung was a safety inspector with Ontario Hydro until 1989, retiring in 1992. He received his Bachelor of Technology in Electrical Engineering Technology in 1975.

[7] Until the time of the events described herein, Mrs. Tung was up to date with her monthly common expenses.

[8] As is expected in all condominiums, the unit holders are obliged to abide by the by-laws and the Declaration of the condominium corporation. In this case, the relevant by-law is the Schedule to By-law No. 8, which states:

The following is the schedule setting out and what constitutes a standard unit for each industrial unit within this condominium plan for the purpose of determining the responsibility for repairing unit improvements after damage and insuring them, i.e., for insurance purposes only as between the Corporation and the unit holder, as required pursuant to Section 43(5)(h) of the Condominium Act.

• Roof top HVAC unit serving each unit

[9] The relevant sections of the condominium Declaration are as follows:

Article IV – Units

1 Occupation and Use

The occupation and use of the Units shall be in accordance with the following restrictions and stipulations:

(e) No Owner shall make any structural change or alteration in or to his Unit or make any change to an installation upon the Common Elements or maintain, decorate, alter or repair any part of the Common Elements, except for maintenance of those parts of the Common Elements which he has a duty to maintain without the written consent of the Board;

3 Not to Overload Floors

The Owner shall not bring, permit or suffer to be brought into the Unit any machinery, equipment, article or thing that by reason of its weight, size or use might damage the floors of the Unit or the Common Elements or might overload the floors beyond their reasonable weight-carrying capacity. If any damage is caused to the Unit or the Common Elements by any machinery, equipment, article or thing or by overloading or by any act, neglect or misuse on the part of the Owner or any of his servants, agents or employees or persons having business with the Owner, the Owner shall within a reasonable time repair such damage at his own expense.

Article VII – Maintenance and Repairs

2. Each owner shall be responsible for all damages to any and all other Units and to the Common Elements which are caused by the failure of the Owner to so maintain and repair his Unit, save and except for any such damages to the Common Elements, for which the cost of repairing same may be recovered under any policy or policies of insurance held by the Corporation.

The Corporation shall make any repairs that an Owner is obligated to make and that he does not make within a reasonable time; and in such event, an Owner shall be deemed to have consented to having repairs done to his Unit by the Corporation; and an Owner shall reimburse the Corporation in full for the cost of such repairs, including any legal or collection costs incurred by the Corporation in order to collect the costs of such repairs, and all such sums of money shall bear interest at the lowest prime bank rate available to the Corporation plus one (1%) per cent per annum. The Corporation shall repair and maintain all the common elements except the window glass of the Units.

Article XI – Indemnification

Each Owner shall indemnify and save harmless the Corporation from and against any loss, costs, damage, injury or liability whatsoever which the Corporation may suffer or incur, resulting from or caused by an act or omission of such Owner, his servants, agents, employees, customers, invitees and licencees of such Owner to or with respect to the Common Elements and/or all other Units, except for any loss, costs, damages, injury or liability caused by an insured (as defined in any policy or policies of insurance) and insured against by the Corporation. All payments pursuant to this clause are deemed to be additional contributions towards the common expenses and recoverable as such.

Article XIII – General Matters and Administration

2. Units, Subject to Declaration, By-laws, Common Elements, Rules and Regulations

All present and future Owners and tenants of Units, their servants, agents, employees, customers, invitees or licensees, shall be subject to and shall comply with the provisions of the Act, this Declaration, the By-laws and any other Rules and Regulations of the Corporation.

The acceptance of a Deed or Transfer or the entering into of a Lease or the entering into occupancy of any Unit, shall constitute an agreement that the provisions of the Act, this Declaration, the By-laws and any other Rules and Regulations, as they may be amended from time to time, are accepted and ratified by such Owner, tenant or resident, and all of such provisions shall be deemed and taken to be covenants running with the Unit and shall bind any person having, at any time, any interest or estate in such Unit as though such provisions were recited and stipulated in full in each and every such Deed or Transfer or Lease or Occupancy Agreement.

B. Roof Repairs

[10] Sometime in 2016, PCC 223 determined that a substantial roof repair was required. Accordingly, in or around September 2016, PCC 223 hired Applewood Roofing and Sheet Metal Ltd. (“Applewood”) to perform the roof repairs. ONTECH Consultants (“ONTECH”) were the consulting engineers.

[11] Applewood first attended at the Property to start the project on or about September 8, 2016. The scope of the work included installation of a new roofing system and drains, raising mechanical systems including the HVAC units, increasing the curb heights below the HVAC units and then setting them back into place. Applewood realized that if the curb heights were not increased, the HVAC units would be set too low on the roof and it could cause leaks into the units below.

[12] It is conceded the roof was a common element. As indicated in the by-law, the HVAC units belonged to the unit owners. Accordingly, a certain amount of cooperation was required. So, in order to complete the scope of the work, Applewood proposed a plan whereby each unit owner would disconnect the HVAC units servicing in their respective units. Then Applewood would lift the HVAC units, install the required curbs underneath, complete the roof repairs, and then set the HVAC units back down to be reconnected by their respective owners.

[13] To set this plan in motion, on September 19, 2016, unit owners were provided with the following written notice:

Applewood Roofing and Sheetmetal will be on-site on Thursday September 29, 2016 from 7:00am-6:00pm to lift all roof top HVAC units FROM 5137-5147, install curbing and complete required roof and flashing work.

It is your sole responsibility to ensure that all ductwork, electrical, etc, is professionally disconnected from the HVAC unit to allow for this lift a minimum of 24 hours prior to Thursday September 29, 2016.

Failure to adhere to this request will result in the lift still taking place and the owner of the unit assuming all responsibility for all damages caused to the HVAC unit, associated components and common elements. [Emphasis in original.]

[14] The Notice also advised that if it was raining on Thursday, September 29, 2016, then the work would be done on the following day. As it happened, continual days of rain caused the roof repair to be delayed until October 22, 2016. Mr. Tung started complaining that the roofing work was causing leaks to the Unit. When Matthew Atkin (“Atkin”), the GSA representative, was asked at trial whether the roof work being done at that point may have caused these leaks, he indicated that he did not know.

[15] On or around September 27, 2016, Mr. Tung went to the rooftop to disconnect the unit as requested. He indicated that upon inspection, he saw that the roofer had already gummed up the openings to his HVAC unit by applying a layer of asphalt blocking the service cover from opening. Mr. Tung provided photos of his old HVAC unit that had some asphalt around the bottom up to a maximum of 2 to 3 inches.

[16] Mr. Tung indicated that by this time he had already disconnected the air ducts on the HVAC. This is evidenced in his email to Atkin on September 27, 2016, at 11:26 a.m., which clearly indicates, “The air duct on the aircon is already disconnected.” Mr. Tung then tried again and was able to disconnect the electrical components in the HVAC on the roof. Disconnections of gas lines were done by Applewood’s subcontractor. Confirmation of the disconnection of the electrical components of the HVAC unit was sent in an email from Mr. Tung to Mr. Guiseppe Di Bratto (“Di Bratto”), Atkin and others on September 27, 2016, at 4:26 p.m. In this email, Mr. Tung states, after complaining about the degree of asphalt on the roof, “Anyway, electrical connections were removed.”

[17] Di Bratto, the President of Applewood, states in his affidavit that he was informed by a technician from Applewood that the technician attended at the unit on September 29, 2016, and was advised by Mr. Tung that he would not allow Applewood to lift the HVAC unit servicing his unit. I have no direct evidence from this technician. Mr. Tung’s evidence on this issue was that on September 15, 2016, he emailed Applewood and told them that Applewood could not enter the Unit for the purpose of repairing the damage caused by the roofing.

[18] On or about September 30, 2016, at 3:54 p.m., Di Bratto emailed Mr. Tung as follows:

When we come next week to finish your unit, do you understand we will disconnect your unit to finish?

Yesterday you told our technician we cannot, lucky it was raining.

[19] Mr. Tung was confused by that as he had already disconnected his unit. This can be seen in his email to Di Bratto of September 30, 2016, at 4:45 PM, wherein Mr. Tung stated, “The HVAC is already disconnected. You can proceed to lift it up.”

[20] Mr. Tung admits that he is not a licensed electrician or HVAC serviceman. That being said, he believes his background provides him with the requisite training to disconnect the HVAC unit without having to hire a “professional”. In fact, he states that in the course of his prior job, he would be in a position to inspect someone else’s work, which included connections to an HVAC unit. He called himself overqualified to do the disconnections requested by GSA.

[21] On an unknown date, Applewood apparently hired a mechanical contractor, namely Climate Comfort Inc. (“Climate”), to inspect all HVAC units at PCC 223. Atkin states that he was advised by Climate that the Tung’s HVAC unit was not properly maintained and not in proper working order. He was also advised by Climate that it did not appear that it had been in good working order for some period of time, was otherwise obsolete and that it should have been discarded or replaced long before the inspection. As a result of this inspection, Atkin claimed that Climate “red-tagged” the HVAC unit belonging to the Tungs.

[22] Mr. Di Bratto also testified that due to his observations, the HVAC system had to be replaced and it had not been in working order for some time. As a result of this, Mr. Di Bratto advised GSA that the “red-tagged” HVAC unit would have to be removed in order to ensure that the roofing project was properly completed to the required standards.

[23] In support of this allegation of the poor condition of the Tung’s HVAC unit, Atkin provided photos of the air conditioning unit which show an older unit with some rust. No direct evidence was provided by Climate, nor was any type of report filed indicating that the HVAC unit was not in proper working order when it was time to lift the HVAC unit, install a curb and finish the roofing work.

[24] On October 21, 2016, Mr. Tung continued to complain to GSA about the water leaks into the Unit. In response to these complaints, Mr. Di Bratto advised Atkin that he has inspected the leak and indicated that all roofing was done except around Mr. Tung’s HVAC unit. Di Bratto also advised Atkin that the Tung’s HVAC unit was red-tagged by the mechanical contractor and they could not work around it. He indicated that the HVAC unit would have to be lifted and removed by the tenant (being Mrs. Tung) so they could roof in the curb that is to be put below the new HVAC unit. Mr. Tung was copied on this email.

[25] On October 22, 2016, when the work was finally to start, Di Bratto entered the Unit to inspect whether the HVAC unit was disconnected. He observed that the duct work coming from the rooftop HVAC unit was strapped to the structure of the building running between the roof and the Unit ceiling. Di Bratto advised GSA that because the HVAC unit was not properly disconnected and was strapped to the duct work of the building, he could not lift that HVAC unit. He further stated that if he did raise the Tung’s HVAC unit as it was currently strapped, it would have caused serious structural damage to the building.

[26] A photograph of the duct work being strapped to the roof joist was made part of the trial affidavit. While the straps are evident, the photo does not show whether the HVAC duct work itself was still connected to the HVAC unit on the roof. Interestingly, at trial, when Di Bratto was asked if he looked close enough to see whether the HVAC duct work was actually disconnected from the HVAC unit on the roof, he stated he did not actually look to see if this was the case. He simply saw the strapping and decided he could not proceed.

[27] Later in the day, Di Bratto emailed Atkin and Mr. Tung and stated that he saw the ductwork that was strapped down to the structure. If the unit had been lifted, he said it would have been a disaster. In response, on October 22, 2016, at 10:41a.m., Mr. Tung stated, “… The air duct has been dis-connected [sic] from the unit as requested by Matthew [Atkin]. There is no connection to the unit. It is safe to lift the HVAC. The strap is a temporary device holding the air duct from falling.”

[28] Di Bratto elected to not lift Tung’s HVAC unit that day and worked around it. This is despite the fact that the HVAC unit was properly disconnected and ready to be lifted since September 27, 2019. Instead, because the unit was allegedly red-tagged, Di Bratto and GSA took the position that Mr. Tung was responsible for lifting and removing the old unit himself and at his own expense, so that they could prepare a proper curb and roof around it before he installed a new HVAC unit.

[29] Di Bratto’s decision to not lift the Tung’s HVAC unit, even though it was disconnected, is confusing. In his affidavit at para. 71, Atkin states, “…[I]t was later discovered that the HVAC unit servicing the Unit was to be replaced, Applewood could have properly installed a curb under the existing HVAC unit at the required height to which a new unit could be properly installed.” In his cross-examination, Atkin admitted that Applewood could have lifted the Tung’s HVAC unit, even if red-tagged, as long as it was properly disconnected. Given the evidence at trial, I find that the Tung’s HVAC unit was properly disconnected and ready to be lifted as of September 27, 2016.

[30] Di Bratto’s evidence on this issue was also confusing. He testified that he could have lifted a “red-tagged” unit as long as it was properly disconnected. He also testified though, that he could not lift a red-tagged or damaged unit because he was not let in the Unit to ensure that it was disconnected before it was lifted. The evidence was clear though, that Di Bratto was let into the Unit on the day the lifting occurred because he was able to take pictures of the strapping around the duct work. He admitted to not looking to see if it was disconnected. He just saw the straps and decided not to lift the unit. His decision to not lift it appeared to be more dependant on the apparent strapping of the duct work, and not the ”red-tag” status of the HVAC unit.

[31] Accordingly, the only evidence that Mr. Tung’s HVAC unit was “red-tagged” or not functioning is through the hearsay evidence of Atkin and Mr. Di Bratto, and therefore inadmissible for the truth of its contents. In addition to having no admissible evidence that the Tung HVAC unit was “red-tagged”, I have no evidence whatsoever about what “red-tagged” means and how that is in any way relevant to Applewood’s ability to lift the unit. In Mr. Tung’s experience, when a unit is “red-tagged” it should be disconnected by a safety inspector to ensure it is not used, and it has to be labeled as such. It needs to be re-inspected again before it is used again. His HVAC unit was never subjected to this – it was never “locked up” as he said would be required if it was truly “red-tagged”.

[32] On November 3, 2016, in an email to Atkin, Mr. Tung does indicate that his HVAC was now a write off but blames the roof work done that caused extensive leaking around his HVAC unit which was not lifted and put on a proper curb. As a result, he stated that he had to replace his HVAC unit.

[33] When PCC 223 advised Mr. and Mrs. Tung that their HVAC unit would have to be lifted and replaced at their own expense, they asked Mr. Tung to coordinate with Applewood, so that the roofing work could be completed at the same time. It was not until an email dated November 3, 2016, at 12:02 p.m. though that Atkin asked Mr. Tung to provide them with 58 hours notice of its installation. The plan was that Applewood would attend at the Property when the old HVAC unit was removed so that they could come in and install a new curb before the new HVAC unit is installed. GSA advised Mr. and Mrs. Tung, “If a new curb is not installed before the new unit, there will be no warranty and you will assume all liability.”

[34] Mr. Tung ordered a new HVAC unit on October 24, 2016 from Can-Air Cooling and Heating Ltd. (“Can-Air”). Mr. Tung instructed Can-Air to build a curb above the roof so as to avoid further leaking.

[35] On November 3, 2016, Mr. Tung had the old HVAC unit removed, a higher curb built and installed a new HVAC unit. He did not advise PCC 223, GSA or Applewood. He stated that there was a short time of expected good weather and his HVAC contractor used that time to come to remove the old unit and then install the new one. Mr. Tung testified that in his earlier communications with Atkin, Atkin never mentioned the required notice. Mr. Tung indicates that he never saw the request for 58 hours notice until after his unit was replaced. When he saw the email, he told Atkin that the HVAC unit had already been changed. Mr. Tung also indicated that the curb constructed by his contractor was actually of better quality than those built by Applewood for other units. He indicated that the curb built for his new HVAC was customized to the dimensions of his own unit and the roof opening.

[36] Sometime between the removal of the Tung’s old HVAC unit and the installation of the new HVAC unit, a neighbouring owner experienced some leaking into his unit. PCC 223 attributed it to the work done by Tung’s contractors when their HVAC was replaced. This neighbour had the water damage repaired at a cost of $779.70.

[37] On November 4, 2016, Mr. Tung sent an email to Atkin indicating that his new rooftop unit was installed and asked that the leaks he experienced be repaired as promised. That same day, Atkin responded,

The leaks are as a result of your old red tagged HVAC unit and your unwillingness to cooperate for its lifting from the beginning as per the consultant.

[38] Di Bratto inspected the new HVAC unit on November 7, 2016, and observed that the HVAC unit, while installed on a curb, had not been raised to the appropriate height. He also advised that new cuts were made to the new roof that they had just installed. These cuts would not only cause leaks in the units below but would render their new warranty on the roof void. He advised management that the improper installation of the Tung’s new HVAC unit required immediate repair.

[39] Later that day, Mr. Silano, the project engineer at ONTECH, wrote an email to Atkin on November 7, 2016, which stated:

Hi Matthew,

After reviewing the video, this new rooftop unit at unit 5143 that was installed by the owner’s own forces after the new roof work was completed has likely compromised the roof’s waterproofing integrity and will likely develop leaks in the new and/or possibility [sic] the existing surrounding roof areas. Action to repair this location of the roof is urgent as weather conditions will soon change given the time of year. A further roof scan may also be required to assess this situation for possible water damage/infiltration. I will be on site this Wednesday at 8:30 am to have a closer look.

[40] I heard no evidence from the consulting engineer, or anyone actually, who could advise what height was actually required. I note that this email from ONTECH does not mention any issues with the height of the curb constructed by Mr. Tung’s HVAC contractors.

[41] As a result of this letter, Applewood re-attended at the Property on or about November 8, 2016, in order to make repairs on an emergency basis. Despite Mr. Tung’s position that he caused no damage, he did agree to disconnect his unit so that it can be lifted by Applewood and the necessary repairs can be done. No one disputed his qualifications to do so. These repairs included repairing the damage to the new warranted roof resulting from improper installation of the new HVAC unit, sealing around the new HVAC unit, installing patio slabs under the new HVAC unit, and moving the new HVAC unit and curb adapter, extending the improperly installed wood curbs and raising the unit. PCC 223 claims that this work was outside the scope of Applewood’s original contract and costed $3,661.20. This amount was invoiced by Applewood to PCC 223 on November 17, 2016.

[42] At no time was Mr. and Mrs. Tung given an opportunity to make the repairs themselves. PCC 223 insisted on using a professional to ensure the roof warranty was honoured and insisted on doing the repairs immediately.

[43] PCC 223 determined that this additional expense should be billed to Mrs. Tung. Despite this, the board of directors of PCC 223 were willing to settle this issue if Mrs. Tung paid the sum of $1,000 to settle any dispute between them. Releases would have to be signed. This offer was not accepted.

[44] Accordingly, on December 20, 2016, counsel for PCC 223 wrote to Mr. Tung referring to Article IV(3), Article VII (2), and Article XI of the Declaration, and stated as follows:

As we have previously advised, you failed to properly remove the connections between your HVAC unit on the roof and the interior of your unit. This prevented the corporation’s agent from elevating the HVAC unit to permit the roofing project to be completed around your HVAC unit. The contractor was required to re-attend and extra costs were incurred. Further, you had a new HVAC unit installed without consulting management and as a result, the roofing project was left exposed around this Unit, resulting in water damage to other units.

[45] Counsel then advised that the sum of $9,242.20 was due and owing, which was comprised of $4,440.90 (being the invoices of Applewood and the costs of repairing the neighbouring unit) plus $4,842.62 in legal fees. I note that this was added incorrectly and the actual total of all three invoices was $9,283.52. The letter ended with the following demand:

Please forward payment by certified cheque or money order to property management within ten (10) days of the date of this letter. Please note that if you fail to make this payment within the stipulated timeline, the Corporation is entitled to commence lien proceedings against you to collect these costs. The consequences of non-compliance can be severe. If you doubt the ability of the Corporation to collect these costs, we strongly suggest that you seek your own legal counsel on this matter.

[46] On January 16, 2017, GSA sent to Mrs. Tung a letter indicating the sum of $9,242.20 remained outstanding. A new demand was made that this amount be paid in full by January 26, 2017. If she failed to pay she was advised that a lien would be prepared for an additional $240, plus disbursements. Again, the parties agree that this amount was not paid by the stipulated deadline.

[47] On or about February 22, 2017, a Notice of Lien to Owner was sent to Mrs. and Mr. Tung at their unit. In this notice, it indicated that the amount of the lien was $9,791.22, and demanded payment by March 6, 2017. This amount consisted of:

• $4,440.90 for unpaid common expenses representing chargeback for expenses incurred
• $4,983.30 for unpaid common expenses representing legal costs as per Article XI of the Declaration
• $67.02 being interest on unpaid common expenses at 3.7% per annum compounded monthly
• $300 for additional legal fees

[48] I note that the legal account rendered included some items which do not appear to be related to PCC 223’s dispute with Mr. and Mrs. Tung. In particular, one line item was from May 10, 2016, several months before the roof work started. There are also entries regarding privacy concerns, emails to the board and manager, some of which do not mention Mr. Tung.

[49] Having received no payment, PCC 223 registered a lien on March 22, 2017, in the sum of $8,503.82. In his affidavit, Atkin states this amount was comprised of the amount paid to Applewood for their extra work in the sum of $3,661.20 and the legal fees paid by PCC 223 in the sum of $4,983.30. I note again an addition error, in that these two sums add up to $8,644.50.

[50] A copy of this lien was sent to Mr. and Mrs. Tung enclosed with a letter demanding the sum of $10,629.65 if paid before April 1, 2017. This amount added additional common expense payments, interest and legal fees. Counsel for PCC 223 indicated that failure to make this payment would result in PCC 223 commencing Power of Sale proceedings to enforce the lien pursuant to s. 85(6) of the Condominium Act.

[51] It is agreed that the Tungs made no payment. Accordingly, on or about May 8, 2017, a Notice of Sale was sent to the Tungs which indicated that if the sum of $11,873.71 was not paid on or before June 26, 2017, PCC 223 would sell the Unit to cover these expenses. Again, no payment was made and this action has proceeded.

III. Analysis

[52] It is clear that if Mrs. Tung or her agents caused damage to the common elements of PCC 223 by her acts or omissions, or the acts or omissions of her agents, then the expense of repairing those damages are properly attributable to her and can be charged as a common element expense. If she doesn’t pay her common element expenses when due, PCC 223 has the right to place a lien on title to the Unit for those costs, plus any reasonable legal fees.

[53] In this case, PCC 223 is claiming the damages as set out in Applewood’s invoice date November 17, 2016, in the sum of $3,661.20. Accordingly, the first question to determine is whether those damages are the result of the acts or omissions of Mrs. Tung or her agents.

[54] For the foregoing reasons, I find that they are not. As the amounts charged to Mrs. Tung’s common elements account should not have been charged to her, there is no basis on which PCC 223 should have registered the lien.

[55] When there is a dispute between the responsibility of a condominium corporation to repair and maintain a common element and a unit owner’s responsibility for damage which it causes to a common element, the following principles apply:

a) The determination of who is responsible for the costs of performing remedial work is a fact-specific exercise, which is dependent on the source of the damage; b) A court is not tasked with making a factual finding regarding the source of the damage with any absolute certainty but, rather, must assess the evidence before it; and c) In assessing the requisite scope of work necessary to repair damage to the common elements, the proposed scope must be reasonable and perfection is not required.

See Landont Limited v. Frontenac Condominium Corporation No. 11, 2021 ONSC 2069, at para. 33; Brasseur v. York Condominium Corporation No. 50, 2019 ONSC 4043, at paras. 86, 87 and 108.

[56] Whether damage occurs from an “act or omission” of an owner in any particular case will depend on the facts of the case at hand: Zafir v. York Region Condominium Corporation No. 632, at para. 20.

[57] PCC 223 takes the position that it incurred these extra costs for two reasons. First, Mrs. Tung failed to professionally disconnect her HVAC unit in order that it could be lifted when Applewood attended at the Property on October 22, 2016. Secondly, PCC 223 claims that Mrs. Tung failed to coordinate with Applewood when she installed her new HVAC unit. That resulted in an improper installation causing damage to the roof, which had to be repaired immediately. PCC 223 argues that these expenses should be charged to Mrs. Tung.

[58] Based on my findings of fact, PCC 223’s first argument cannot succeed. First of all, PCC 223 could point to no authority that required any of its unit holders to hire professional tradespeople to disconnect their HVAC unit. The mechanical subcontractor took care of disconnecting all gas connections. PCC 223 would have no way of knowing what disconnections took place inside of each Unit. It did not monitor any disconnections facilitated by the other owners on the roof. When counsel was asked to point to the authority or statute that required Mrs. Tung to employ a professional to disconnect the HVAC unit, it was admitted that there was none.

[59] In addition, I find that Mrs. Tung did have her HVAC unit disconnected by September 27, 2016, long before Applewood attended to lift the HVAC units and finish the roof repairs. The decision to not lift the Tungs’ HVAC unit was the decision of GSA or Di Bratto, or both. Also, at no time in the prior notice letters from PCC 223 did they ever indicate that the lifting of a unit holder’s HVAC was conditional on that HVAC being new or in proper working order.

[60] It is clear from the evidence that there was a big personality conflict between Mr. Tung, Atkin and Di Bratto, and they were unable to get along. This is especially the case between Mr. Tung and Di Bratto. The correspondence between these gentlemen was disrespectful and immature. Whether it was the result of his frustration with Mr. Tung, or as a result of his miscommunication with Atkin, Di Bratto decided on October 22, 2016, that he would not lift Mrs. Tung’s HVAC unit. This is despite the evidence clearly indicating that Mr. Tung advised Atkin by email on a number of occasions that his HVAC unit was disconnected and ready to be lifted. This is also despite the fact that Di Bratto stated at trial that he could have lifted the HVAC unit, even if “red-tagged” as long as it was disconnected. It was disconnected and Di Bratto indicated that he decided it was not because he saw strapping around the duct work without even making the effort to look to see if the duct work was disconnected. Di Bratto gave no evidence that the electrical connections on top of the roof were not disconnected. All gas disconnections were done by Applewood’s subtrade. Di Bratto’s focus was on the connection of the duct work in the Unit, which he admitted he never looked at.

[61] With respect to PCC 223’s second argument, that too must fail. Had Applewood lifted the Tung’s HVAC unit on October 22, 2016, no further attendance would have been necessary.

[62] With respect to the argument that Mrs. Tung was required to replace her HVAC unit, I am not satisfied on the evidence that this would have been the case had the unit been lifted on October 22, 2016.

[63] First of all, I have no evidence that the Tung’s HVAC unit was “red-tagged.” The party who allegedly made this determination did not give evidence at trial, nor was any type of expert opinion evidence proffered. There is no evidence on when this alleged determination was made. This allegation is based on what Di Bratto was told and what he observed, and what Atkin was told. At best, the evidence is hearsay, which is not admissible as proof that the HVAC unit was “red-tagged”.

[64] Also, it was the evidence of Mr. Tung and of his tenant, Ms. Ngo, that the HVAC unit was operating prior to roofing repairs starting in early September 2016. PCC 223 did not require the tenant to attend at trial to be cross-examined on her evidence. Mr. Tung’s evidence on that issue was not successfully challenged. Mr. Tung’s evidence was that the leaking into the Unit started when the roof repairs started, before the HVAC units had to be lifted. The leaking continued until the roof was completed, which he stated caused substantial damage to his unit, necessitating its replacement. Accordingly, I am not satisfied, on the balance of probabilities, that if the Tungs’ HVAC unit was lifted with the others, that they still would have had to replace the HVAC unit. Granted, it was old, but it was working and could have lasted longer. I have no admissible evidence that says otherwise.

[65] With respect to the installation of the Tungs’ new HVAC unit, the difficulty is twofold. First, had the HVAC unit been lifted with the other units on October 22, 2016, Applewood would have constructed the curb it found satisfactory, and Can-Air would not have had to construct anything, eliminating the risk of damaging the roof. Second, the amount charged by Applewood included not only the costs of roof repairs, but the cost of lifting the unit and constructing the curb below. The lifting of the unit and the construction of the curb was part of Applewood’s original scope of work. It was Applewood that choose not to do so on October 22, 2016, necessitating the need to return.

[66] I concede that Mr. Tung was an extremely frustrating man to deal with. He frequently complained about GSA, their level of service and their expense. He accused them of being negligent in their duties. He complained to them about leaks and the lack of response to his complaints. I suspect Di Bratto’s decision to not lift Mr. Tung’s HVAC unit on October 22, 2016 was the direct result of his frustration with him. It does not diminish the fact though, that this decision set forth a course of events that resulted in Applewood having to reattend at the Property to do the work that they were contracted to do on October 22, 2016, but failed to do. Whether that was actually work “extra” to their contract is between Applewood and GSA, but it is not something that Mrs. Tung should be responsible for. Even if I found that Mrs. Tung should be liable for having Applewood reattend to repair the cuts to the roof made by Can-Air, there is no way to determine from the Applewood invoice what part of the labour and materials were for that work alone. In that way, PCC 223 failed to prove what damages were attributable to that particular expense.

IV. Conclusion

[67] Accordingly, I find that the expenses incurred by PCC 223 are not damages caused by the acts or omissions of Mrs. Tung, and therefore there is no valid lien for those expenses. The legal fees associated with the invalid lien therefore cannot be the subject of a lien. This is especially the fact given that some of line items on the invoice do not involve Mrs. Tung at all but pertain to general condominium matters.

[68] Based on my findings, it is not necessary to determine the remaining issues.

[69] Accordingly,

a) This action is dismissed; b) the Claim for Lien registered as Instrument PR3098051 on March 22, 2017, shall be immediately discharged at the sole expense of the Plaintiff; c) The Notice of Sale is void; and d) The parties are encouraged to resolve the issues of costs themselves. If they are unable to, Mrs. Tung is to provide her Bill of Costs and her written costs submissions, limited to four pages, single-sided and double-spaced, on or before June 9, 2023; PCC 223 is to serve and file its Bill of Costs and written costs submissions, with the same size restrictions, on or before June 30, 2023; any reply submission by Mrs. Tung shall be limited to two pages, and must be served on or before July 14, 2023.

Fowler Byrne J.

Released: May 18, 2023