Court File and Parties

COURT FILE NO.: CV-22-89279 DATE: 2024/05/09 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

CARLETON CONDOMINIUM CORPORATION NO. 88 Plaintiff – and – ABDALLAH AHMAD YOUSEF Defendant

Counsel: Cheryll Wood for the Plaintiff Self-represented respondent

HEARD: January 4, 2024 (By videoconference)

RULING ON MOTION

S. CORTHORN J.

Introduction

[1] The plaintiff condominium corporation (“the Corporation”) is comprised of 521 residential dwelling units. The defendant is the registered owner of Unit 8, Level 2, CCC No. 88 (“the Unit”). The Unit is known municipally as 208-3360 Southgate Road in Ottawa, Ontario.

[2] In May 2020, the defendant defaulted for the first time on his obligation with respect to common expenses for the Corporation. The defendant has, since May 2020, made some payments towards common expenses. More often than not, he has continued to default on his common expense obligations. As of January 2024, when this motion was heard, the defendant’s arrears of common expense payments were in excess of $23,000.

[3] Since May 2020, the Corporation has incurred NSF fees of $1,332 because of cheques received from the defendant which bounced. The Corporation has also incurred administrative fees and legal fees related to the Corporation’s efforts to collect the arrears of common expenses and otherwise exercise the Corporation’s rights vis-à-vis the defendant as a unit owner in default of his obligations.

[4] The Corporation first sought to enforce its rights by a motion in writing. That motion was read by the court in January 2023. Pursuant to an endorsement dated January 25, 2023, the Corporation was granted some of the relief it was seeking at the time: C.C.C. No. 88 v. Yousef (25 January 2023), Ottawa, CV-22-89279 (S.C.J.) (“the first endorsement”).

[5] The relief granted in January 2023 includes an order requiring the defendant to deliver vacant possession of the Unit. In addition, the defendant was ordered to pay $15,504.48 for common expense arrears, NSF fees, and administrative fees – all November 9, 2022. The balance of the Corporation’s motion in writing was adjourned to be continued at an oral hearing.

[6] The relief requested on the motion in writing included an order granting the Corporation leave to issue a writ of possession for the Unit. Before the request for that relief could be determined, the Corporation was required to file better evidence to satisfy the court that individuals, other than the defendant, residing in the Unit, had notice of the request for leave to issue a writ of possession.

[7] The Corporation was granted leave to file a factum for the continuation of the motion. The factum, if filed, was to address the request for leave to issue a writ of possession, and the Corporation’s claims for prejudgment interest, postjudgment interest, and costs.

[8] The motion came before the court for an oral hearing in November 2023. The defendant did not file any materials in response to the motion. He did not attend on the return of the motion.

[9] By the fall of 2023, the Corporation had identified three individuals, other than the defendant, who might be residing at the Unit (“the Occupants”). On the return of the motion in November 2023, the motion was adjourned specifically to give the Corporation time to bring the motion to the attention of the Occupants: C.C.C. No. 88 v. Yousef (8 November 2023), Ottawa, CV-22-89279 (S.C.J.) (“the second endorsement”). In December 2023, the Corporation took the steps necessary to bring the motion to the attention of those individuals.

[10] The motion came before the court again on January 4, 2024.

Service of Documents

[11] Based on the affidavit of service of T.F. Sandoval, sworn on December 20, 2023, I am satisfied that (a) the defendant was served with a copy of the second endorsement, and (b) the Corporation took reasonable steps to bring the motion to the attention of the Occupants. Regarding (b), on December 1, 2023, copies of the relevant documents were sent to the Occupants, at the municipal address, by both regular mail and courier.

[12] I find that within the first eight days of December 2023, the defendant and the three possible residents of the Unit had notice of the return of the Corporation’s motion on January 4, 2024.

The Contested Adjournment

[13] At no time prior to January 3, 2024 (the day prior to the return date for the motion), did the defendant or any one of the Occupants respond to the motion materials. On January 3, 2024, counsel for the Corporation received an email from Achment Dimitriadis. Mr. Dimitriadis is one of the Occupants. In his email, Mr. Dimitriadis confirmed to counsel for the Corporation that he resides with the defendant at the Unit.

[14] In response to the email, counsel for the Corporation informed Mr. Dimitriadis that the Corporation intended to proceed with its motion on January 4, 2024.

[15] Mr. Dimitriadis and the defendant were both present for the return of the motion; they were self-represented. Mr. Dimitriadis acknowledged that he was aware, as of early December 2023 of the January 4, 2024 return date. Mr. Dimitriadis informed the court that he and his brother, Misaal Dimitriadis live in the Unit. They would both like to continue to live in the Unit.

[16] The defendant informed the court that he suffers from mental health issues. He hoped to obtain assistance from a healthcare professional.

[17] Both the defendant and Mr. Dimitriadis requested that the motion to be adjourned so they could (a) retain counsel, and (b) attempt, through negotiation with the Corporation to resolve the matter. The Corporation opposed the request for an adjournment of the motion.

[18] For the oral reasons given on January 4, 2024, the request for an adjournment of the motion was denied. The reasons given include the following reasons:

• The defendant and the Occupants failed to respond to the motion materials until the last minute – late in the afternoon on January 3, 2024;
• The defendant has been in arrears of common expenses since May 2020 and has not made any meaningful effort since 2022 to reduce the arrears; and
• The other unit owners are prejudiced by reason of the defendant’s arrears of common expenses. They have been experiencing that prejudice for more than three years.

[19] The court also highlighted to the defendant and to Mr. Dimitriadis that, if they are genuinely interested in resolving the matter, they would have an opportunity, pending the release of the court’s decision on the motion, to attempt to resolve the matter through negotiation with counsel for the Corporation. The defendant and Mr. Dimitriadis were informed that it would be several months before the court would be in a position to release a decision on the motion. The court has not been informed of any resolution reached subsequent to the date on which the decision on the motion was taken under reserve.

The Issues

[20] The following issues remain to be determined on the motion:

1. Is the Corporation entitled to leave to issue a writ of possession for the Unit?
2. To what amount is the Corporation entitled for common expense arrears?
3. To what amount of prejudgment interest is the Corporation entitled?
4. At what rate is postjudgment interest to accrue?
5. To what administrative fees, miscellaneous charges, and costs is the Corporation entitled?

Issue No. 1 - Leave to Issue a Writ of Possession

[21] From the outset, the Corporation has been seeking leave to issue a writ of possession. It has taken time for the Corporation to satisfy the requirements for entitlement to leave to issue a writ of possession. In January 2023, the Corporation met one such requirement by obtaining an order requiring the defendant to deliver vacant possession of the Unit.

[22] The Corporation then encountered a hurdle in its effort to obtain leave to issue a writ of possession. Through its efforts, over time, to serve the defendant with documents, the Corporation became concerned that individuals, other than the defendant, may be residing in the Unit (i.e., the Occupants).

[23] Rule 60.10(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out criteria to be met for the court to exercise its discretion to grant leave to issue a writ of possession. The court is entitled to exercise that discretion “only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled [the moving party] to apply to the court for relief.”

[24] That criterion is addressed in National Bank of Canada v. Ehtisham, 2010 ONSC 1528. At para 10, Master McLeod (as he then was) says, “The court granting leave to issue a writ of possession must either be satisfied that there are no [occupants other than the owner] in possession or that steps have been taken to put all such persons on notice or both.”

[25] Well before December 2023, when they were served with documents for the January 2024 return date for the motion, the two Dimitriadis brothers were aware that the defendant was in arrears of common expenses. For example, in October 2022, the Corporation sent a notice of attornment of rent to Achment Dimitriadis. The letter was sent to him by registered mail at the municipal address for the Unit. In addition, on at least two occasions in 2023 when the Corporation sent documents to or served documents on the defendant by courier, one of the Dimitriadis brothers signed for the documents.

[26] When making submissions on the contested adjournment, Mr. Dimitriadis portrayed himself as someone trying to assist the defendant in navigating the proceeding. While I make no specific finding in the point, it is difficult to believe that the Dimitriadis brothers were, until late 2023, entirely in the dark about this proceeding.

[27] At no time during the submissions made for the purpose of the contested adjournment did Mr. Dimitriadis submit that either he or his brother have a proprietary interest in the Unit. Mr. Dimitriadis did nothing more than express his and his brother’s collective wish to be entitled to continue to reside in the Unit. Mr. Dimitriadis did not describe himself or his brother as the defendant’s tenants. There is no evidence to support a finding that there is a landlord-tenant relationship between the defendant and one or both of the Dimitriadis brothers.

[28] In any event, if granted leave to issue a writ of possession, the Corporation proposes to (a) serve the defendant and any possible occupants of the Unit with notice of the Corporation’s intention to have a writ of possession issued, and (b) provide the Occupants with a final opportunity to produce a tenancy agreement. To date, none of the Occupants has produced a tenancy agreement.

[29] At p. 3 of National Bank, Master McLeod sets out a non-exhaustive list of the matters to be addressed in evidence on a motion for leave to issue a writ of possession: see factors (a) to (i). I have considered those factors, as they relate to the evidence before the court. I am satisfied that the Corporation is entitled to leave to issue a writ of possession. A term to that effect is included in the order made at the conclusion of this ruling. The order incorporates the 30 days’ notice the Corporation proposes to give the defendant and the Occupants of the Corporation’s intention to have a writ of possession issued.

Issue No. 2 - Common Expense Arrears

[30] Pursuant to the first endorsement, the defendant is required to pay the Corporation $15,504.48 for common expense arrears, NSF fees, and administrative fees to November 9, 2022. That amount does not include prejudgment interest. The Corporation’s claims for prejudgment interest and postjudgment interest were not determined at the time.

[31] The $15,504.48 is net of payments made by the defendant, towards common expense arrears, from November 2020 to November 2022. The payments made were sporadic, but served to reduce the arrears by slightly in excess of $7,000.

[32] When before the court in January 2024, the Corporation relied on an Arrears Statement dated December 19, 2023 (“the 2023 statement”). The 2023 statement includes all common expense arrears, NSF fees, administrative fees, prejudgment interest, and legal costs to that date – totalling $48,410.12. That amount includes the $15,504.48 which is the subject of the first endorsement.

[33] When making the monetary order in the first endorsement, the court relied on an Arrears Statement dated November 9, 2022 (“the 2022 statement”). There are inconsistencies between the contents of the 2022 statement and the contents of the 2023 statement, in regard to the payments made by the defendant in the years 2020 to 2023, both inclusive:

• The 2023 statement lists payments made in June, October, and November 2020. The 2022 statement lists only the November 2020 payment;
• The 2022 statement lists a July 2021 payment, which the 2023 statement does not list;
• The 2022 statement lists a February 2021 payment, which the 2023 statement does not list;
• The 2023 statement lists a January 2021 payment, which the 2022 statement does not list; and
• Solely because of the timing of the statements, only the 2023 statements lists a February 2023 payment.

[34] An accurate Arrears Statement is required before the court is in a position to determine the amount of common expense arrears to December 19, 2023.

[35] Counsel for the Corporation shall communicate with the Civil Trial Coordinator to schedule a 30-minute case conference before me. The case conference shall be conducted by videoconference. The purpose of the case conference is to discuss (a) the evidence required to permit the court to make the monetary ruling required, and (b) to identify a date for the continuation of the oral hearing of the motion.

Issue No. 3 - Prejudgment Interest

[36] The Corporation requests that the court set the prejudgment interest rate at 12 per cent per year, compounded monthly. To grant that request, the court must exercise its discretion, pursuant to s. 130(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the CJA”), to order interest at a rate higher than the prejudgment interest rate prescribed by the statute.

[37] In s. 127 of the CJA, the term “prejudgment interest rate” is defined as “the bank rate at the end of the first day of the last month of the quarter preceding the quarter in which the proceeding was commenced, rounded to the nearest tenth of a percentage point”. The statement of claim was issued in May 2022. The prejudgment interest rate prescribed for actions commenced in that month is 2.5 percent.

[38] The Corporation relies on Article IX (41) of the Corporation’s By-Law No. 1 (“the Article”). The Article sets out the steps the Corporation may take in the event of default by a unit owner in payment of common expenses:

In the event an Owner is in default in payment of any levy for Common Expenses or Reserves Funds hereunder and such default continues for a period of fifteen (15) days, the Board may in its sole discretion take such steps as may be necessary to enforce the collection thereof and there shall be added to any amount found due, interest at the rate of 1% per month, or such lower rate of interest as the Corporation may by By-law from time to time determine, and all legal and other collection expenses incurred by the Corporation.

[39] I disagree with the Corporation’s description of the prejudgment interest rate set out in the Article. The rate set is not 12 percent per year; it is one percent per month. The compounding of interest is implicitly rather than explicitly stated. Interest owing is calculated at the end of each month on the total (principal and prior accrued interest) then owing.

[40] I agree with the Corporation’s submission that unit owners are contractually bound to pay prejudgment interest in accordance with the Article: C.C.C. No. 671 v. Friend, 2021 ONSC 7379, at para. 44. There is no evidence to support a conclusion that the Article should not be enforced.

[41] Is the Corporation entitled to prejudgment interest at the rate prescribed by the Article on all amounts found owing or only on common expense arrears? The Article speaks of “any amount found due” in the context of enforcement proceedings. I am satisfied that it is reasonable to include in “any amount found due” not only the common expense arrears themselves, but also administrative fees and NSF charges incurred by the Corporation as a result of its efforts to collect common expense arrears.

[42] Once the court has made a further monetary order, the Corporation will be required to provide the court with affidavit evidence addressing the calculation of prejudgment interest. The type of evidence required and the logistics for the presentation of that evidence to the court will be addressed at the case conference referred to under Issue No. 2.

Issue No. 4 - Postjudgment Interest

[43] The Corporation originally requested that the postjudgment interest rate be set at 24 percent per year. On the return of the motion in January 2024, the Corporation withdrew that request. The Corporation now asks the court to set the postjudgment interest rate at the rate prescribed in the Article – one percent per month, compounded monthly. To grant that request, the court must once again have exercise its discretion, pursuant to s. 130(1)(b) of the CJA, to order interest at a rate higher than the postjudgment interest rate prescribed by the statute.

[44] The postjudgment interest rate applicable to money owing under an order is prescribed by s. 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the CJA”). Section 127 of the CJA defines the term “postjudgment interest rate” as follows: “the bank rate at the end of the first day of the last month of the quarter preceding the quarter in which the date of the order falls, rounded to the next whole number where the bank rate includes a fraction, plus 1 percent”.

[45] The Corporation has not provided any evidence of the bank rate in late 2023 or early 2024. The court takes judicial notice of the fact that, in late 2023 and early 2024, the bank rate has been in the single-digit range. A postjudgment interest rate based on the statutory definition would fall below the rate prescribed by the Article.

[46] I find it is reasonable for the court to exercise its discretion and award postjudgment interest at the rate prescribed by the Article. If the court does not exercise its discretion in that manner, the defendant will end up paying postjudgment interest at a rate lower than the rate at which he contractually agreed to pay interest on amounts owing as a result of his failure to meet his common expense obligations. The defendant would receive a benefit from his continuing default and from putting the Corporation to the task of taking enforcement proceedings. Other unit owners in arrears who make efforts to reduce their arrears, without putting the Corporation to the task of an enforcement proceeding, would be subject to the higher rate prescribed by the Article.

[47] For the reasons discussed in relation to prejudgment interest, I am satisfied that the interest rate prescribed by the Article applies to “any amount found due” including common expense arrears, administrative fees, NSF charges, and costs. In summary, the postjudgment interest applicable to all amounts which the defendant is ordered to pay shall be one percent per month, compounded monthly.

Issue No. 5 - Administrative Fees, NSF Charges, and Costs

[48] In both the 2022 statement and the 2023 statement, the only administrative fee claimed is $965 for the registration of a condominium lien. That amount is included in the $15,504.58 which the defendant was ordered in the first endorsement to pay. There are no additional administrative fees owing.

[49] Also included in the $15,504.48 which the defendant was ordered in the first endorsement to pay is $851 for NSF charges. The 2023 statement includes NSF charges totalling $1,332. That amount includes the $851 already addressed. The defendant is required to pay the difference between those two amounts - $481 ($1,332 - $851).

[50] The Corporation requests its costs on the full indemnity scale in the approximate amount of $21,300. The hearing of the motion is not yet concluded; the Corporation will continue to incur costs. For that reason, fixing the amount of costs to which the Corporation is entitled is adjourned to be determined when the hearing of the motion is completed and the court releases its final ruling on the motion.

[51] The court is, however, in a position to determine the scale on which costs are payable. Even though the hearing of the motion is not yet concluded, it is clear that the Corporation is the successful party on the motion.

[52] The Corporation relies on s. 85(1) of the Condominium Act, 1998, S.O. 1998, c. 19. That section stipulates that,

If an owner defaults in the obligation to contribute to the common expenses payable for the owner’s unit, 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.

[53] The Corporation emphasizes the reference in s. 85(1) to “all reasonable legal costs”. This court has interpreted that phrase to mean costs on the full indemnity scale: C.C.C. No. 671 v. Friend, 2022 ONSC 47 (“Friend No. 2”), at para. 4 and citing C.C.C. v. Burdet, 2015 ONSC 1361, at para. 45. The policy which underlies that interpretation is the protection of innocent unit holders, by shifting the burden of legal costs to the defaulting unit owner: Friend No. 2, at para. 5.

[54] The Corporation is entitled to its reasonable costs, on the full indemnity scale, for steps taken in attempting to collect amounts owing by the defendant and of the motion. As previously mentioned, the quantum of costs to which the Corporation is entitled remains to be determined at a later stage of the proceeding.

Summary

[55] For the reasons set out above, the court makes the following order:

1. Carleton Condominium Corporation No. 88 is granted leave to issue a writ of possession for the Unit on the following terms: a) Carleton Condominium Corporation No. 88 (“the Corporation”) shall forthwith serve the defendant, Achment Dimitriadis, and Misaal Dimitriadis (“the Dimitriadis brothers”) with a copy of this endorsement and with a notice of the Corporation’s intention to have a writ of possession issued in accordance with this endorsement; b) Service of a copy of the documents referred to in paragraph (a), above, shall be effected by sending copies of the documents to the defendants and to the Dimitriadis brothers by regular mail and by courier at the municipal address for the Unit. Service of the documents shall be deemed effective on the fifth day following the date on which the documents are sent by regular mail; c) The defendant and/or the Dimitriadis brothers shall, within 30 days of the date on which they are served with the endorsement, produce to the Corporation a copy of any lease or tenancy agreement upon which they rely as evidence of the existence of a landlord-and-tenant arrangement between them; and d) If, after the expiration of the 30-day period referred to in paragraph (b), above, the defendant and/or the Dimitriadis brothers have failed to produce any document described in paragraph (b), above, and to satisfy the Corporation that a landlord-and-tenant arrangement exists, the Corporation shall be entitled to have a writ of possession issued for the Unit.

2. The defendant shall pay to the Corporation the sum of $481 for NSF charges incurred by the Corporation.

3. The prejudgment interest rate applicable to all amounts which the defendant is ordered to pay to the Corporation, excluding costs of the proceeding, is one (1) percent per month and compounded monthly.

4. The postjudgment interest rate applicable to all amounts which the defendant is ordered to pay to the Corporation, including costs of the proceeding, is one (1) percent per month and compounded monthly.

5. The defendant shall pay to the Corporation, on the full indemnity scale, the costs incurred by the Corporation in attempting to collect amounts owing by the defendant, including its costs of this proceeding.

6. The motion is adjourned and shall be continued following a case conference, with the following issues remaining to be determined: a) The amount of common expense arrears owing to the Corporation as of December 19, 2023; b) The amount of prejudgment interest owing to the Corporation; and c) The quantum of costs to be paid by the defendant to the Corporation on the full indemnity scale.

[56] Counsel for the Corporation shall (a) communicate with the Civil Trial Co-ordinator to schedule the case conference discussed above, and (b) give the defendant notice of the date and time of day of the case conference. The defendant is entitled to participate in the case conference.

[57] The court grants the Corporation leave to take out an order restricted to the terms set out in paragraphs 1(a)-(d), above (i.e., regarding the writ of possession). If the Corporation chooses to take out such an order, the requirement to obtain the approval of the defendant as to the form and content of the order is dispensed with.

[58] At the case conference, the court intends to address the terms of the order to ultimately be taken out in which all monetary relief is addressed. For simplicity and ease of reference, it makes sense for a single order, addressing all monetary relief, to be issued and entered in due course.

Madam Justice S. Corthorn

Released: May 9, 2024