Reasons for Judgment

Court File No.: CV-24-00721415-0000
Date: 2025-02-03
Ontario Superior Court of Justice

Between:
Metropolitan Toronto Condominium Corporation No. 1067, Plaintiff
– and –
1388020 Ontario Corp., Defendant

Applicant Counsel: Antoni Casalinuovo
Respondent Counsel: Birinder Singh Ahluwalia

Heard: December 5, 2024

Judge: Merritt

Note: these reasons have been amended on March 20, 2025 at para. 96 to correct the reference to para. 95

Overview

[1] The Plaintiff Metropolitan Toronto Condominium Corporation No. 1067 (“MTCC 1067”) is a non-profit condominium corporation which controls, manages and administers the assets and property of a commercial condominium development (the “Condo”).

[2] The Defendant 1388020 Ontario Corp. (“BSA”) is the registered owner of units 9 to 16, Level 6 of MTCC 1067 (the “BSA Units” or the “Units”) at the Condo and is in possession of the BSA Units.

[3] The Plaintiff brings a motion for summary judgment seeking an order for payment of common expense arrears which are unsecured by the Condominium Lien and for vacant possession of BSA’s unit(s), so that MTCC 1067 can proceed to sell same to recover the money it claims is owing to it.

[4] BSA is a corporation which is not represented by counsel as required by r. 15.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[5] At the motion today, Dr. Birinder Singh Ahluwalia (“Dr. Ahluwalia”) appeared and asked that he be allowed to represent BSA. No motion under r. 15.01(2) was scheduled for today; however, Dr. Ahluwalia did upload to CaseCenter a Notice of Motion seeking an order that he be allowed to represent BSA in this action with other relief including an order that further cross examinations be scheduled in person, that “signature analysis of Ms. Diana Young be done by experts”, and that BSA’s responding motion record be considered a cross motion. There was no affidavit filed in support of the motion. Dr. Ahluwalia also uploaded to CaseCenter a Notice of Motion for an order allowing BSA to amend its counterclaim to add parties. There was no affidavit filed in support of this motion and the motion was not scheduled with the court.

[6] I declined to hear any motions—other than the motion for summary judgment—as they were not properly before the court.

[7] I decided to allow Dr. Ahluwalia to make submissions on behalf of BSA in response to MTCC 1067’s summary judgment motion today but did not grant Mr. Ahluwalia leave to represent BSA other than for this limited purpose.

[8] MTCC 1067’s motion was scheduled for 3.5 hours. At the outset of the hearing, MTCC 1067 moved to strike portions of Dr. Ahluwalia’s affidavit. When it became obvious that the motion to strike would likely occupy most, if not all, of the time scheduled for the motion, MTCC 1067 withdrew the motion to strike and the summary judgment motion proceeded. The hearing lasted until the end of the court day.

Decision

[9] For the reasons set out below I grant summary judgment in favour of MTCC 1067.

Background Facts

[10] There is no dispute that, as the registered owner of the Units, BSA has an obligation to contribute its proportionate share to MTCC 1067’s common expenses, payable monthly and fixed by MTCC 1067’s Board of Directors, in accordance with the provisions of the Condominium Act, 1998, SO 1998, c 19 (the “Act”) and the provisions of MTCC 1067’s Declaration and By-Law 1.

[11] There is also no dispute that if BSA does not pay its common expenses in full, MTCC 1067 can register a condominium lien.

[12] On May 3, 2024, MTCC 1067 sent a Notice of Lien to Owner to BSA pursuant to s. 85 of the Act advising of the arrears it claims are owing and the statutory lien in favour of MTCC 1067.

[13] On May 16, 2024, MTCC 1067 registered a Certificate of Lien against the Units. The Notice of the Condominium Lien was duly sent to BSA and those who have encumbrances on title to the Units.

Positions of the Parties

[14] MTCC 1067 submits that BSA defaulted in paying its common expenses and any money received by MTCC 1067 was applied to the oldest arrears. The Plaintiff sent multiple notices to BSA advising of the arrears and began enforcing the arrears by starting Condominium Lien proceedings.

[15] Dr. Ahluwalia submits that MTCC 1067 and he entered into Agreements dated December 12, 2017, August 26, 2020, December 10, 2020, December 7, 2021, and December 5, 2022, pursuant to which he gave large sums of money to MTCC 1067 and MTCC 1067 agreed to give him a discount of 25% in exchange for paying BSA’s common expenses in cash (the “Agreements”). He says he paid the amounts owing under the Agreements in cash and there are no arrears.

[16] Dr. Ahluwalia also says that MTCC 1067’s ledger showing the amount of common expenses owing by BSA is fraudulent.

The Evidence

[17] MTCC has produced a ledger which shows the common expenses billed to BSA and amounts paid by BSA (the “Ledger”).

[18] BSA says MTCC 1067’s Ledger is fraudulent. BSA has produced copies of the Agreements and receipts which Dr. Ahluwalia says are evidence of his payments in cash pursuant to the Agreements.

[19] The Agreements appear to be signed by Ms. Young, Kim Chu (“Chu”), Liu, Hugh Kuang (“Mr. Kuang”) and there are other signatures that are indecipherable.

[20] On the cross examination of Ms. Young, Dr. Ahluwalia identified Tuba Karbasi (“Ms. Karbasi”) as one of the individuals who signed the Agreements. Ms. Karbasi is employed by Dr. Ahluwalia and works at Dr. Ahluwalia’s clinic which is operated out of BSA’s Units. On Ms. Young’s cross examination, Dr. Ahluwalia identified Mr. Kamran Syed (“Mr. Syed”) as one of the individuals who signed the Agreements. Mr. Syed also works for Dr. Ahluwalia in his clinic.

[21] MTCC 1067 denies that it entered into the Agreements or agreed to give BSA a 25% reduction in its common expenses in exchange for paying in cash. It also denies receiving any payments in cash from BSA.

[22] The dates of the Agreements, amounts paid and signatories are as follows:

1. December 12, 2017 – $50,000 – signatories Ahluwalia, Kuang, Young, Lui, and one indecipherable signature.
2. August 26, 2020 – no amount specified, just an agreement to pay common expenses in cash – signatories Ahluwalia, Kuang, Young, Liu and one indecipherable signature.
3. December 10, 2020 – $100,000 – signatories Ahluwalia, Kuang, Young, Liu, and one indecipherable signature.
4. December 7, 2021 – $125,000 – signatories Ahluwalia, Kuang, Young, Liu, Chu, one indecipherable signature.
5. December 5, 2022 – $50,000 – signatories Ahluwalia, Kuang, Young, and Liu.

[23] On each of the Agreements, there are places for two witnesses to sign but there are no names and the signatures are indecipherable.

[24] Ms. Young says that it is not her signature on the Agreements and that some of her alleged signature pre-date her involvement with MTCC 1067. Ms. Young says that the signature which purports to be the signature of Mr. Kuang, who is the former property manager of the Condo, does not look like the actual signature of Mr. Kuang. Ms. Young says she is the only director named Liu is Vivan Liu. Ms. Liu says she has never signed any of the Agreements and that the signatures bearing the last name Liu pre-date Ms. Vivian Liu’s tenure as a director of MTCC 1067. Ms. Young says she does not recognize any of the other signatures on the Agreements.

[25] There are also receipts for varying amounts of cash, each of which says: “Cash Pick up by the appointed officer(s) of MTCC 1067 as per agreement dated August 26, 2020” (the “Receipts”). The dates of the Receipts, amounts and officers’ names are as follows:

1. October 7, 2019 – $1,000 – name of officer picking up cash is Chu.
2. September 6, 2020 – $26,843 – names of officers picking up cash are Kuang and Young.
3. March 12, 2021 – $30,525 – names of officers picking up cash are Kuang and Young.
4. November 26, 2022 – $35,790.60 – names of officers picking up cash are Kuang, Young and Chu.
5. December 10, 2023 – $95,760 – names of officers picking up cash: Young, Chu and Lui.

[26] On each Receipt there are places for two witnesses to sign but there are no names and the signatures are indecipherable.

[27] MTCC 1067 assessed BSA the amount of $110,883.29 after March 1, 2024, which is the amount secured by the Condominium Lien.

[28] If I accept the evidence of BSA paying cash, the unsecured arrears are $55,386.50.

[29] If I reject the evidence of BSA paying cash, the unsecured arrears are $385,005.

The Issues

[30] There are three issues as follows:

1. Is summary judgment appropriate?
2. Does BSA owe arrears for its common expenses?
3. Does BSA’s conduct amount to oppression and if so, what relief is appropriate?

Analysis

Issue 1: Summary Judgment is Appropriate

[31] Rule 20.04(2)(a) provides: “The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.

[32] Rule 20.04(2.1) sets out the court’s powers on a motion for summary judgment as follows:

[33] In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[34] In Hryniak v. Mauldin, 2014 SCC 7, para 66, the Supreme Court of Canada established a road map outlining how a motions judge should approach a motion for summary judgment:

[T]he judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[35] There is no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits of the motion. This will be the case where the process (1) allows the court to make necessary findings of fact, (2) allows the court to apply the law to the facts, and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak, at para. 49; Moffitt v. TD Canada Trust, 2023 ONCA 349, para 40.

[36] The court should use its enhanced powers and decide a motion for summary judgment only where it leads to “a fair process and just adjudication”: Ang v. Lin, 2023 ONSC 4446, para 15, citing Mason v. Perras Mongenais, 2018 ONCA 978, para 44, and Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832, paras 3-6.

[37] In Joshi v. Chada, 2022 ONSC 4910, Glustein J. sets out the relevant legal principles applicable to summary judgment as follows:

i. The purpose of r. 20 of the Rules is to (a) eliminate claims that have no chance of success at trial, and (b) provide judges with fact-finding powers to be used on a summary judgment motion: Hryniak, at paras. 44-45, 66;

ii. The evidence on a summary judgment motion must enable the motion judge to be confident that they can fairly resolve the dispute: Hryniak, at para. 57;

iii. The motion judge’s enhanced powers allow the court to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence: Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, para 83;

iv. The focus of a summary judgment motion is not on what kind of evidence could be adduced at trial, but rather on whether a trial is required: Hryniak, at para. 56;

v. The court is entitled to assume that it has all the evidence that would be available at trial related to the matters at issue: Portuguese Canadian Credit Union v. Pires, 2011 ONSC 7448, para 11, aff’d 2012 ONCA 335;

vi. The moving party has the onus of proving that there is no genuine issue requiring a trial. Then, the onus shifts to the responding party to provide evidence of specific facts showing that there is a genuine issue requiring a trial: Sweda Farms Ltd. et al. v. L.H. Gray & Son Limited et al., 2013 ONSC 4195, paras 26-27;

vii. Summary judgment is not appropriate if the credibility of the parties is squarely in issue and requires a trial: Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855, para 9;

viii. 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. “It is not always a simple task to assess credibility on a written record. If it cannot be done, that should be a sign that oral evidence or a trial is required”: Cook v. Joyce, 2017 ONCA 49, para 92, citing Trotter Estate, 2014 ONCA 841, para 55; and

ix. The court must take “great care” in assessing credibility and reliability on affidavit evidence, since “[e]vidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice”. Consequently, the motion court must “ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all”: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, para 44.

[38] The court can draw an adverse inference that there is no better evidence available than that which is provided by that party: Travelers Insurance Company of Canada v. LCL Builds Corporation, 2018 ONSC 1805, para 46; S.N.S. Industrial Products Limited v. Omron Canada Inc., 2018 ONCA 278, para 5.

[39] The court must take a hard look at the evidence. While the onus is on the moving party to establish there is no issue requiring a trial, the responding party must “lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club.

[40] The requirement to put one’s best foot forward includes taking steps to compel production prior to the return of a summary judgment motion: Castle Building Centres Group Ltd. v. The Rehill Company Limited, 2023 ONCA 237, para 34; Martel v. City of Ottawa and DeLoyde, 2024 ONSC 3738, para 47.

[41] If I do not resort to the new powers under r. 20.04(2.1), there is a genuine issue for trial because there are credibility issues regarding whether the Ledger is accurate and an issue as to whether BSA is in arrears or paid cash such that there is no balance owing. However, I am satisfied that a trial can be avoided and I can come to a fair and just result by using the powers under r. 20.04(2.1) because I can weigh the evidence and evaluate the credibility of the deponents based on the evidence filed. This matter is appropriate for summary judgment.

[42] Aside from Dr. Ahluwalia’s evidence that he paid cash, there is no other defence.

[43] I do not accept Dr. Ahluwalia’s submission that MTCC 1067’s deponent Diana Young (Ms. Young) admitted that she and counsel for MTCC concocted the Ledger showing the arrears of common expenses owing by BSA and that it is fraudulent.

[44] In her affidavit, Ms. Young says that MTCC 1067’s property manager and director Mr. Kuang left without prior notice and abandoned the management of MTCC 1067 in March 2021. He failed to transfer MTCC 1067’s records and the records had to be recreated. Ms. Young says she was directly involved in and oversaw the reconstruction of the records and now MTCC 1067 has a full understanding of its operations.

[45] Under cross examination Ms. Young explained that she reconstructed MTCC 1067 financial records by re-inputting the documents into QuickBooks.

[46] MTCC 1067 produced audited financial statements for the fiscal years ending in 2017, 2018, 2019, 2020, 2021 and 2022. The auditor says MTCC 1067’s financial statements present fairly in all material respects the statements of the organizations for those years.

[47] In answer to questions asked on the cross examination of Ms. Young on January 11, 2024, MTCC 1067 produced its bank statements relating to its operating and reserve fund for the years 2020, 2021, 2022 and 2023.

[48] There is nothing to support Dr. Ahluwalia’s bald allegation that the Ledger is fraudulent.

[49] I do not accept Dr. Ahluwalia’s evidence that he made an agreement to pay BSA’s common expenses in cash in exchange for a 25% discount and that he paid his common expenses in cash. Dr. Ahluwalia’s evidence is not credible and I reject it for the following reasons.

[50] BSA failed to provide evidence from any witnesses including the two clinic employees Ms. Karbasi and Mr. Syed who Dr. Ahluwalia says signed the Agreements as witnesses.

[51] Ms. Young denies signing the Agreements and says that it is not her signature that appears on them. Despite suggesting an expert in handwriting analysis should be retained, BSA did not submit expert evidence to establish that the signature on the Agreements that purports to be Ms. Young’s signature is in fact Ms. Young’s signature.

[52] Mr. Kuang left MTCC 1067 in March 2021, and yet the Receipt dated November 26, 2022 purports to have his signature.

[53] Mr. Kuang did not provide any evidence on this motion and failed to attend a cross-examination when served with a Notice of Third Party Examination by MTCC 1067.

[54] Ms. Liu denies that it is her signature on the Agreements and Releases.

[55] There has never been a director, officer or anyone affiliated with MTCC 1067 with the surname Chai, Choi, Lui and/or Chu who appear to be signatories to one of the Agreements and some of the Receipts.

[56] Dr. Ahluwalia admitted payment by cheque is the easiest way to track payments of common expenses.

[57] Dr. Ahluwalia offered no explanation as to how BSA had significant amounts of cash available to pay BSA’s common expenses. The only evidence regarding the sources of BSA’s revenues is that BSA is paid by private or public insurers.

[58] Dr. Ahluwalia did not provide documents such as bank statements or other financial records to corroborate the amounts in the Receipts.

[59] The only proof of payments for common expenses made by BSA was the cheques which MTCC 1067 produced in its materials on this motion. There were cheques dated in 2021 and 2023. The last cheque from BSA for common expenses was dated May 2023. There were no cheques for 2018, 2019, 2020 or 2024. Dr. Ahluwalia did not produce any cheques, nor bank statements to corroborate that he made the payments set out in the Agreements and Receipts.

[60] It is Ms. Young’s understanding that accounting principles applicable to not-for-profit condominium corporations prohibit MTCC 1067 from accepting cash as payment for common expenses and that if it did accept or process cash payments, this would be flagged by its auditors.

[61] It is MTCC 1067’s policy not to accept cash except for small amounts for things such as keys, and MTCC 1067’s bank will not accept cash payments.

[62] It does not make sense that a receipt for cash dated October 9, 2019 would say on the top of it “Cash Pick up by the appointed officer(s) of MTCC 1067 as per agreement dated August 26, 2020”.

[63] It does not make sense that on the Agreement dated August 26, 2020, Dr. Ahluwalia’s signature is dated December 26, 2020, which is four months after the date of the witnesses’ signatures on August 26, 2020.

[64] It is not logical that BSA would pay its common expenses in cash to MTCC 1067 when Dr. Ahluwalia has believed since 2016 that the members of its management are not transparent, engage in fraudulent activity and are corrupt.

[65] It is not logical that BSA would continue use cash to pay almost $200,000 of its common expenses after it knew MTCC 1067 was not acknowledging the alleged cash payments when it notified BSA in 2022 that it was in arrears with respect to its common expenses.

[66] The idea that MTCC 1067 would offer a 25% discount in exchange for payments in cash is not plausible. It is also contrary to the Act. Unit owners cannot contract out of their statutory obligation to pay common expenses. Any agreements made outside of the constraints of the Act cannot stand: the Act, ss. 84 and 176; Peel Standard Condominium Corporation No. 767 v. 2069591 Ontario Inc., 2012 ONSC 3297, paras 33-34.

[67] On his cross-examination Dr. Ahluwalia was evasive, argumentative and failed to answer proper questions.

[68] Dr. Ahluwalia’s evidence that BSA owes nothing cannot be true. Even if I were to accept Dr. Ahluwalia’s evidence of the cash payments at face value, BSA would still have a significant amount in arrears of common expenses. The alleged cash payments are $329,618.60. There are $661,354.20 of payments noted in MTCC 1067’s records. These two amounts total $990,972.80. From January 2018 to September 2024, MTCC 1067 assessed BSA at $1,157,242.59 in common expenses. The shortfall between the amount assessed and the amount paid (including the alleged cash payments) is $166,269.79.

[69] I find that MTCC 1067 and BSA did not enter into the Agreements, and BSA did not pay cash as alleged in the Receipts. Having resolved the credibility issues using the enhanced powers under r. 20.04(2.1) to weigh the evidence and evaluate the credibility of the deponents based on the evidence filed, I find that this matter is appropriate for summary judgment.

Issue 2: BSA Owes Arrears for Common Expenses

[70] Section 84 of the Act requires BSA to contribute to MTCC 1067’s common expenses in its proportionate interest in the common elements, as specified in Schedule “D” of MTCC 1067’s Declaration. These contributions are collected from all unit owners via monthly payments made to MTCC 1067. Common expenses are defined as expenses related to the performance of the objects and duties of a condominium corporation and all expenses are specified as common expenses in the Act or MTCC 1067’s Declaration.

[71] BSA’s common expenses are due on the first day of the month and interest on arrears accumulates at a rate of 30% above TD Bank’s commercial lending rate.

[72] MTCC 1067 depends on the payment of common expenses by all unit owners because it is a non-profit corporation. If one owner fails to pay, the others bear the burden.

[73] All unit owners are required to pay common expenses. There is no provision in the Act that exempts an owner from its obligation to pay its full share of the common expenses.

[74] From January 2018 to September 2024, MTCC 1067 assessed BSA’s common expenses to be $1,157,242.59. Since January 2018, BSA paid $661,354.20. Therefore, BSA owes $495,888.39.

[75] Section 85 of the Act empowers MTCC 1067 to register the Condominium Lien on the Defendant’s Units due to BSA’s failure/refusal to pay its common expenses in full. The Condominium Lien(s) secures all common expense arrears along with interest and legal costs incurred in the collection or attempted collection of the arrears. Upon BSA’s default, MTCC 1067 had the right to lien the Defendant’s Unit(s). Accordingly, MTCC 1067 caused a Notice of Lien to Owner to be sent to BSA as prescribed by the Act for Unit(s) where it was able to lien. Expenses incurred by MTCC 1067 in connection with the issuance of the Notice of Lien are recoverable pursuant to the Act, as same form part of the attempted collection of the debt.

[76] MTCC 1067 assessed BSA $110,883.29 from March 2024 to September 2024. This amount represents the portion of common expense arrears that are secured under the Condominium Lien. The Condominium Lien keeps increasing each month as BSA fails to pay its common expenses.

[77] The amount of BSA’s common expenses which is unsecured is $385,005.10 (the “Unsecured Common Expenses”).

Issue 3: Oppression, Unfair Prejudice and Unfair Disregard

[78] MTCC 1067 submits that BSA’s conduct in repeatedly failing to pay its common expenses is oppressive and unfairly prejudicial to the other unit owners.

[79] Section 135(2) of the Act provides as follows:

On an application, if the court determines that the conduct of an owner, a corporation, a declarant or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant, it may make an order to rectify the matter.

[80] The test for oppression as set out in BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, para 56 is as follows:

• Does the evidence support the reasonable expectation asserted; and
• Does the conduct complained of amount to oppression, unfair prejudice or unfair disregard?

[81] BSA is required to continue paying its common expenses regardless of whether it disputes the amounts that MTCC 1067 claims are owing: s. 84(3)(b) of the Act; 1716243 Ontario Inc. v. Muskoka Standard Condominium Corporation No. 54, 2014 ONSC 1848, para 27; Carleton Condominium Corporation No. 396 v. Burdet, 2012 ONCA 234, para 9; Carleton Condominium Corporation No. 396 v. Burdet, 2015 ONSC 1361, para 96.

[82] BSA should have paid all disputed amounts of common expenses and sued for any overpayment. Had it done so, it would have prevented MTCC 1067’s costs from being secured under the Condominium Lien and/or triggered the cost consequences under s. 134(5) of the Act: York Condominium No. 187 v. Sandhu, 2019 ONSC 4779, para 42; Burdet, 2015 ONSC 1361, at paras 96-98.

[83] The Plaintiff has repeatedly warned the Defendant about the cost consequences of disputing the Condominium Lien, including providing BSA case law on this very issue. In spite of prior warnings, the Defendant: i) failed to respond to MTCC 1067’s letters or where responses were made, they contain vexatious allegations; ii) continued to deny any amounts owed; and iii) refused to render payments for common expenses, which accumulate with each passing month. As such, the Condominium Lien continues to increase in value each month (notwithstanding that interest and legal fees are added to the debt).

[84] I find that the evidence supports that MTCC 1067’s reasonable expectation was that BSA would pay its common expenses. I also find that BSA’s failure to do so amounts to unfair prejudice and unfair disregard of the interests of MTCC 1067 and the other unit owners. The interests of the other unit owners is a relevant consideration: Hakim v. Toronto Standard Condominium 1737, 2012 ONSC 404, para 38.

[85] The extensive common expense arrears owed by the Defendant are not entirely secured by the Condominium Lien as some of these arrears are outside the 90-day timeframe for lien registrations given that BSA’s arrears date back to January 2021.

[86] Sections 135 and 136 of the Act give the court broad remedial jurisdiction to make any order the judge deems proper. The courts’ power to fashion a remedy has been described as “awesome”: Irving Investments Ltd. v. York Condominium Corp. No. 21, 2022 ONSC 5967, para 30, citing McKinstry v. York Condominium Corp. #472, para 33. In order to ensure that MTCC 1067 can recover the Unsecured Common Expenses, and to ensure this burden is not borne by the other owners, I order that the Unsecured Common Expenses be secured by the Condominium Lien.

Possession

[87] MTCC 1067 intends to sell BSA’s Units, via power of sale, under the Condominium Lien and accordingly, requires vacant possession of the Units to do same.

[88] I find that BSA has failed to pay its common expenses and that BSA owes $495,888.39.

[89] On May 3, 2024, MTCC 1067 served a Notice of Condominium Lien as required under s. 85(4) of the Act.

[90] The Notice of Condominium Lien was sent to BSA and all those who have encumbrances on title.

[91] MTCC 1067 registered a Certificate of Lien on BSA’s Units on May 16, 2024.

[92] The arrears in common expenses are still outstanding.

[93] BSA’s conduct unfairly prejudices the innocent owners of the Plaintiff who are required to bear the financial burden of the Defendant’s acts or omissions.

[94] MTCC 1067 is entitled to vacant possession of BSA’s Units.

Disposition

[95] I grant MTCC 1067 summary judgment for damages in the amount of $495,888.39 plus prejudgment and post-judgment interest in accordance with MTCC 1067’s By-Law Number 1 at Article XI.

[96] I order that the damages and interest referred to at para. 95 above are secured by the Condominium Lien.

[97] I order that MTCC 1067 have vacant possession of BSA’s Units.

Costs

[98] I order that all costs incurred by MTCC 1067 in this action be added/secured under the Condominium Lien.

[99] I encourage the parties to agree on costs. If they cannot agree, I will make a ruling as to the costs in this matter after the sale of the unit and on application by either party.

[100] Any party claiming costs shall file brief written submissions. These costs submissions shall not exceed five pages in length (not including any bill of costs or offers to settle). Any responding submissions shall be delivered within five days of receipt of the other party’s costs submissions. Any reply to submissions shall be delivered within three days of receipt of responding submissions and shall be no more than three pages long. Costs submissions shall be uploaded to CaseCenter and delivered to me by way of email to my Judicial Assistant.

Merritt
Released: February 3, 2025