



COURT OF APPEAL FOR ONTARIO

CITATION: Swan v. Durham
    Condominium Corporation No. 45, 2019 ONCA 1016

DATE: 20191220

DOCKET: C66287

Huscroft, Trotter and Zarnett
    JJ.A.

BETWEEN

Leslie Arthur Swan

Plaintiff (Appellant)

and

Durham Condominium Corporation
    No. 45

Defendant (Respondent)

Howard Wright, for the appellant

Sheldon Inkol, for the respondent

Heard: December 20, 2019

On appeal from the judgment of Justice Sandra
    Nishikawa of the Superior Court of Justice, dated March 8, 2019.

APPEAL BOOK ENDORSEMENT


[1]

We see no error in the motion judges conclusion that Mr. Swans claim
    for indemnification is barred on the basis that it is
res
    judicata
. Sosna J. determined that Mr. Swan was not entitled to the
    indemnity because he acted in bad faith in the exercise of his duties as director.
    His motion for leave to appeal that decision was dismissed. The motion judge
    properly concluded that his claim for indemnification is a collateral attack on
    the October 2015 decision and an abuse of process. There is no merit to the
    argument that his clear finding of bad faith is somehow undermined by the terms
    of the order the parties took out.

[2]

Nor did the motion judge err in concluding that the lien should not be
    vacated. We see no error in the motion judges analysis, particularly at paras.
    27-35 of her reasons, where she determined that the lien was valid.

[3]

There was no evidentiary basis before the motion judge that would have
    justified vacating the lien. The real issue in this case concerns the amount of
    the lien.

[4]

The order contemplates recalculation of the amount the respondent may
    claim in accordance with the reasons, provision of an updated statement to the
    appellant, discharge of the original lien amount and registration of a lien for
    the revised amount. In other words, the original lien is to be revised in
    accordance with the order, and the motion judge retained jurisdiction to
    address any matters arising in this regard. This is not a situation in which a
    new lien must be registered in accordance with the timeliness requirements of
    the Act. In the circumstances, the discharge and re-registration does not
    affect the underlying validity of the lien for the revised amount.

[5]

The appeal is dismissed.

[6]

The respondent is entitled to costs in the
    agreed amount of $7,000, inclusive of taxes and disbursements.


