



COURT OF APPEAL FOR ONTARIO

CITATION: York
    Condominium Corporation No. 82 v. Bujold, 2013 ONCA 209

DATE: 20130403

DOCKET: C55735

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

York Condominium Corporation No. 82

Plaintiff (Appellant)

and

Marie Lillian Bujold

Defendant (Respondent)

Derrick M. Fulton, for the appellant

Sidney Klotz, for the respondent

Heard: February 22, 2013

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated June 15, 2012.

MacPherson J.A.
:

A.

INTRODUCTION

[1]

The appellant, York Condominium Corporation No. 82, appeals from the judgment
    of Perell J. of the Superior Court of Justice dismissing its motion for summary
    judgment. The motion judge held that, although the appellant had registered a
    lien against the respondents condominium unit, the lien had expired because of
    late registration.

[2]

The appeal raises issues relating to the nature of liens, notice, and
    registration under s. 85 of the
Condominium Act, 1998
, S.O. 1998, c.
    19 (the 
Act
).

B.

facts

(1)

The parties and events

[3]

The respondent, Marie Bujold owns a condominium unit in the appellant
    condominium corporation. On June 22, 2007, the corporation served Ms. Bujold
    with a Notice of Lien because of her failure to pay common area expenses. The
    Notice of Lien stated that the amount of arrears owing was $2544.29.

[4]

The corporation registered a Certificate of Lien against Ms. Bujolds
    unit on September 25, 2007. The lien was registered in the amount of $2254.34.

[5]

Both of these amounts included the total amount of arrears owed by Ms. Bujold
    that had accumulated since December 31, 2006.

[6]

In early 2009, the corporation served a Notice of Sale and commenced a
    claim seeking possession of the unit. In her defence, Ms. Bujold alleged that a
    charge of $704.24 that was added on December 31, 2006 was a duplicate from
    2004.

[7]

The corporation moved for summary judgment and sought an order for
    possession of the property and an order that it was at liberty to obtain a writ
    of possession regarding the property.

(2)

The motion judges decision

[8]

The motion judge dismissed the corporations motion for summary
    judgment. He found as a fact that there were arrears when the Notice of Lien was
    served on Ms. Bujold on June 22, 2007. However, he found that, pursuant to s.
    85 of the
Act
, while the lien would have been enforceable if it had
    been registered within three months, the registration date of September 25,
    2007 was three days too late. Hence, the lien had expired.

[9]

The appellant appeals this decision.

C.

ISSUES

[10]

The
    issues on the appeal are:

(1)

Did the motion judge err by
    determining that the lien had expired?

(2)

If the answer to (1) is Yes, did
    the appellant comply with the notice requirement of the
Act
?

D.

ANALYSIS

[11]

Both
    issues require interpretation of s. 85 of the
Act
, the relevant parts
    of which are:

85
(1)  If an owner
    defaults in the obligation to contribute to the common expenses, the
    corporation has a lien against the owners 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.

(2)
The
    lien expires three months after the default that gave rise to the lien occurred
    unless the corporation within that time registers a certificate of lien in a
    form prescribed by the Minister.

(3)
A
    certificate of lien when registered covers,

(a) the amount owing under all of the
    corporations liens against the owners unit that have not expired at the time
    of registration of the certificate;

(b) the amount by which the owner defaults in the
    obligation to contribute to the common expenses after the registration of the
    certificate;

. . .

(4)
At
    least 10 days before the day a certificate of lien is registered, the
    corporation shall give written notice of the lien to the owner whose unit is
    affected by the lien.

(1)
The separate lien issue

[12]

I
    begin by noting that the motion judge made an error on which nothing turns for
    the purposes of this appeal. The motion judge held that the lien arose on June
    22, 2007, the date on which the corporation served its Notice of Lien on Ms.
    Bujold. However, the parties agree that, pursuant to s. 85(1) of the
Act
,
    the lien arose on the date of default giving rise to the lien. The default in
    this case was June 1, not June 22. Nothing turns on this, as both of these
    dates are outside the three month registration period prescribed by s. 85(2).

[13]

The
    appellant submits that the late registration of the lien did not cause the
    corporation to lose all of its lien rights. The appellant contends that a new
    lien arises upon each default which, in this case, was the first day of each
    month when common area expenses became due. Each lien expires three months
    after the default unless the corporation registers a certificate in that time. The
    effect of the corporation having registered its lien on September 25, 2007 is
    that it lost its liens arising more than three months earlier. However, the
    registration on September 25 meant that the liens that arose after June 25 were
    valid, namely, the liens relating to defaults on July 1, August 1 and September
    1.

[14]

I
    agree with this interpretation. The use of the plural liens in s. 85(3)(a),
    which provides that registration of a lien essentially consolidates all of the
    corporations liens against the unit that have not expired, indicates that a
    corporation can have multiple liens against the same unit. The wording of s.
    85(1) provides that an unregistered lien arises upon default automatically. In
    my view, the proper reading of s. 85 is that a corporation has a lien that
    arises upon each default. This accords with the wording of s. 85(1) and,
    otherwise, there is no explanation for the use of the plural in s. 85(3)(a). Subsection
    85(2) provides that the lien expires three months after the default that gave
    rise to it unless it is registered. It follows that registration consolidates
    only those liens that arose in the three months before registration. Delayed
    registration does not invalidate all liens, just those that arose from defaults
    that occurred more than three months before the registration.

[15]

I
    make a final observation on this issue. Although this issue does not appear to
    have been considered in prior cases, the condominium industry seems to be
    operating in accordance with the above interpretation. Audrey Loeb, in her text
The Condominium Act: A Users Manual
, 3rd ed. (Toronto: Carswell,
    2009), states at p. 255: The certificate of lien covers liens arising up to
    three months prior to its registration as well as defaults occurring after
    registration. Similarly, J. Robert Gardiner, in his text
The Condominium
    Act, 1998: A Practical Guide
(Aurora: Canada Law Book, 2001), states at p.
    211: The new wording makes it clear that a lien may be registered at any time
    and will secure payment of unpaid amounts that fell due within three months
    prior to the date of registration of a lien.

[16]

For
    these reasons, I conclude that the motion judge erred by determining that the
    lien had expired. It had expired for all the liens that might have arisen
    before June 25, 2007. It was potentially valid for any liens that arose after
    that date.

(2)
The notice issue

[17]

In
    light of his conclusion on the first issue, it was not necessary for the motion
    judge to consider the validity of the notice given in the present case.

[18]

Accepting
    the appellants submission that a separate lien arises on every default, the
    question becomes whether the notice given on June 22, 2007 was sufficient to
    cover any subsequent liens that arose between that date and registration on
    September 25. The answer to this question requires an interpretation of s.
    85(4) of the
Act
which, for ease of reference, I set out again:

At least 10 days before the day a certificate is
    registered, the corporation shall give written notice of the lien to the owner
    whose unit is affected by the lien.

[19]

The
    appellant points out that the lien is a creature of statute and submits that
    the statute does not require separate notice every time there is a default. It
    submits that the purpose of the notice is to advise the owner of the fact that
    he or she is in arrears and of the corporations intention to register a lien;
    all that is required is that notice be given at least ten days before the Certificate
    of Lien is registered, which it was in this case.

[20]

I
    do not accept this submission. First, it is conceptually inconsistent with the
    core of the appellants submission on the first issue, namely, that each default
    gives rise to a new lien. Second, s. 85(4) requires that the corporation give
    written notice of the lien; in my view, this suggests that notice needs to be
    given of each lien arising from each default. Third, in this case the lien for
    which the corporation had given notice had already expired, as discussed above.
    It strikes me as anomalous that notice of an expired lien could cover
    subsequent defaults. Fourth, I do not think that requiring condominium
    corporations to provide notice of each default before registering the lien
    creates a hardship. Once registration is achieved in a timely fashion, s. 85(3)(b)
    makes it clear that all future defaults are covered by the Certificate of Lien;
    notice will no longer be required.

[21]

For
    these reasons, I conclude that the appellant did not provide adequate notice of
    its lien. The appeal must be dismissed on this basis.

E.

DISPOSITION

[22]

I
    would dismiss the appeal. The respondent is entitled to her costs of the appeal,
    which I would fix at $6000 inclusive of disbursements and HST.

Released: April 3, 2013 (M.R.)

J.C. MacPherson J.A.

I agree. M. Rosenberg J.A.

I agree. H.S. LaForme J.A.


