28/06/2017 – Jurisdiction Ontario
Part 59 published on 01/09/2017
Court determines date of default in relation to cost award under Section 134(5) of the Condominium Act
The lower Court held that the due date (for purposes of the lien period) in relation to costs under Section 134(5) of the Condominium Act is the date of the Court order, unless the condominium corporation extends the due date within the subsequent three-month lien period. [See Condo Cases Across Canada, Part 57, March 2017]
The condominium corporation appealed. The appeal was dismissed. The Court of Appeal said:
I agree that s. 134(5) is designed to permit a condominium corporation to forbear enforcement of its right to collect s. 134(5)common expenses by specifying a particular time for payment of those common expenses by the unit owner. But it does not follow that the condominium corporation is thereby relieved of its obligation to perfect its lien under s. 85(2) simply because the amount claimed under the lien is, as a matter of law, to be added to existing common expenses in accordance with s. 134(5). The default giving rise to the lien is the failure to pay a monetary award obtained in a compliance proceeding, together with any Additional Actual Costs incurred in obtaining the compliance order. In this case, the failure to pay relied upon by YCC to assert a lien is the default in payment under the Costs Order. Once that default occurred, s. 85(2) was engaged.
