10/07/2019 – Jurisdiction Ontario
Part 67 published on 01/09/2019
Condominium corporation granted summary judgment in relation to lien enforcement. Owner’s counterclaim dismissed
The condominium corporation applied for summary judgment of its rights to enforce a lien registered against the owner’s unit, including an order for vacant possession of the unit.
In addition: The owner had asserted a counterclaim against the condominium corporation for damages allegedly suffered due to the acts or omissions of the condominium corporation’s superintendent in allegedly acting as the owner’s leasing agent.
The Court granted summary judgment of the corporation’s claims and also summarily dismissed the owner’s counterclaim. The Court said:
… I conclude that there is no issue requiring a trial on the question of whether the Plaintiff sent out the Notice of Lien and if the notice requirements under s. 85(4) of the Condominium Act were met. Consequently, the lien is valid. As this is the only issue raised by the Defendant in opposing the motion for summary judgment, and that the Defendant did not otherwise challenge the relief sought in the event that the lien is valid, I conclude that the Plaintiff is entitled to the relief sought in its Notice of Motion in respect of its claim.
…
The Defendant’s allegation that Ben Laurin (the superintendent) was the agent of the Plaintiff is thus rejected for the following reasons:
- There is no evidence to support a finding that both Ben Laurin and the Plaintiff consented to Ben Laurin acting as the agent of the Plaintiff. The Defendant’s allegation that everybody knew that the Laurins were helping owners rent their units is not sufficient to establish consent or even implied consent;
- There is no evidence that Ben Laurin’s duties as resident building manager included any element of acting as a leasing agent for condominium owners. There is also no evidence of implied authority being given by the Plaintiff to Ben Laurin in relation to leasing units other than the Defendant’s bald statements to that effect that are not corroborated in any way. The Plaintiff’s affidavit evidence specifically denies any such agency relationship;
- There is no evidence that the Plaintiff had any control or role to play in Ben Laurin’s actions in assisting owners to lease out their units;
- The evidence relied upon by the Defendant to support an agency relationship does not lead to a finding that any portion of Ben Laurin’s duties as resident building manager included leasing out units for owners. To the contrary, the evidence establishes that Ben Laurin’s arrangement with the Defendant was independent from his duties as resident building manager.