Part 47 published on 01/09/14
Appeal dismissed. Mortgagee not entitled to summary judgment for foreclosure. Furthermore, mortgagee’s claim dismissed in its entirety.
The Bank of Montreal made application for summary judgment of its foreclosure action against a condominium owner. The condominium corporation had claimed amounts from the owner (namely, a fine for alleged excessive noise caused by the owner’s tenants, and a witness fee for the condominium manager’s teleconference attendance at a related hearing of the Residential Tenancy Dispute Officer). The mortgagee (the Bank) paid those amounts to the condominium corporation, and then sought to collect them from the owner under the terms of the mortgage. The Bank’s motion for summary judgment was dismissed (see Condo Cases Across Canada, Part 44, November 2013). The Bank appealed. The appeal was dismissed. Furthermore, the Appeal Court summarily dismissed the Bank’s claim. The Appeal Court held that the Bank was not entitled to add the amounts in question to the mortgage. The Court said:
Even if the Applicant can bring further evidence to validate the legitimacy of the Noise Fine, there is no way that the Bank can rely on the Noise Fine to constitute a property claim pursuant to the Mortgage…. The acceleration of assessment scheme contemplated by the Bylaws is unsupported at law and cannot be relied upon for establishing a property claim existed. If the Bank was able to prove the validity of the Noise Fine, the remedy for the Condominium Corporation would be to bring an action and seek judgment, not to cause an acceleration of assessments owed.
…
The Bank has had two opportunities to bring the required evidence before the Court, and has failed to establish that the Witness Fee was properly charged under section 44(a) of the Bylaws. The Bank has also failed to establish whether the charge falls within the scope of section 44(a) in terms of the purpose for which it was incurred or expended, or whether the charge falls within the scope of section 44(a) in terms of establishing the Condominium Corporation actually was charged for this expense. As such, I find the Bank has failed to satisfy its evidentiary burden on the balance of probabilities.