04/04/2022 – Jurisdiction Manitoba
Part 78 published on 01/06/2022
Appeal dismissed. Court of Appeal upholds lower Court decision discharging final mortgage against parking unit
Previous Court decisions had confirmed that the condominium corporation was the beneficial owner of a particular parking unit. [See Condo Cases Across Canada, Part 65, March 2019 and Part 70, June 2020.]
The Courts were also required to address the issue of certain mortgages against the parking unit. The Court of Appeal previously ordered that two of three mortgages (against the parking unit) be discharged from title. However, in relation to the third mortgage, the Court of Appeal ordered that the matter be referred back to the Application Judge to determine whether or not that mortgage should also be removed from title.
On that further Application, the Court determined that the third mortgage should also be removed from title to the parking unit. [See Condo Cases Across Canada, Part 75, September 2021.]
The mortgagee of that third mortgage, Frohlinger, appealed. The appeal was dismissed.
The Court of Appeal again confirmed that the condominium corporation was entitled to the particular parking unit because there was a common intention, between the condominium developer and the purchasers of the units, that the parking unit would be part of the condominium’s common elements. The Court of Appeal again referred to fiduciary duties of condominium developers, confirmed in previous precedent caselaw.
In terms of the particular mortgage, the Court of Appeal noted that the mortgagee, Frohlinger, was in “non-arm’s length to the developer”, and the Court of Appeal found no error in the lower Court’s ruling that the mortgage should be discharged.Winnipeg Condominium Corporation No. 479 v Frohlinger