15/12/2021 – Jurisdiction Ontario
Part 77 published on 01/03/2022
Mandatory mediation applies to this particular dispute in relation to a lien
The condominium corporation had incurred costs for lawyers’ letters sent to the owner. The letters had demanded that the owner cease and desist from certain alleged violations of the corporation’s Rules. The condominium corporation ultimately liened the owner’s unit for recovery of the related costs (along with significant additional collection costs). The condominium corporation then applied to Court, seeking an order for vacant possession of the unit (under the lien), in order to allow for a sale of the unit. The Court dismissed the Application and directed that the matter be referred to mandatory mediation and arbitration under Section 132 of the Condominium Act.
The Court said:
The plaintiff asks me to find that the costs of sending the lawyers letters were “damages” arising from alleged breaches of the corporation’s rules. I am not remotely persuaded that this is so. It is clear to me that whatever their intent, the lawyer’s letters plainly inflamed the situation rather than helping to resolve it. The actual existence of established breaches of the rules and the causal link between any established breach and the invoice in question both remain to be proved.
…
The Legislature plainly intended mediation to be the FIRST and not the last choice to tackle and resolve disputes that arise in the communal living context of a condominium. Prudence ought to have dictated that a plaintiff who is experienced in the field and knows full well what the requirements of mediation are ought to have offered this alternative to a lay owner/occupant BEFORE turning on the rapidly-spinning legal fee meter.
…
It shall be for a mediator and/or arbitrator to determine what if any expenses can reasonably be added to the common charges payable by the defendant. Any amount remaining unpaid at the end of that process – should there be such an amount – can of course be made the object of fresh enforcement proceedings if necessary.