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xcrpted :
" . . . [28] . . . . .I find that Mr. Rahman is in compliance with Article 4.2 of PSCC779’s Declaration in his use of the handicap, or accessible, parking spaces.
. . . [30] PSCC779 did not quantify the indemnification costs, charges or expenses in this hearing and made no claim for them in its submissions.
Rather, PSCC779 appeared to take the position that it did not need to claim these costs.
As I understand PSCC779’s position, the mere assertion of the costs of compliance, including legal costs, is sufficient to shift the onus to Mr. Rahman to demonstrate that the costs are not recoverable.
It is fortunate that this is not the law of Ontario.
Condominium corporations cannot simply assert a claim against an owner to succeed.
Mr. Rahman objects to the indemnification charges on the grounds that PSCC779’s case is without merit.
I find that Mr. Rahman has complied with Article 4.2 of the Declaration.
It follows that there can be no claim for indemnification for the costs of enforcing compliance with this Article of the Declaration that are recoverable against Mr. Rahman.
[31] Acting on the authority of subparagraph 1.44(1)2 of the Act, I will direct that PSCC779 cease its attempts to enforce its costs of compliance with Article 4.2 of its Declaration against Mr. Rahman.
As will be discussed below, this includes PSCC779’s attempts to enforce these claims against Mr. Rahman by registering a lien on his condominium unit and issuing a Notice of Sale.
. . . [41] . . . On December 31, 2020, a Notice of Sale was registered by PSCC779 against Mr. Rahman’s condominium for an amount of $13,839.68, which was expected to increase by February 1, 2021 to $15,162.51. PSCC779 advised that if payment in full was not received by February 19, 2021, PSCC779 would proceed to sell Mr. Rahman’s condominium.
. . . . .[44] The Amlani case deals with the interpretation of an indemnification clause and the operation of section 134 of the Act.
However, the case does not stand for the proposition that, through deft wording of an indemnification clause, a condominium corporation can deprive an owner of his or her day in court as provided for in subsection 134(5) of the Act.
In fact, the Court says, at paragraph 34,
It is one thing to allow the corporation to enforce, by way of lien, common expenses that are applicable to all unit holders and that a majority of unitholders have approved.
It is entirely another to allow a condominium corporation the unfettered, unilateral right to impose whatever costs it wants on a unitholder, refer to them as common expenses and thereby acquire the right to sell the unitholder’s apartment.
[45] Another way of considering the matter is to determine if PSCC779’s interpretation of its indemnification clauses is reasonable.
Here again, reference may be had to the Amlani case, where the Court wrote, at paragraph 46:
Finally, the interpretation the Corporation advances contravenes section 134 (5) of the Act because the costs it claims related to compliance and enforcement costs without being embodied in a court order. An interpretation that contravenes a statutory provision is, by definition, unreasonable
[46] From the outset PSCC779 took an aggressive posture in enforcing compliance despite the fact that it would have been clear to a reasonable person that Mr. Rahman had, at the minimum, a prima facie case for his use of the accessible parking space.
PSCC779’s position became increasingly aggressive. It added its legal costs in enforcing the Declaration, together with associated interest charges, to Mr. Rahman’s common expenses.
Despite Mr. Rahman, correctly, advising PSCC779 that it could not add these costs to his common expenses without a court order as required under subsection 134(5) of the Act, PSCC779 persisted.
It not only added those costs to Mr. Rahman’s common expenses but attempted to collect its legal costs and interest by way of lien and notice of sale.
It proceeded despite hearing from Mr. Rahman’s doctor that its treatment of him was causing him stress and anxiety. . . . " - unquote
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