( addendum Aug 28/17 : Lien challengers - 'once notified' - face a VERY tight timeframe under incoming Condo Act amendments. Further, a Divisional Court decision - Washington v YCC # 441 2017 ONSC 4956 issued Aug 21/17
http://canlii.ca/t/h5jvc - may have reversed a burden of proof in some disputes significantly against the challenger. Challengers need to obtain competent, insured legal advice from Law Society registrants .
SEE : Will LIEN CHALLENGE CHANGES disadvantage owners targetted by condo liens ? 2017/03/18 15:31
http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18693&catid=2 )
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4 years after an Ontario condo superlien gets slam-dunk collection from the lender on title, a lien defier owner of the accused "source unit" (in a 41 storey TO highrise) has persuaded Small Claims Court to order the condo corporation to disgorge those payments it obtained from lender ( and such rolled over into the loan ).
( This decision was noted earlier by the anonymous folks at CondoMadness & is now slowly appearing in legal article(s) as below.
Further, in the understandable scarcity of any term for a process that is likeliest ABSOLUTE ANATHEMA to condo/HOA managements, in this topic it's going to be referred to as a 'disgorgement judicial order'. Hopefully someone can help with a better term. )
The $2,500 liened collection has thus rebounded into perhaps a tenfold burden - now to be imposed on ALL owners.
With a paralegal during two day Small Claims trial, the disputant owner persuades that his unit was either wrongly - or at least unsupportedly - liened as an alleged ‘upperfloor shower leak source unit’.
After 4 years & more than four court appearances with legal counsel to be paid, the condo corporation will suck up fully refunding what is HELD to be a ‘failed to prove’ plumbing leak rectification LIEN plus its own legal costs & the original leak responses in 2011. Small Claims also here awards challenger Rao $5960 damages plus $ 1800 costs & disbursements.
Factuals : Remedials were triggered by the lower unit's Aug 2011 leak complaint. Upperfloor owner Rao permitted all access and objected that his then 4.5 year old unit (immediately above ) was NOT the source. 'Experted' in Small Claims by a mere handyman without plumber certification, Rao points to other units or common element leaks as credible sources in the recent building.
( Water doesn't run uphill. But it could be sourced from common element pipes or maybe even laterally from units other than the unit immediately immediately above. It may instead be possible that improper venting / missing vapour barriers within the victim bathroom itself might have generated the lower shower's ceiling damage due to its own moist air seeping into areas of condensation during the August damage period.
Whatever, the Deputy Judge was unpersuaded by the condo corporation's evidence )
Who proves what ?
Management respectfully should notice that the Deputy Judge here states he looked for ``unambiguous & straightforward`` internal confirmation placing the leak source within the plaintiff's unit. What he found in the plumbers/restorers 'field notes', he apparently doubted (para 28).
Was this consistent with the usual burden of proof being usually born by a plaintiff ?
The superlien was NOT for unpaid fees but for a mere UNPROVEN civil claim. It was extracted from a third party lender whose legal position could accelerate into default and loss of an owner's home over a mere civil claim !
Given that the LIEN remedy had successfully extracted quick lender payment despite the vigorous opposition of Mr Rao - and maybe looked shaky
- it appears the Deputy Judge somewhat reverses a plaintiff`s usual burden of proof : flipped this onto the defendant condo corporation :
( xcerpted : `` . . .[28] Since the defendant took the position that the source of the leak was 602, it was incumbent upon the defendant to prove in an unambiguous and straightforward fashion the source of the leak and how it was stopped, something which the defendant failed to do. . . .``)
Another biggy :
As later pointed out by lawyer Denise Lash's review, management should check to see EXACTLY what the Declaration's wording empowers.
( Eg : Here the superlien was applied not merely for leak detection & plugging but for physical restoration - ie 'repair' - to BOTH units despite a section 91 alteration.
( Otherwise - given default in Ontario's condo act - what is the authority to investigate unit damage / repair / collect repair costs ? Wider, what is otherwise the legality to intervene in UNIT v UNIT damage claims where some U.S. condo/HOA corporations have zero obligation to intervene ? Some states subordinate liens below First Mortgages; lenders can merrily ignore such lien albeit at own peril. Some leak victims have to sue the owners of a leak source. God knows how they can get private access to the alleged leak source unit without consent. )
The Declaration wording here - as quoted in the judgment - however suggests that neither the Deputy Judge nor Rao's paralegal had to pursue that enquiry. This ain't some U.S. states.
But maybe lien challengers & condo/HOA management should think about its possibilities.
The article : Condo Water Leaks by lawyer D Lash Sep 20/16
http://www.lashcondolaw.com/condo-water-leaks/ Rao v T.S.C.C. # 1764 2016 canlii 44179 (ON SCSM) issued April 7/16
http://canlii.ca/t/gsjbz