In the recent decision Washington v. York Condominium Corporation No. 441, the Divisional Court confirmed that when a unit owner challenges a lien, it is the unit owner’s obligation to establish, on a balance of probabilities, that he or she was not responsible for the alleged damage. In this case, the appellate judge set aside a lower court decision ordering a condominium corporation to return a chargeback to a unit owner.
This case concerned a plumbing blockage that affected the plaintiff owner’s unit, along with three other units, in the condominium. The owner (and plaintiff) used his unit to prepare food for Caribbean cuisine dishes for restaurants. Apart from the plaintiff, no other owners involved used their units in a way that produced food grease.
After discovering the blockage, the plaintiff contacted a plumber to assess the situation. The same plumber was then hired by the property manager to clear the blockage. The plumber’s notes revealed the caused of the blockage was from grease or hardened grease. In addition, the plumber filmed the actual clearing of the blockage in which he states that the blockage is “grease and chicken grease”.
Based on the above information, the Board of Directors concluded that the plaintiff’s unit was the cause of the blockage, and demanded payment for costs incurred in the amount of $17,336.84. Later, the condominium registered a lien against the plaintiff’s unit. The plaintiff paid the above-noted amount and commenced an action claiming his unit was not the cause of the plumbing blockage.
The trial judge agreed with the plaintiff and rendered judgment in his favour. The trial judge reasoned that, based on the totality of the evidence, the condominium failed to definitively prove that the source of the blockage was from the plaintiff’s unit.
The Divisional Court disagreed. It confirmed that it was the plaintiff’s obligation to establish, more likely than not, that he was not the source of the plumbing blockage. The Divisional Court also stated that the trial judge failed to consider key evidence: the audio of the above-noted video; and the reasoning of the Board of Directors to conclude the plaintiff was the source of the blockage. The trial judge had discounted the reasoning of the Board of Directors on the basis that the members were “irresponsible” and “rather flippant” in their decision because their discussion of the subject was “laden with expletives”. In other words, the members were excessively cursing.
The Divisional Court disagreed with the trial judge’s consideration of the evidence because it did not accord with the required degree of deference to which a Board of Directors of a condominium corporation is entitled, as outlined by the Ontario Court of Appeal. Following the argument of our very own Christy Allen, the Ontario Court of Appeal in 3716724 Canada Inc. v. Carleton Condominium Corp. No 375 confirmed that courts should be careful not to usurp the functions of the boards of condominium corporations, especially when the Board has acted reasonably, honestly, and in good faith.
Overall, this decision serves as a reminder to condominium corporations that if an owner challenges a lien, it is the owner’s obligation – and not the condominium’s obligation – to establish that he or she was more likely than not, not the source of the alleged damage. While the owner bears this onus of proof, the condominium is always open to lead evidence that will result in the plaintiff failing to establish his or her case.