Superior Court of Justice’s determination on the computation of time when giving notice of lien upheld by the Court of Appeal
When an owner goes into arrears, condominium corporations can secure their collection rights with the registration of a certificate of lien. However, before doing so, the condominium corporation must provide the owner with notice, in a prescribed form. The Condominium Act requires that the notice must be given “at least ten days before” the registration of the certificate of lien.
The issue of timing of a notice of lien was challenged in Court by an owner. In this case, the Unit Owner alleged that the lien was invalid on the grounds that the required 10 days’ notice was not provided in accordance with the Act.
The Notice of Lien was sent on January 21.
The Certificate of Lien was registered on January 31.
The Unit Owner alleged that ten “clear days” were required and, as a result, the certificate of lien could not have been registered until February 1st at the earliest. Furthermore, the Unit Owner argued that service by mail was only effective 5 days after mailing.
[Note: The Corporation’s by-laws confirmed that notice was deemed to be effective on the day that the document was put in the mail. Not all By-laws have this provision.]
The Superior Court of Justice, on a motion for summary judgment, supported the condominium corporation’s position that the lien was validly registered. In particular, the Court considered the computation of time provisions found in the Legislation Act, 2006 in coming to the decision that it was appropriate to exclude January 21 and include January 31 in the calculation of the lien notice time period. The Court therefore held that proper notice was provided at least 10 days before the certificate of lien was registered, as required by the Condominium Act.
Furthermore, the Court relied on the Corporation’s By-laws to confirm that notice was given on the day that the notice was put in the mail (and so that the 10 day notice period began to run, in this case, on the date that the notice was placed in the mail).
The Unit Owner appealed. The Ontario Court of Appeal dismissed the appeal and confirmed that the Superior Court’s interpretation of the Legislation Act, 2006 was correct. As such it is clear that when determining whether proper notice has been given under Section 85 of the Condominium Act, 1998, the date on which the notice is deemed to be given is excluded and the date on which the lien is registered is included when counting the 10 day notice period..
It is also very important to be aware of the wording in your by-laws in order to confirm the date that notice is deemed to be effective, as this will have a bearing on the computation of the 10 day notice period. This said, whenever possible, providing a “little extra notice” is always a good practice – just to avoid any arguments about the adequacy of notice! Our firm represented the Condominium Corporation in this matter. [For a copy of the Superior Court decision, click here. For a copy of the Court of Appeal’s Decision, click here.]