Monday, July 21, 2014

Adoption of the King case by the Honourable Madam Justice C. Dario; Accleration of condominium contributions not permitted

The Honourable Madam Justice C. Dario was given the opportunity to review the decision of the learned Master Laycock in Bank of Montreal v Rajakaruna, 2014 ABQB 415

Appeal from the Memorandum of Decision by
K.R. Laycock, Master in Chambers
(2013 ABQB 368)

Justice Dario had a very unusual set of facts which she concluded had been fundamentally properly dealt with by Master Laycock.  In doing so Justice Dario referred to and effectively affirmed the King decision which provides guidance to all lawyer, property managers and owners as to the priority system provided by the Condominium Property Act (Alberta).  Justice Dario also refused to allow acceleration of  condominium contributions based on failure to pay fines levied by a condominium corporation; lack of evidence was only one consideration in this regard.  Moreover, Justice Dario affirmed King directly on the point that fines are at best a contractual charge not in priority to lenders on title to individual units.

Justice Dario also made comments about the language in "breach of bylaws" provisions in the subject corporations bylaws.  Justice Dario observed that there must be a connection between the expenses incurred and an actual breach of bylaws.  A witness fee charged by a property manager in respect of the imposition of a fine without the Court affirming the fine was not sufficient in the Rajakaruna case.  Justice Dario also commented that imposing a fine for breach of a noise bylaw requires evidence to be affirmed by the Court.  In the Rajakaruna case the condominium corporation was not a party as the lender to the owner had paid the condominium corporation the amounts charged.

This case is a good caution to seek legal advice when dealing with recalcitrant owners; slow and steady is the best politic to follow when dealing with non-monetary breaches of condominium bylaws.