Swan v. Durham Condominium Corporation No. 45
The appeal is dismissed because the appellant's indemnification claim is barred by res judicata based on the prior finding of bad faith; the motion judge correctly found the lien valid and declined to vacate it; only the amount requires recalculation with discharge of the original lien and registration of a revised...
Source-derived case information.
- Citation
- 2019 ONCA 1016
- Parties
- Appellant: Leslie Arthur Swan; Respondent: Durham Condominium Corporation No. 45
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 23 December 2019
- Procedural Posture
- Civil Appeal / Court of Appeal Judgment
- Outcome
- Appeal dismissed
- Legal Topics
- Res Judicata, Indemnification, Lien, Abuse of Process, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leslie Arthur Swan
Appellant
Durham Condominium Corporation No. 45
Respondent
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Legal Issues
- 1 Whether the appellant's indemnification claim is barred by res judicata and constitutes a collateral attack on an earlier decision
- 2 Whether the condominium corporation's lien is valid and should be vacated
- 3 Whether recalculation and re-registration of the lien affects its validity
Ratio Decidendi
The appeal is dismissed because the appellant's indemnification claim is barred by res judicata based on the prior finding of bad faith; the motion judge correctly found the lien valid and declined to vacate it; only the amount requires recalculation with discharge of the original lien and registration of a revised lien, and the motion judge retained jurisdiction to implement that recalculation.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Recalculate the amount the respondent may claim and provide an updated statement to the appellant
Full Case Text
Judgment text and source record
1 paragraphs
Swan v. Durham Condominium Corporation No. 45 Collection Decisions of the Court of Appeal Date 2019-12-23 Neutral citation 2019 ONCA 1016 Docket numbers C66287 Judges Huscroft, Grant; Trotter, Gary T.; Zarnett, Benjamin Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Swan v. Durham Condominium Corporation No. 45, 2019 ONCA 1016 DATE: 20191220 DOCKET: C66287 Huscroft, Trotter and Zarnett JJ.A. BETWEEN Leslie Arthur Swan Plaintiff (Appellant) and Durham Condominium Corporation No. 45 Defendant (Respondent) Howard Wright, for the appellant Sheldon Inkol, for the respondent Heard: December 20, 2019 On appeal from the judgment of Justice Sandra Nishikawa of the Superior Court of Justice, dated March 8, 2019. APPEAL BOOK ENDORSEMENT [1] We see no error in the motion judge’s conclusion that Mr. Swan’s claim for indemnification is barred on the basis that it is res judicata. Sosna J. determined that Mr. Swan was not entitled to the indemnity because he acted in bad faith in the exercise of his duties as director. His motion for leave to appeal that decision was dismissed. The motion judge properly concluded that his claim for indemnification is a collateral attack on the October 2015 decision and an abuse of process. There is no merit to the argument that his clear finding of bad faith is somehow undermined by the terms of the order the parties took out. [2] Nor did the motion judge err in concluding that the lien should not be vacated. We see no error in the motion judge’s analysis, particularly at paras. 27-35 of her reasons, where she determined that the lien was valid. [3] There was no evidentiary basis before the motion judge that would have justified vacating the lien. The real issue in this case concerns the amount of the lien. [4] The order contemplates recalculation of the amount the respondent may claim in accordance with the reasons, provision of an updated statement to the appellant, discharge of the original lien amount and registration of a lien for the revised amount. In other words, the original lien is to be revised in accordance with the order, and the motion judge retained jurisdiction to address any matters arising in this regard. This is not a situation in which a new lien must be registered in accordance with the timeliness requirements of the Act. In the circumstances, the discharge and re-registration does not affect the underlying validity of the lien for the revised amount. [5] The appeal is dismissed. [6] The respondent is entitled to costs in the agreed amount of $7,000, inclusive of taxes and disbursements.