The decision of CCC 476 v Wong, 2019 ONSC 4207 released this past summer has provided some clarity around an issue that most people may not have realized was even an issue… counting to 10. Stay with me here.
As many of our readers will know, one of the most effective tools that condo corporations have at their disposal to collect common expenses are liens. Due to the power of these liens, the Legislature has mandated particular procedural requirements that must be satisfied, and rightly so. One of these requirements is that the condominium send a Notice of Lien to the owner at least 10 days before registration. This provision of the Condominium Act is reproduced below:
85(4) At least 10 days before the day a certificate of lien is registered, the corporation shall give written notice of the lien to the owner whose unit is affected by the lien.
Seems simple enough right? But how to we calculate 1o days? Does it count the day the notice was sent? What about the 10th day? Can the lien be registered then?
In other words, if an owner receives a notice of lien on October 1st, can the Corporation register the lien on October 10th?
The short answer is no, the Corporation would have to wait until the 11th, and here is why:
As described in Wong, when in doubt when it comes to date-counting, a good place to start is the Legislation Act. Section 89(3) of the Legislation Act states that a reference to a number of days between two events excludes the first event, but includes the second event. In other words, when it comes to a notice of lien, we do not count the date that it was sent, but we do count the 10th day after it was sent.
In some circumstances however, the Legislation Act will not apply. Specifically, if another Act excludes it, or applying it would yield a result that was inconsistent with the context. The Court in Wong did not find that either of these exceptions applied.
It is also important to keep in mind that the Legislation Act is to be interpreted as being remedial, and is to be given a fair, large and liberal interpretation. On this, the condo in Wong pointed out that the part of the Condominium Act regarding common expenses was specifically designed to safeguard the financial viability of a condo corporation in a manner that fairly balances the rights of the various stakeholders.
In that case, the owner was provided with a notice of lien that was mailed to the owner on January 21, 2019 (the first event). The lien was registered on January 31 (the second event). Excluding the first event, but including the second event, this amounted to 10 days, and the notice requirements were met.
Owners and condos should both be aware of this method of counting when it comes to notices of lien, or any other required notice under the Condominium Act.
For all of your date-counting and other condo related needs, be sure to consult a lawyer so as to make sure these important steps are not missed.
Credit: condoadvisor.caGraeme Macpherson
Tags: Scarborough, Ontario, Leecentrenews, Toronto, law, condo, condominium, notice of lien, lien, timing, date counting