CAIYUN YANG v. YANG LI, 2023 SKKB 278

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 278 Date: 2023 12 19 Docket: KBG-SA-01245-2023 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: CAIYUN YANG and YANG LI APPLICANTS - and - MYRIAD 419 CONDOMINIUM CORPORATION RESPONDENT Counsel: Ling Ma for the applicants Shawna L. Sparrow for the respondent ___________________________________________________________________________ FIAT ROTHERY J.

December 19, 2023 ___________________________________________________________________________ Introduction [ 1 ] Each of the applicants owns a unit in a condominium plan. The civic address of Caiyun Yang’s condo unit is #201 – 419 Willowgrove Square, Saskatoon, Saskatchewan. The civic address of Yang Li’s condo unit is #101 – 419 Willowgrove Square. The respondent is the applicable condominium corporation. [ 2 ] Both applicants state an accident happened in each unit in January 2019, when they were away from their respective units. The respondent entered each unit and conducted the necessary repairs.

When the respondent sent each applicant the

invoice for the costs of repair, the applicants disputed the cause of the accident and refused to pay the respondent. [ 3 ] The respondent registered liens in accordance with s. 63 of The Condominium Property Act, 1993 , SS 1993, c C-26.1 [ CPA ], on the basis that the damage to the units constituted “common expenses”. Section 65(6) of the CPA states: 65 …

(6) If the owner of a unit, or a person residing in the owner’s unit with the permission or knowledge of the owner, through

an act or omission causes damage to a unit, the amount determined pursuant to subsection (7) may be added to the common expenses payable by the owner of that unit. … [ 4 ] The lien registered against Caiyun Yang’s unit on September 3, 2020, was in the amount of $3,167.83. The lien registered against Yang Li’s unit on August 18, 2020, was in the amount of $3,699.72. [ 5 ] The applicants seek an order vacating these liens against their respective titles on the basis that the respondent is statute-barred from pursuing its remedy under the liens.

The applicants rely on The Limitations Act , SS 2004, c L-16.1, ss. 5 , 6 and 10 , which state: 5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered. 6

(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. … 10 Unless otherwise provided in this Act, in the case of a default in performing a demand obligation, the day on which

an act or omission on which a claim is based takes place is the day on which the default occurs. [ 6 ] The applicants submit that, because the respondent has taken no enforcement proceedings in enforcing the liens in the same manner as a mortgage within two years of registration of the liens, the effect of The Limitations Act renders them statute-barred. The applicants argue that the liens must now be vacated from their respective titles. [ 7 ]

Section 63 of the CPA states: 63

(1) A corporation may register an interest based on a lien against the title of a unit for the amount of a contribution to the common expenses fund or the reserve fund levied on the owner that has not been paid.

(2) On the registration of an interest pursuant to subsection (1): (

a) the corporation has a lien against the title for an amount that is equal to: (

i) the amount of the unpaid contribution; and (ii) any costs incurred in preparing and registering the interest and in preparing and registering a discharge of the interest; and (

b) the lien may be enforced in the same manner as a mortgage.

(3) A corporation that registers an interest pursuant to subsection (1) shall discharge the interest on payment of the amount of the lien.

(4) The corporation may require the owner to pay the costs incurred in preparing and registering the interest and in preparing and registering a discharge of the interest. [ 8 ] Counsel for the applicants submits that, because s. 63(2)(

b) of the CPA states that the lien may be enforced in the same manner as a mortgage, the respondent is required to commence a foreclosure action against the applicants within two years of registering the liens. Because the respondent did not do so, the liens are statute-barred and must be discharged from the titles.

Counsel relies on Rack Petroleum Ltd. v Gidluck , 2013 SKCA 104 , 423 Sask R 247 , and The Owners: Condominium Plan No. 9311533 v Shui Ming Tong Foundation , 2022 ABKB 826 [ Shui Ming ] , in support of the applicants’ position. [ 9 ] Certainly, if the respondent now commenced a foreclosure action based on the liens registered in 2020, it may well be met with the defence that the actions are statute-barred. However, the respondent has not done so. The issue is whether the

respondent is required under s. 63 of the CPA to commence a foreclosure action or whether it has other remedies available. [10] This issue was addressed in Canterbury Lofts Condominium Corporation v Dureau, 2016 SKQB 410 at paras19-20, [Canterbury], where Kalmakoff J. (as he then was) stated: 19 Notably, ss. 63(2)(

b) permits a corporation to enforce a lien registered under this provision "in the same manner as a mortgage". Inmy view, the plain and ordinary meaning of that wording demonstrates a clear legislative intent to give condominium corporations theoption of bringing a foreclosure action against a unit holder for non-payment of common fund and reserve fund fees. As Smith J. noted inCondominium Plan No. 91R052147 v Page Credit Union, 2004 SKQB 73, at para 3, 245 Sask R 252, this

section gives thecondominium corporation "the benefit and status of a mortgagee respecting the recovery of funds owing on the common expense fundand reserve fund." 20 While the primary manner of enforcement of a mortgage may be an action for foreclosure, a condominium corporation does not haveto initiate foreclosure proceedings to recover unpaid common and reserve fund fees; there are other options. For instance, the corporationcan register a lien against the property and, presumably, collect on the lien when the unit holder sells the unit. The corporation may alsosue the unit owner for the amount of the outstanding debt. However, if the condominium corporation chooses, ss. 63(2)(

b) permits thecorporation to enforce the lien "in the same manner as a mortgage", that is, bring an action for foreclosure. [11] While Shui Ming addressed Alberta law and the effect of limitation periods on caveats filed pursuant to itscondominium property legislation, the case is helpful in further supporting the premise outlined in Canterbury. In describing the effect oflimitations of action legislation on liens, the applications judge in Shui Ming at paras 25-26 stated: 25 This conclusion is supported by the following passage from Hepburn, Re (1884), 14 Q.B.D. 394 (Eng.

Q.B.), as follows at page 399: It is said that the statute bars the remedy but not the right, and consequently that the executors still remain indebted to the joint creditorsalthough the latter cannot enforce their right by action. This, although not an uncommon, is in my judgment an incorrect way of statingthe effect of the Statute of Limitations. There is in law no right without a remedy; and if all remedies for enforcing a right are gone, theright has in point of law ceased to exist. In the case of a debt the ordinary and universal remedy is by action against the debtor.

Theremay, however, and sometimes does exist another remedy, not by action against the debtor, but arising out of the possession of property ofthe debtor which by law or contract may be detained by the creditor until the debt is paid. This latter remedy may exist, although theremedy by action is barred; and in that case the debt continues to exist so far as is necessary for the enforcement of this right of lien butnot for enforcing the remedy by action.

When the debt is barred by the statute and the creditor has no lien, the debt is gone for allpurposes. (emphasis added) 26 The above passage is cited with approval in Spearing v. Jackow, (SK CA), [1948] 2 W.W.R. 848, 1948CarswellSask 50 (Sask. C.A.), in Commercial Credit Corp. v. Pasco (1963), (SK KB), 44 W.W.R. 28, 1963CarswellSask 64 (Sask. Q.B.). and in David M. Gottlieb Professional Corp. v. Nahal, 2014 ABQB 271, 2014 CarswellAlta 723. [12] This principle is good law in Saskatchewan.

The liens registered against the applicants’ units remainenforceable. [13] It is appropriate that the legislation grants a condominium corporation the option to merely rely on its lienregistered in accordance with s. 63 of the CPA rather than being required to commence a foreclosure action within two years. Foreclosureis an expensive and time-consuming procedure. The condominium corporation must begin with an application pursuant to The LandContracts (Actions) Act, 2018, SS 2018, c L-3.001, to seek leave to commence a foreclosure action against an owner of residentialproperty.

See: Canterbury at paras 22-44. [14] It is understandable in this situation that the respondent merely relies on s. 63 of the CPA to retain the liens onthe applicants’ titles. The amount of each lien is only a few thousand dollars. This is a far more economical solution for thecondominium corporation than enforcing its lien by way of a foreclosure action. [15] In conclusion, this application to vacate the liens against the applicants’ respective units is dismissed. Therespondent is entitled to costs of this originating application in accordance with the Tariff of Costs,

Schedule 1 “B”, in column 1, that is,$1,000. Each applicant is assessed costs of $500. J. A.R. ROTHERY