THE OWNERS: CONDOMINIUM CORPORATION NO: 101108111 PLAINTIFF/APPLICANT - v. -, 2023 SKKB 112

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 112 Date: 2023 06 05 Docket: KBG-SA-01087-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: THE OWNERS: CONDOMINIUM CORPORATION NO: 101108111 PLAINTIFF/APPLICANT - and - LEONARD PAUL SISETSKI DEFENDANT/RESPONDENT CORRECTED FIAT: The text of the original fiat has been changed per the corrigendum released June 28, 2023. (A copy of the corrigendum is appended to this corrected fiat). Appearances: Taylor L. Wilcox for the plaintiff David Eckert (Power of Attorney for Mr.

Sisetski) for the defendant ___________________________________________________________________________ FIAT CURRIE J. June 5, 2023 ___________________________________________________________________________ Introduction [ 1 ] In this foreclosure action the plaintiff, The Owners: Condominium Corporation No. 101108111, sues Leonard

Paul Sisetski in relation to arrears of condominium fees. The plaintiff claims foreclosure or sale of Mr. Sisetski’s condominium unit in payment of the arrears. [ 2 ] Mr. Sisetski has filed a statement of defence. The defence refers to: (

a) expenses that Mr. Sisetski has devoted to his condominium unit; (

b) historic increases in the amounts of the condominium fees; (

c) sewer backups and cockroach infestations; (

d) the exterior of the property not being properly maintained and repaired; (

e) the reversion of the property from condominium units to apartments, with an associated loss of value; (

f) Mr. Sisetski ceasing to pay his condominium fees in 2018 because of his concerns with the above matters; and (

g) Mr. Sisetski’s request for relief by way of the court permitting the property manager to sell Mr. Sisetski’s condominium unit, providing the proceeds to Mr. Sisetski. [ 3 ] Here the plaintiff applies under Rule 7-9 of The Queen’s Bench Rules for an order striking out the statement of defence, mainly on the basis that the statement of defence fails to disclose a reasonable defence. Rule 7-9 [ 4 ] Rule 7-9 provides: 7-9

(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; (

b) is scandalous, frivolous or vexatious; (

c) is immaterial, redundant or unnecessarily lengthy; (

d) may prejudice or delay the fair trial or hearing of the proceeding; or (

e) is otherwise an abuse of process of the Court.

(3) No evidence is admissible on an application pursuant to clause (2)(a). No defence [ 5 ] While the plaintiff relies also on Rule 7-9(2)(c) (immaterial) and Rule 7-9(2)(e) (abuse of process), the essence of the plaintiff’s application relates to Rule 7-9(2)(

a) in that the plaintiff asserts that the statement of defence discloses no reasonable defence. [ 6 ] The plaintiff is correct. The defence does not set out any legal basis for Mr. Sisetski having withheld payment of the condominium fees. Of course, Mr. Sisetski states in his defence that he ceased paying the fees out of frustration over the matters described in the defence. His frustration with those matters, however, does not provide to him a legal basis for not paying. [ 7 ] The Condominium Property Act, 1993 , SS 1993, c C-26.1 , provides, in

Part IV, for a condominium corporation such as the plaintiff to levy and collect condominium fees such as those at issue here. In s. 55 a corporation is required to establish a common expenses fund, to which condominium fees relate. Section 56(1)(

a) empowers the corporation to require payment of those fees from the condominium unit owners: 56

(1) The corporation shall levy on the owners of the units condominium fees consisting of: (

a) contributions to the common expenses fund in amounts determined in accordance with

section 57; and (

b) contributions to the reserve fund in amounts determined in accordance with

section 58. [ 8 ] At the beginning of

Part IV, s. 54(3)(

b) provides that an owner is liable for and must pay such condominium

fees even if the owner is making a claim against the condominium corporation : 54

(1) Subject to subsection (2), the corporation is responsible for all expenses and liabilities incurred with respect to the common property and common facilities included in the condominium plan.

(2) The developer is responsible for all expenses and liabilities with respect to the common property and common facilities included in the condominium plan that are incurred in the period commencing on the day that titles are issued pursuant to the condominium plan and ending on the day preceding the day on which condominium fees are first levied on the owners of the units.

(3) An owner is not exempt from the obligation to contribute to the common expenses or reserve fund expenses even if : (

a) the owner has waived or abandoned the right to use all or part of the common property, common facilities or services units; (

b) the owner is making a claim against the corporation ; or (

c) the bylaws restrict the owner from using all or part of the common property, common facilities or services units. (emphasis added) [ 9 ] The effect of s. 54(3)(

b) is that if a condominium owner believes that some of the condominium fees should not be payable, that condominium owner may pursue such a claim against the condominium corporation – but while doing so the condominium owner must continue to make the payments. That is, s. 54(3)(

b) expressly forbids a condominium owner from doing what Mr. Sisetski has done in withholding payment of condominium fees in light of a dispute. The condominium fees must continue to be paid while the dispute is being resolved. [ 10 ] Mr. Sisetski may ask what he ought to have done, to address his frustration while complying with the law. The answer is that he ought to have continued to pay the condominium fees but pursued the plaintiff for reimbursement or compensation relating to the matters described in the statement of defence.

That pursuit likely would have started with discussion and, if necessary, may have progressed to a court action – a court action that would have progressed while Mr. Sisetski continued to pay the condominium fees. [ 11 ] All of this is consistent with the conclusion reached by Justice Robertson in striking out a statement of defence in Westfield Twins Condominium Corp. v Wilchuck , 2019 SKQB 173 at para 29 : 29 Third, Wilchuck admitted at chambers that he has refused to pay these levies since December 2017, apparently in retaliation for Westfield failing to repair water damage. Clause 54(3) (

b) of The Condominium Property Act, 1993 , reproduced above, expressly bars unit owners from failing to pay condominium fees on the basis of a claim against the corporation. [ 12 ] The statement of defence does not disclose a reasonable defence. For that reason, the application is granted and the statement of defence is struck out. Costs [ 13 ] Typically, when an application such as this is successful, the defendant is required to pay costs to the plaintiff, to partially compensate the plaintiff for incurring the expense of making the successful application.

There is no reason to deviate from that practice here. [ 14 ] The plaintiff will have the costs of this application, under column 2, in any event of the cause. J. G.M. CURRIE KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 112 Date: 2023 06 05 Docket: KBG-SA-01087-2022 Judicial Centre: Saskatoon ___________________________________________________________________________

BETWEEN: THE OWNERS: CONDOMINIUM CORPORATION NO: 101108111 PLAINTIFF/APPLICANT - and - LEONARD PAUL SISETSKI DEFENDANT/RESPONDENT Appearances: Taylor L. Wilcox for the plaintiff David Eckert (Power of Attorney for Mr. Sisetski) for the defendant ___________________________________________________________________________ June 28, 2023 CORRIGENDUM CURRIE J. to June 5, 2023 FIAT (2023 SKKB 112) ___________________________________________________________________________ [1] Paragraph 12 has been changed to read as follows: [12] The statement of defence does not disclose a reasonable defence. For that reason, the application is granted and the statement of defence is struck out. J. G.M. CURRIE