Condo lien is not slander of title when the owner is in arrears
The Ontario Superior Court of Justice recently confirmed the simple notion that a condominium lien is not slander of title where the unit owner is in arrears of common expenses at the time the certificate of lien is registered on title.
The following portion of Madam Justice Low’s decision in Jeffers v. YCC 98, 2010 ONSC 474 (CanLII) is instructive:
[52] I turn now to the plaintiffs' claim against the Condo Corporation. The plaintiffs claim damages for slander of title and for property damage.
[53] The plaintiffs allege that the registration by the Condo Corporation of a notice of lien for $967 on November 22, 2005 was a slander of title.
[54] The elements of the tort of slander of title are:
(a) that the party registering the offending instrument published words in disparagement of the complaining party's property;
(b) that such words were false;
(c) that the words were published with actual malice in that the words were published with the direct objective of causing damage;
(d) that the complaining party has sustained special damages as a result.
[55] The onus of showing that the statement was false rests on the plaintiffs.
[56] The plaintiffs have not met the onus of showing that the Condo Corporation made a false statement.
After reciting the relevant evidence as to the debits and credits, Her Honour found that the unit owners were clearly in arrears of common expenses at the time the lien was registered. She then went on to say:
[72] I find that the plaintiffs have not met the onus of proof of showing that the notice of lien was false. There is no need to deal with the other elements of the cause of action. I find that the claim for damages for slander of title fails.
Justice Low then dismissed the claim for slander of title, as well as an unrelated claim over property damage. She further dismissed the unit owners’ claims against their bank over the amount owing on their mortgage.
Because they were completely successful at trial, the condo corporation and the bank were each awarded part of their legal costs. The plaintiffs (who represented themselves in the lawsuit) were ordered to pay costs of $20,000 to each defendant, representing about half of the total costs paid. In reaching her decision about the precise amount of the costs to be paid, Her Honour considered that:
The plaintiffs appear genuinely, although mistakenly, to believe that they have been treated oppressively. On the evidence before the court however, it is apparent that the plaintiffs have been the authors of their own misfortunes through their failure to appreciate the consequences of and to take responsibility for their actions and inactions, their failure to appreciate that their litigation conduct was increasing the costs which might be awarded against them, and their apparent unwillingness to take legal advice.
This observation is strikingly familiar to us condo lawyers because it accurately describes the situation in most lawsuits brought by unrepresented unit owners against their condo corporations. The outcome of those sorts of lawsuits is invariably bad, with serious financial consequences both for the unit owner plaintiffs and the defendant condominium corporations.
Unit owners with a problem with their condominium corporation should get legal advice as to whether they have a case before they start a lawsuit. They should then follow their lawyer's advice.
The Toronto Sun 
