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July 10, 2017

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Page 2 July 10, 2017 • law Times NEWS The decision also turned on the interplay between two sec- tions of the Condominium Act — ss. 85(2) and 134(5). Section 85(2) of the act gives condo cor- porations three months after the unit owner's default to register a lien. The bank's position was that if a condo corporation has a court order setting a deadline, that is when the default happens and the clock starts to run on the 90-day limit. The condo corporation, how- ever, pointed to s. 134(5), which it argued says condo corpora- tions can set the timetable for payment by a unit owner when they are awarded damages or costs. The Court of Appeal, however, found that the section is not intended to permit a con- dominium corporation to "en- large the lien perfection period after a default in payment has already occurred." Benjamin Frydenberg, the lawyer for CIBC Mortgages, says the court struck a reasonable balance among the interests of the affected stakeholders. "Had the court acceded to the position of the condomin- ium corporation, essentially the lien claimant under a form of lien legislation would have an unfettered discretion as to when the clock starts to click for per- fecting their own lien claim," says Frydenberg, a partner in Chaitons LLP's litigation group. James Davidson, a partner with Davidson Houle Allen LLP, who was not involved in the case, says he was disappoint- ed with the decision, as he had assumed that s. 134(5) allowed condo corporations to set a time period for payment. This would mean that there would not be a default until the specific due date had lapsed. "I don't see the great added risk to the mortgagee because of that little bit of delay," he says. Jonathan Fine, the lawyer representing the condo corpora- tion, declined comment. LT that were critical of the chang- es because of the impact on chronic petty offenders, many with substance abuse or mental health issues. One of the most high profile of these decisions was issued by Justice David Paciocco in 2014 in R. v. Michael. The defendant was a 26-year- old homeless man of Inuit back- ground with substance abuse issues, required to pay $900 in fines for property offences. Pa- ciocco, then a provincial court judge, found that the mandatory surcharges violated the Charter. Since it was a provincial court decision, it was not binding on other judges. Paciocco was elevated to the Court of Appeal this spring. His new colleagues made reference to his decision in Mi- chael and disagreed that the facts of that case supported the finding that the provisions are unconstitutional. The Court of Appeal agreed that five of the appellants in Tinker face "social hardship" in their lives. But if they cannot pay the fines within the time permitted, they can go to court to seek an extension. As well, the appeal court said it is reasonable to require an ex- planation if an offender has de- faulted. "Calling them to account in this fashion, in the open and public forum of the court, and inquiring into their excuse for refusing to pay acts as a reminder of the offender's accountability to victims of crime," wrote Pardu. Funds generated from these surcharges are put into the Vic- tims Fund in Ontario to support programs with services for vic- tims or grants for community agencies. According to the province, 97 per cent of the $47.5 million raised for the fund in the 2014/15 fiscal year came from surcharges on provincial fines, such as high- way traffic offences. Three per cent came from Criminal Code surcharges. The Income Security Advo- cacy Centre, a specialized Legal Aid Ontario clinic, was also an intervener in Tinker. Jackie Esmonde, a staff law- yer who acted for the centre, says the fines have a significant im- pact on the most marginalized offenders. "They may never complete their sentence. It is a different system of justice for the poor," she says. As well, efforts to reha- bilitate are hampered by restric- tions on obtaining documents such as a driver's licence until the fines are paid in full, notes Esmonde. The decision underestimates the difficulty some individuals will have in bringing applica- tions for more time to pay, sug- gests Lumba. "The Court of Appeal finds that the constitutionality of this regime can be saved by the belief that a poor offender can per- petually apply for an extension of time. Respectfully, that is not realistic," she says. Chronic of- fenders who are in default could also spend more time in custody waiting for a hearing to seek an extension, she adds. While the law in this area is settled for now in Ontario, the Supreme Court of Canada will hear a challenge to the surcharg- es in January, stemming from a Quebec case. A bill that would restore some discretion to judges on whether to impose the fines was introduced last fall by federal Justice Minister Jody Wilson- Raybould. The bill has not moved for- ward and remains in first read- ing. A spokesman for the federal Department of Justice says man- agement of the legislative agenda is up to the government house leader. LT Continued from page 1 'It is a different system of justice for the poor' 90-day deadline for lien registration confirmed Continued from page 1 }«°>Ü°ÕÌÀÌ°V> GPLLM Global Professional Master of Laws [Get a Master of Laws] Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS – FOR L AWYERS AND NON - LAWYERS Untitled-2 1 2017-06-05 10:55 AM

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