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Lahrkamp’s nine year battle to examine records

An appeal against examination restraints
Owner wins small claims case
Board allowed to redact the proxies
Nine year dispute ends (?) in 12 day trial
Mr. Lahrkamp declared a vexatious litigant


MTCC No. 932 v. Lahrkamp, 2009 ONCA 362
Docket: C48853
Court of Appeal for Ontario
Laskin, Simmons and Juriansz JJ.A.
Heard: 10 March 2009

On appeal from the judgment of Justice Nancy Backhouse of the Superior Court of Justice dated 28 April  2008.

Mr. Lahrkamp, a unit owner in a condominium, appealed an order obtained by his condo corporation regulating and restricting the exercise of his rights to examine condominium records and to obtain copies of them.

The application
The board of directors applied for the order on the basis that the Mr. Lahrkamp had made and pursued an unrelenting stream of requests for records to the point that his conduct, in effect, amounted to harassment of its management staff.

In its application, the board sought orders restraining Mr. Lahrkamp from: harassing, communicating, or having contact with any member of the board, management staff, security personnel, or any other employee of the condominium; requesting further records from the condo; and, coming within 25 feet of the management office.

The board also requested that Mr. Lahrkamp be ordered to either dismantle or render inactive his Internet website.

The judgement
The application judge found that Mr. Lahrkamp’s conduct to the staff of the management office and to a member of the Board of Directors amounted to harassment.”

She noted that although the Act did indeed give Mr. Lahrkamp the right to examine the corporation’s records, he was not entitled to abuse that right “by conducting a campaign by siege against the management office and directors.”

On the basis of these findings, the application judge made an order restraining Mr. Lahrkamp from:
1.
communicating with any employee of the management office or member of the Board of Directors, other than in writing; and
2.
entering or coming within 25 feet of the condos management office.
3.
Mr. Lahrkamp must request in writing any records of the corporation that he wishes to receive; he could not submit more than one request for the same record; and, if he did submit more than a single request, the corporation would not be required to provide a further response; 
4.
Mr. Lahrkamp must pay in advance the photocopying charges for any document he requested; and
5.
Mr. Lahrkamp was not permitted to review any records in advance of a request for production.
Costs
The application judge awarded the corporation costs in the amount of $30,000, and granted the respondent a further $15,000 as “additional actual costs” under Section 134(5) of the Act.

The appeal
Mr. Lahrkamp appeals the application judge’s decision on the merits, as well as from her costs disposition. He advances several arguments.

The appeals court accepted that the application judge did not intend to make a finding of actionable harassment. The record before the application judge made clear that the relationship between Mr. Lahrkamp on one side, and the board of directors and management staff, on the other, was extremely strained.

That strained relationship, and Mr. Lahrkamp’s contribution to it, provided a basis for an order regulating the manner in which he should exercise his rights under the Act. Such an order was justified and required to ensure the parties’ relationship remained workable.

On the particular facts of this case, the motion judge’s remedy, while is entitled to deference, is too extreme to be sustained.

Given the corporation's acknowledgement that Mr. Lahrkamp's behaviour did not amount to actionable harassment, we were not persuaded that the orders made by the application judge prohibiting Mr. Lahrkamp from exercising his statutory right to examine the condo’s records, coming within 25 feet of its management office, or communicating with members of the board of directors or management staff other than in writing, were supportable.

Accordingly, we would set aside these injunctive aspects of the application judge’s order.

We would leave in place the application judge’s orders that Mr. Lahrkamp make his requests to examine documents or for copies thereof in writing, that he not make more than one request with respect to the same record, and that he pay in advance the reasonable photocopying charges of any copies of records that he requests.

The appeals court stated that it is for the board to decide what notice is reasonable and what is a reasonable time and place for Mr. Lahrkamp to examine the records.

Judgment
We would allow the appeal in part and set aside the injunctive components of the application judge’s order as discussed above and dismiss the remainder of the appeal.

Costs
Counsel agreed that the costs of the successful party on the appeal should be fixed in the amount of $30,000, inclusive of disbursements and GST. Given Mr. Lahrkamp’s partial success, costs of the appeal are fixed in his favour in the amount of $20,000, inclusive of disbursements and GST.

The result of the appeal changes the relative success of the parties on the application. The costs of the application are varied and fixed in the amount of $20,000, inclusive of disbursements and GST, in favour of the corporation. This amount includes the “additional actual costs” factor under s.134(5) of the Condominium Act.

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MTCC No. 932 v. Lahrkamp
Small Claims Court—Toronto, Ontario
[2010] O.J. No. 6113
No. TO 88334/09
M.D. Godfrey J.
Date: 29 Oct 2010

The plaintiff in this action, pursuant to section 55 of the Condominium Act ("the Act") seeks damages of $500.00 based upon the alleged failure of the defendant to provide certain records set out in the plaintiff's amended statement of claim. The plaintiff also seeks production of these records for examination. The defendant takes the position that the plaintiff is not entitled to the records because:
1.
the Act inferentially requires the plaintiff to provide a reason for every requested record (see subsection 55(3));
2.
the Act does not allow for the release of certain exempted documents (see sub clauses 55 (4)(b) and 55(4)(c)); and
3.
the Act permits refusal of records if a reasonable excuse exists for not providing the said records (see subsections 55(8) and 55(10)).
There appears to be no dispute that the plaintiffs requests for records were made in writing, and the plaintiff requested in writing the $500.00 penalty provided by subsection 55(8) of the Act.

The plaintiff and defendant had widely divergent opinions as to how subsection 55(3) should be interpreted. The defendant felt that every request for records must be accompanied with a reason for the requested records, which reasonably relates to the purposes of the Act. The plaintiff opined that the records were an "open book" for the condominium owners.

I do not agree with the blanket proposal of the defendant that every request for documents must be accompanied by reasons for the request. While I agree with the defendant's position that the Board is charged with the duty of "balancing the private and communal interests of the unit owners", I do not believe that every request automatically requires a reason for the request. A reason reasonably related to the purposes of the Act for some requested documents may be self evident from the surrounding facts, or may be reasonably inferred from the nature of the record requested. The right of a corporation to refuse records may be appropriate where the actual motivation behind the request is being challenged, or the burden and expense to the corporation is in issue. To create a universal rule to apply to every conceivable request is impossible. It is necessary to look at the facts surrounding each request to determine whether the condominium corporation had a reasonable excuse in not providing the records for examination.

Each record requested by the plaintiff will be considered separately unless otherwise noted.

1.    Front Lobby Expenditures, Letters of Representation and
       2006 General Ledger
The request for the above noted items clearly involve a significant burden and expense to the defendant. The plaintiff refused to provide a reason for these documents claiming that the Act did not require him to provide one.

Despite the fact that the defendant followed proper accounting practices as set out in the Act, the evidence at trial showed that the plaintiff wanted to satisfy himself beyond standard auditing procedures that everything was in order.

From that perspective the plaintiff was on a pure "fishing expedition" without a shred of evidence to support his suspicion of impropriety in regard to the front lobby expenditures, any other audited expenditure, or the letters of representation.

The weak basis for the requested records together with the burden on the defendant, both in time and money, allows me to conclude that the defendant had reasonable excuse not to provide the aforementioned named records.

2.  Records Relating to Suite 1407 (the Plaintiff's residence) from 2003
I find that the defendant had a reasonable excuse to deny these records on the basis that a general search would have been expensive and too time consuming for the defendant. The plaintiff again did not provide reasons to counter the defendant's position in denying the records.

3.    Owner List
The request for the owner list was properly denied by the defendant. Subclause 55(4)(c) as a general rule exempts the right to examine records relating to specific units or owners. The plaintiffs reason for wanting the list was described as a need to communicate with others.

The reason provided was clearly too vague and infringes on the privacy rights of the communal owners.

Before dealing with the remaining record requests, it is necessary for me to comment on the exception in subclause 55(4)(b) as discussed in the Divisional Court case of Fisher v. Metropolitan Toronto Condominium Corp. 596, 2004
CarswellOnt 6242. The court in that case stated that the litigation privilege in subclause 55(4)(b) can be claimed if litigation was being contemplated by the party requesting the records, but that the privilege applied only to records that related to the contemplated litigation.

The facts of that case are clearly distinguishable from the facts of this case. In Fisher, the court was satisfied on the facts that the requested records sought related to litigation that was being contemplated by the plaintiff at the time the request was made, and therefore were exempt under subclause 55(4)(b).

4.    Proxies and Ballots used at the AGM of 2009 and 2010
I am unable to conclude on the evidence that the request for proxies and ballots are connected to the plaintiff's desire to commence litigation as alleged by the defendant.

Although the defendant attempted to portray the plaintiff as a litigious person, I cannot conclude on a balance of probabilities that the examination of these records in itself is being done for the purpose of commencing litigation.

The plaintiff made it clear in his e-mail of August 18th, 2009 that he wanted the proxies and ballots for "validation of election results" (see Exhibit 12, Tab 1, page 53). This statement alone does not allow me to conclude that litigation was likely to ensue.

The reason provided was valid and inferentially applied to the plaintiff's request for the year, 2010 as the plaintiff was an unsuccessful candidate for the Board in 2009 and 2010. The 2010 meeting had a significant number of proxies (75-80).

The plaintiff's worry about the 2009 results stemmed partially from his concern over the April 17th, 2009 newsletter referencing the 2009 Annual General Meeting (AGM) where the plaintiff is described as somebody who if elected would be virtually impossible to work with.

The defendant took the position that the plaintiff waived his right to complain regarding the proxies since he was given an opportunity to examine the said proxies but chose not to do so. The plaintiff claimed that his right to examine was subject to an improper condition, that being that he had to review the proxies in a separate room thus missing the AGM.

I am not prepared to accept the evidence of the plaintiff that the defendant was given an unconditional choice to review the proxies and therefore the defendant cannot rely on the defence of waiver or estoppel.

Furthermore, I find that 'Rules of Order' as set out in "Nathan's Company Meetings" are guidelines only, and as such I am not convinced that the Rules of Order set out in that text have universal applicability to the facts at hand.

5.    Notices of House Rules
Subsection 58(6) of the Act entitles owners to a notice of a made, amended or repealed house rule.

Accordingly, the entitlement of the plaintiff to such a record is an example of a request where a reason should not initially have to accompany the request.

The plaintiff's concern about the validity of the house rules was evident to the defendant, when the defendant was unable to satisfy the plaintiff of the existence of a documented house rule regarding the restriction on dogs, and the inability of the defendant to properly explain away the discrepancy in two differently worded rules concerning the number of cats allowed.

The defendant was unable to provide me with a reasonable excuse for not providing records of the house rules to the plaintiff.

6.    Board of Directors Meetings -- December 4, 2007 to Present
The availability of minutes of the Board meetings seems so fundamental to the rights of the individual unit own-ers, that I see no basis initially that a reason should be provided.

If the corporation claims to have a reasonable excuse not to provide these records then they must establish a foundation to refuse the request (e.g. communal rights are being infringed, or a statutory exemption applies).

The evidence does not disclose that the defendant had a reasonable excuse to refuse the plaintiff's request for the minutes in question.

Opinion
The present action could have been avoided had the plaintiff and defendant been able to communicate with each, other in a manner which would have allowed them to appreciate each others concerns, and the basis for the position they were taking.

The legislation does not specifically require a reason for every request, nor a reason for every refusal of a record.

Suffice it to say, that in order to avoid a judicial determination under subsections 55(8) and 55(10), each side must be prepared to have a rational, open and sympathetic dialogue of their respective potential competing interests. Without such a dialogue, avoidance of a court application is likely to be remote. Based on the foregoing I order as follows:

Judgment
(a)    Judgment for the plaintiff for $500.00 plus court costs of $175.00 and prejudgment interest at court rate from September 1, 2009; and

(b)    The defendant to produce for examination the proxies and ballots used at the AGM of 2009 and 2010, the minutes of the board of directors meeting from December 4, 2007 to the present and all notices of house rules as provided in subsection 58(6) of the Act. All such records are subject to the orders made by Justice Backhouse dated April 28, 2008.

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MTCC No. 932 v. Lahrkamp, 2012 ONSC 6326
Divisional Court
File No: 222/11
Justice Lederer
Heard:  06 December 2012

 Mr. Lahrkamp sought election as a candidate to the Board of Directors of the corporation. Mr. Lahrkamp was not elected. Following the election, he requested access to the proxies and ballots in order to validate the
election results.

The corporation refused to provide Mr. Lahrkamp with access to the proxies and ballots that reflected the votes cast as part of the election. As a result, Mr. Lahrkamp brought an action in the Small Claims Court for an order requiring their production.

The judge ordered that the proxies and ballots used in the election, as well as other records of the corporation be produced to Mr. Lahrkamp.

Redacting the proxies
After the judgment was rendered and the appeal period had expired, the corporation brought a motion to vary the judgment. It sought to add a term that the proxies were to be redacted by deleting names and signatures of the owner, and the unit number from each proxy. The judge allowed the motion and varied the judgment accordingly.

Mr. Lahrkamp appeals the variation and seeks to reinstate the judgment as originally issued. He seeks production of the proxies without redaction.

Jurisdiction
The corporation stated that this Court has no jurisdiction to consider this appeal.  The Courts of Justice Act, R.S.O. 1990, c. C.43 provides for appeals from the Small Claims Court. Insofar as it is relevant here, it states:
An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action, (a) for the payment of money in excess of the prescribed amount, excluding costs, … (Courts of Justice Act, supra, s. 31)

The problem is that the original judgment is not the order from which an appeal is now being taken. The Notice of Appeal makes clear that the order being appealed is the one which varied the trial judgment to allow for the redaction of the proxies.

The Small Claims Court is designed to be an expeditious and informal forum for the resolution of disputes. The idea is that the disputes it has jurisdiction to deal with are to be dealt with quickly, cheaply and with less reliance on formal rules. The limited right to appeal is consistent with this approach.

Quite apart from whether this Court has jurisdiction to consider an appeal, the position of Mr. Lahrkamp is that the Small Claims Court judge had no jurisdiction to place any term or condition on any order requiring the production of records of the condominium corporation. Mr. Lahrkamp referred to the Condominium Act, 1998, supra, s. 55(10), which says:
If a corporation without reasonable excuse does not permit an owner or an agent of an owner to examine records or to copy them under this section, the Small Claims Court may order the corporation to produce the records of examination.

Based on this, counsel for Mr. Lahrkamp submitted that a Small Claims Court judge has only two options: he or she may (1) order or (2) deny production.

This is too narrow a reading of the Condominium Act. It fails to account for the authority provided to the Small Claims Court judge, by the rules applicable to that court.

The Courts of Justice Act, s. 25 provides the following direction:
The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.

The Small Claims Court judge would have the jurisdiction to vary or clarify an order previously made.

When the corporation came to act on the order it became concerned that it would have to redact the identity of the individual unit owners or be in breach of the Condominium Act, 1998, s. 55(4)(c).

The Mr. Lahrkamp refused to accept the redaction and, within an email exchange, asked whether the corporation planned to bring a motion “for clarification”. The judgment made with respect to the motion begins with the phrase: “the defendant has brought a motion for clarification …”.

The reasons making the clarification accept the concern that the redaction would serve to protect the privacy rights of the other owners. There is nothing to suggest that this is not a valid consideration for a proper resolution to a problem with the order, that became apparent after it had been issued.

In any event, I find that the Small Claims Court judge had the jurisdiction to clarify the order. There is no reason why the clarification should be set aside.

Costs
For oral reasons delivered today, the appeal is dismissed. Costs are sought on a full indemnity scale in the amount of $10,265.83. It is said the appeal was necessary and that the issue of jurisdiction was raised at the outset. Counsel for the Mr. Lahrkamp suggests that costs on a partial indemnity scale are more appropriated and that these should be reduced to account for the time this appeal should reasonably have taken.

On this basis costs would be $5,432.38. As a matter of policy, the Condominium Act  suggests that condominium corporations should not be put to unnecessary expense. In effect these applications are lawsuits among owners of, in part, a shared asset.

On the other hand, disputes do arise and sometimes have to come to court.  Costs to the corporation in the amount of $7,932.38.

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Michael Lahrkamp vs MTCC No. 932
Court file No: SC-13-31717-00
                       SC-14-9565-00
                       SC-15-10143-00
Before:           J Prattas DJ
Released:       08 June 2017

There was a 12 day trial to hear these three actions that started in 2007.

Mr. Lahrkamp is a unit owner at the Empire Plaza Condos at 33 University Ave. His dispute with about access to condo documents and it started in 2006 with the condo lobby renovating project.

Mr. Lahrkamp is requesting a large number of documents from 2007 to 2015 and for $1,500; $500 for each claim.

The condo countered with five reasons to deny giving access to the records including:
• many of the requests are bared by the Limitation Act.
• the proceedings are vexatious.
• this is a fishing expedition & Mr. Lahrkamp is litigating for sport.

Proxies
The 17 page judgment contains the following important points from a judgment by Justice Godfrey-2011:

A verbal direction by an owner to add a candidate's name to a proxy does not invalidate the proxy.

the addition of a candidate's name by a third party does not invalidate the proxy.

J Prattas DJ wrote: As a general proposition, proxies are presumed to be genuine unless evidence is presented to the contrary.

Inspection of records
A fair reading of the Act would lead one to conclude that the statute seems generally worded in favour of transparency, openness and disclosure.

The Transparency Principle is also supported in jurisprudence.

However, the Transparency Principle does not give an owner carte blanche to make unreasonable demands for records.

A reason to inspect records is not always necessary.

In determining if a request should be granted or not, the criteria to be used should be objectively applied: what does a reasonable owner require to inform him/herself about the proper functioning of his/her condo corporation?

Costs of proxies
The costs for reacted proxies were set at:
$1.00 per reacted page due to the third generation pages required to insure reacted information cannot be read.
$1.00 per proxy labour costs of reacting the private information.

So a total of $2.00 a page.

Costs of board meeting minutes
The cost of unreacted pages is 25 cents each.
The costs for reacted third generation pages was set at $1.00 a page.
Labour charges allowed was $1.00 per set of minutes.

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MTCC No. 932 v. Lahrkamp, 2018
Ontario Superior Court of Justice
Court File No: CV-17-583829
Date: 15 January 2018
Before: Justice Koehnen

The condo corporation sought a court order prohibiting Mr. Lahrkamp from commencing further proceeding against the corporation and persons affiliated with it, in any court except by leave of a judge of the Superior Court of Justice.

The dispute between the parties was most recently summarized as a “long, tortuous, labyrinthine and costly litigation saga.” These court proceedings have been expensive. The Corporation spent $158,114.81 defending the small claims proceedings before Deputy Justice Prattas of which Mr. Lahrkamp paid $19,000 plus HST.

Mr. Lahrkamp has made several unsuccessful attempts to be elected to the condo's board of directors. In face of this application to have him declared a vexatious litigant, Mr. Lahrkamp has commenced a further application against the Corporation by requesting an order restraining the Corporation from communicating with unit owners in a way that discourages them from voting for him in an election to the condo's board and for the appointment of an independent chair of such a meeting.

Judgment
"Mr. Lahrkamp is prohibited from commencing any proceeding in any court against the Corporation, its present, future or former directors, or its property manager, except by leave of a judge of the Superior Court of Justice.  Similarly, Mr. Lahrkamp is prohibited from commencing any action in respect of services provided to the Corporation against any service provider to the Corporation without notice to the Corporation and leave of a judge of the Superior Court of Justice."

Costs
The judge ordered costs against Mr. Lahrkamp of $13,592.87 including HST and disbursements plus $1,500 for the condo's court costs.
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