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Oppression

Jiakang Wu v. PCC No. 245     Noise & vibration
Couture v TSCC No. 2187       Part 1  Parking spot
Couture v TSCC No. 2187       Part 2  Costs
Dorrett Weir vs PCC No. 485 
Water leak


Jiakang Wu v. PCC No. 245
Ontario Superior Court of Justice
Court File No: CV-14-146-00
Before : Justice Lemon
Date: 06 May 2015

Ms. Wu spent six years battling her board to get them to stop the excessive elevator noise and vibration that was preventing her from enjoying the use of her top floor unit.

Ms. Wu purchased her penthouse unit on February 28, 2008. The mechanical, elevator, and HVAC equipment which service the building are located on the level above her unit. In September 2008, after living in her unit for six months, noise and vibration began to affect Ms. Wu’s unit.The vibration was so bad the her furniture would move and scratch the floor.

The judge found that Ms. Wu was oppressed by PCC #245 and her interests were unfairly prejudiced and unfairly disregarded.

The judge ruled that PCC #245:
"did a lot of investigation but little to no work to solve the problem.There are not even any quotes for me to consider if the work is appropriate. There are no financial statements to consider balancing the interests of Ms. Wu with those of the rest of the residents. All I have is a promise to do work that is needed. Since Peel (the condo) has done virtually nothing since 2011, I am not considering “good, better, best” solutions; I am considering no solution at all. Peel has failed to maintain and repair the elevators. It is in breach of its obligations."

"Since 2011, Peel has been dragging its feet. There is no reasonable explanation given as to why this took so much time. Having been prodded by counsel and this application, Peel got underway again. It now promises to take further steps that it should have taken long before.

I find that Ms. Wu has been oppressed, unfairly prejudiced and unfairly disregarded. ... Studies are over; action is necessary."

Damages
"Here, I am asked to determine Ms. Wu’s loss only from the written record.  There are no corroborating records. What other evidence there is, as set out above, does not corroborate her upset. There is no medical evidence to support her medical diagnosis or any treatment. Ms. Wu’s parents are not applicants. I cannot award damages to Ms. Wu for any hardship that may have occurred to them.

Peel has been oppressive and unfair to her for approximately 5 years. Based on what I have, I assess damages at $30,000.00."

Costs
The judge asked for submissions for costs.

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Couture v TSCC No. 2187
Ontario Superior Court
Court File No: CV-15-527224
Justice F.L. Myers
Date: 04 December 2015

Overview
The residential building at 2 Ridelle Avenue in Toronto is owned by TSCC # 2187. The condominium consists of 44 residential condominium units plus common areas. The common areas include a parking garage that contains only 32 parking spaces.

"the power of the collective is not absolute"


"In condominium living, the needs of the many outweigh the needs of the few.  However, the power of the collective is not absolute.  Power must be exercised within the bounds of the condominium’s established jurisdiction and with due respect to the legal rights and reasonable expectations of the few or the one."

“people sometimes see exactly what they wish to see”

"As with most efforts to balance competing rights, the fact that people are involved complicates matters. It is well understood that in complicated moments people sometimes see exactly what they wish to see. Moreover, some find other’s illogic and foolish emotions an irritant."

"In this case, like so many others involving neighbours, a discrete issue was allowed to escalate out of hand causing needless distress and expense. Like excellent tacticians, the parties let their counsel attack while they sat and watched for weakness. What they did not do was to act like good neighbours.  They were not of the body."

“having is not so pleasing a thing after all as wanting.”

"It now falls to the court to unwind the tangled web that the parties wove. I expect that neither side will be particularly pleased with the outcome. Rather, I expect that they may find that having is not so pleasing a thing after all as wanting."

"So this is basically a battle that originated because the condo does not have enough parking spaces and the board wanted the owner to remove her clunker and allow the board to rent the parking space to a different owner."

Ms. Couture resisted.

What happens next is a battle between a board who went too far against an owner who fought back, and who also went too far.

This case is fascinating as Justice Myers lists all the naughty things the board did and how the owner hurt her case.
1.
The Board returning her April and May postdated maintenance fee cheques in the amount of $780.51, which include the $50 parking fee.
2.
The board sent the owner a letter.

Justice Myers stated: "There is much notable about this letter.  First, its tone is disrespectful and dismissive.  It is not consistent with an amicable, businesslike, or neighbourly tone among a community member and her elected representatives. Second, the board does not explain how it purported to confirm the termination of the applicant’s rights prior to the expiration of its own deadline of March 31, 2012 set in the February, 29, 2012 letter. The board recites its exclusive entitlement to assign parking spaces, but it ignores that under the declaration it carries out that power by entering into leases with unit owners. A lease is an agreement that provides for exclusive possession of a defined piece of property on defined terms. The board’s authority to assign parking spaces is carried out by agreeing to enter into leases with owners. Once it has done so, the board does not have a unilateral right to ignore the owner’s leasehold interest. Rather, if it wishes to terminate an owner’s right to use a parking spot under a lease, it must proceed in accordance with the terms of the lease."
3.
"Rather than addressing the issues that arose the parties’ respective (mis)understandings of their rights and obligations, they determined to take tactical positions with each other that basically involved: name-calling, hyperbole, failure to listen, taking extreme positions, wasting time, money and effort, and causing themselves and each other distress."
4.
"The applicant knew full well that the Board did not wish to receive a cheque from her that included a $50 component for her parking space rent after it purported to terminate her rights at the end of March.  The applicant’s continued insistence upon providing cheques that included rent for the parking space was nothing more than a bare tactic designed to enable the applicant to argue later that if the Board cashed one of the cheques, it would have confirmed her lease by accepting rent.  Moreover, by sending cheques that she knew included rent that the Board had returned already, the applicant was falling behind on her common expense payments that represented more than 90% of the value of the cheques."
5.
"Somehow, it dawned on neither side that it might be a good idea to provide for a mechanism for the applicant to pay her common expense fees on a without prejudice basis, either with or without the extra rent component.  Instead, correspondence turned to the issue of collection of arrears of common expenses and legal fees."
6.
"Moreover, in separate correspondence the Board threatened to levy an “administration fee” of $250 as compensation for the inconvenience of corresponding with the applicant."
7.
In September 2012, the owner, in accordance with Bylaw No. 2 of the condominium requested mediation.

By letter dated October 9, 2012, the condo corporation, "acting without legal counsel, declined to meet as they purported to determine that the applicant did not have a claim. Moreover, it expressed its, “considered opinion that the Court’s [sic] may view, Ms. Couture as a vexatious litigant.”  I respectfully beg to differ. In a fit of arrogance, the board concluded its letter as follows:

As such the Corporation respectfully declines the invitation to meet with Ms. Couture and will not subject itself to any arbitration or mediation as clearly all matters have been determined.

We trust this information settles these meritless matters."
"Life would be much neater if all disputes could be terminated unilaterally."
8.
"Life would be much neater if all disputes could be terminated unilaterally. The board somehow satisfied itself that it did not need to comply with the condominium’s mediation and arbitration bylaw or the provisions of section 132 of the Condominium Act, 1998 concerning mediation and arbitration. Rather than following the statutory prescription to attempt to resolve matters without resort to formal litigation and within the body of the condominium, the board was inviting a lawsuit against the condominium corporation. [1]"
9.
"The board’s witness confirmed that the board knew that it was required to participate in mediation when it refused to do so. No excuse was put forward before me for its initial refusal to comply with its legal obligation.  After being contacted by one of the potential mediators named by the applicant, the board responded by choosing a different mediator and requiring that the applicant pay 100% of the mediation costs in advance.  Under the terms of its Bylaw No. 2 however, the costs of mediation are to be split equally."
10.
The First Lien
"On October 9, 2012, counsel for the condo corporation advised the applicant that it had filed a lien against title to her unit in the amount of $5,405.47 consisting of arrears of common expense payments for October, 2012 of $664.10, outstanding legal costs of $3,241.37, and $1,500 for legal fees in relation to drafting and eventual removal of the lien itself.  Counsel indicated that payment was due by the end of the month, failing which the corporation may immediately commence power of sale proceedings."

The applicant made the payment under protest.

"But, as noted above, the condominium corporation refused to accept common expense cheques that included an extra $50 for rent for the parking spot. Had it truly been concerned with collecting its common expenses, it could have readily deposited the cheques and either refunded the parking overpayment or negotiated a without prejudice provision as discussed above.  Moves and counter-moves. Tactics and counter-tactics." ...

However, in my view, the filing of this lien against the applicant’s unit by the condominium corporation was neither a reasonable step nor a lawful one."
administration fees (fines)
11.
"By letter dated December 13, 2012, the board purported to levy a $250 administration fee against the applicant, “for its need to take time away from other matters to continuously notify you of your failing to heed past warnings” concerning her husband’s behaviour  Not surprisingly, the applicant denies the allegations concerning her husband.

Moreover, she denied the board’s entitlement to levy fines. Continued nasty exchanges ensued leading the board to levy another $250 “administration fee” in relation to an allegation that Mr. Couture tampered with security cameras. ... There is no evidence before me of anyone observing Mr. Couture touching a security camera despite the board’s allegation that he was observed doing so."
12.
"Article 10 of Bylaw No. 1 of the condominium corporation provides in part as follows
The contravention of any provisions of the Act, declaration, by-laws and/or rules of the Corporation, shall give the Board, subject to its duty to act reasonably in addition to any other rights set forth in the Act and the declaration, the right to:

(d)  impose an administrative fee of up to $250 per incident against the owner of a Unit responsible for breach of the Declaration, By-laws and/or Rules of the Corporation by the owner… as a reasonable cost incurred by the Corporation for the extra administrative work involved in enforcing the Declaration, By-laws and/or Rules of the Corporation."
“such bylaws are ultra vires or invalid”

"I agree with Mr. Justice Maloney in Basmadjian v. York Condominium Corporation No. 52, where his Lordship suggested that such bylaws are ultra vires or invalid for being beyond the powers of the corporation to enact.  Counsel for the condominium corporation did not point to any provision of the statute empowering the condominium corporation to enact bylaws allowing the Board to levy administrative fines. ... an administrative fee also has the potential to operate as an arbitrary weapon. Given the nature of condominium disputes—involving significant emotional components brought on by the parties’ ongoing physical proximity—and the policy favouring consensual dispute resolution mandated by the statute, I do not view the power to levy administrative fees or fines as being commensurate with the statutory scheme or purpose. Accordingly, I view the administration fees as improper and the provision that purports to authorize them as ultra vires the corporation."
13.
The applicant served a notice of arbitration on May 7, 2013. The Corporation was required to respond within five days in accordance with its bylaw. It did not do so.
14.
The Second Lien
In July 2013, the condominium corporation gave notice of a second lien to the applicant.  "It made reference to an invoice dated March 25, 2013 for $3,441.60 for costs incurred by the corporation as a result of the applicant’s continued pursuit of her “baseless issues” and in relation to her husband’s alleged misconduct. It is clear on the face of the letter that the defaults upon which the lien was being claimed occurred more than three months previously and hence the notice was invalid. Moreover, in the letter, the board returned to the applicant her cheque in the correct amount for common expense fees for March, April and May, 2013. It did so because the cheque did not also include payment for the further legal costs sought in the March 25, 2013 invoice. The letter also gave notice of a further claim for fees of $12,003.56. The invoices provided as back up for this further charge show that only approximately 10% of the amount claimed was incurred in the prior three months and the bulk that amount consisted of the common expense payments that the board had refused to receive unless all of its other claims were paid without dispute. The back-up claimed as well for fees incurred back to 2009 including thousands of dollars for which the limitation period would have already expired even if they were properly claimed.

More correspondence; more name calling; more threats of proceedings; more threats of costs; and more administrative fees ensued.

On August 30, 2013, the condominium corporation registered its second lien against title to the applicant’s unit in the amount of $14,511.16.  Counsel added another healthy $1,500 for its costs in preparing and ultimately discharging the lien. One pauses to wonder if counsel ought to be entitled to charge for preparing and registering a lien for amounts that were too old to be lienable on their face.
15.
Finally, by notice of application dated September 13, 2015, the applicant sued the condominium corporation and each of its directors
Analysis
1.
"Moreover, the ancient legal expression “it takes two to tango” applies to this case.  Rather than fixing her car, the applicant sicked her lawyer on the board to immediately allege bad faith and to make repeated threats with lengthy, self-serving, repetitive recitations that brazenly evading the key issue of whether the applicant’s car had been repaired. Her actions did not demonstrate good faith, reasonable, or neighbourly conduct either."
2.
"In my view, neither lien was registered appropriately. The bulk of the amounts claimed were no longer subject to a lien by the time the liens were filed.  To the extent that the liens included amounts for recent common expenses, the applicant had tendered those payments. In the first lien, the payments were refused because they included an extra $50 for parking.  In the second lien, the payments were refused because they were not accompanied by payments of other alleged outstanding legal fees.  In both cases, the liens were used to punish the applicant in legal fees rather than as bona fide methods to collect amounts actually fairly subject to lien rights. The applicant is entitled to the return of funds that she paid on the liens under protest net of the common expense component of those amounts. The applicant is therefore entitled to judgment for $4,741.37 on the first lien and $9,881.66 on the second lien with prejudgment interest under the Courts of Justice Act."
3.
"I have already found the fees levied by the condominium corporation to have been beyond the scope of its authority. As I have already adjudged the condominium corporation liable to refund amounts paid on account of the liens, any amounts actually paid by the applicant for administrative fees are already being refunded to her."
4.
"The condominium corporation offers no good faith explanation for its refusal to engage in mediation and arbitration as required by its bylaws and the statute. This matter could have been resolved before the end of 2012 had the parties sat down in good faith to work out their issues."
5.
The oppression remedy does not protect a party’s wish list.
6.
"... While the applicant may have been over-stating her rights to her parking space, she did not deserve the harsh, vindictive, burdensome treatment that she received. As noted above, had the parties gone to mediation and arbitration right away, the merits could have been addressed. Instead, the board of directors acted with arrogance and declined to follow its own internal law and the law of the province in responding as it did."

"While the applicant was plainly engaged in perpetuating an agenda of her own, the respondents were bound to behave better. The condominium corporation is governed by legal duties designed to protect and enhance the communal body. The registration of facially invalid liens, levying of subjective and arbitrary fines, and the refusal to mediate/arbitrate as required, were not reasonable responses by a board seeking to manage the affairs of the corporation reasonably and in good faith. They were punitive responses meted out by managers who would brook no dissent from the likes of the applicant. Resistance was futile. The board of directors disregarded the applicant’s interests from the outset. Its responses were indeed harsh, burdensome, and oppressive."
7.
Oppression
"In light of the breaches and oppression found, the applicant is entitled to compensation under subsections 134(3)(b) and 135(3)(b) of the statute."

"In all, there is no basis in the evidence to find that the wrongful acts to which I have referred above caused the applicant to move out of her condominium unit.  I do not accept the applicant’s self-serving bald statements in this regard."

"Nor would I award the applicant any damages for the physical and distress that she says she has endured. There is no expert medical evidence before the court linking the applicant’s symptoms to the wrongful acts of the respondents."

"In the absence of proof of further damages, in my view, the applicant is entitled to $1,000 as nominal damages for oppression."
8.
Director's named on the application
"I do not need to deal with the issue of personal liability of the other respondents.  The applicant confirms that since she has sold her condominium unit, she no longer has an interest in whether her damages are paid by the condominium corporation or the individuals."

Outcome
"The applicant is entitled to judgment requiring TSCC No. 2187 to pay her the sum of $15,623.05 plus prejudgment interest as discussed above. The other relief sought by the applicant has become moot by reason of her sale of the unit."

(Plus she will get legal costs.)

“This section unfortunately incentivizes recalcitrant, litigious behaviour by condominium boards of directors and their advisors whom may be so inclined.”


Note: 1
Perhaps the board had an eye toward subsection 134 (5) of the statute that entitles a condominium corporation to full indemnity costs in litigation against a unit owner in which the condominium corporation obtains any award of damages or costs.  This subsection performs an important role to protect innocent unit owners from paying the price of unmeritorious litigation.  However, it also provides a skewed incentive to boards of directors and their advisors who can wield a heavy sword over the heads of unit owners.  In this case, for example, by rejecting the applicant’s common area expense cheques, the board could have a high degree of certainty that it would be entitled to obtain a judgment at least in the amount of outstanding common expenses.  Were that the case, it would then attach a lien to the applicant’s unit for its full indemnity costs. This section unfortunately incentivizes recalcitrant, litigious behaviour by condominium boards of directors and their advisors whom may be so inclined.

Interesting case
It is interesting to see how condo disputes can spin so far out of control and how outrageous condo boards can act. There is something about using someone else's money that seems to fuel a lot of condo lawsuits.

Justice Myers remarks are both informative and witty. His judgments are a joy to read. Here is an amusing National Post article on this condo dispute.
http://bit.ly/1IGlr2u

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Couture v TSCC No. 2187
Ontario Superior Court
Court File No:  CV-15-527224
Before:   Justice F.L. Myers
Read:     January 7, 2016

Costs  (edited)
"The applicant claims costs on a partial indemnity basis in the amount of $20,885.41 all-in. She says that she achieved substantial success. The respondents ask that the applicant be denied costs or that the quantum be limited.

I did find that the respondents had acted illegally and oppressively. The enforced liens that were plainly invalid on their faces. They violated their own by-laws by refusing to participate in mediation and arbitration.  They repeatedly levied arbitrary administrative fines against the applicant. And they wholly ignored the applicant’s legitimate expectations, and those of all unit holders, that the board and management would comply with the corporation’s internal law and documentation (as well as the law of the land of course).

However, as discussed in my Reasons, the applicant brought much of this upon herself. While she was entitled to expect lawful, neighbourly treatment, she too failed to conduct herself or these proceedings on a reasonable basis.  Rather than raising a question fairly for resolution, her first position was to make nasty and uncalled for allegations against the board. She adopted transparent strategies to try to lure the board into accepting rent while letting her common area expenses run into arrears. She let this proceeding sit for a year and then grossly over-reached in her claims. She recovered nothing on damages claims in the hundreds of thousands of dollars.

Although she had some minimal success in getting back money wrongly taken, that was not the thrust of the case. The case was about a clash of wills and strategic gamesmanship without regard to the harm being caused on both sides.

 In my view, the parties should each bear their own costs."

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Dorrett Weir vs PCC No. 485
Ontario Superior Court of Justice
Court File No: CV-16-1469-00
Released:  20 October 2017
Before:  Justice Petersen

Dorrett Weir owns a residential penthouse unit in a 340 unit, 22 storey condo in Mississauga.

In June 2015, after a heavy rainfall, Ms. Weir began to experience water pooling on the floor of her solarium. The water leakage stopped in the spring of 2017, after roof repairs and exterior sealant repairs were completed above and around the solarium.

The corporation had trouble finding the source of the leakage and resulting mould. They blamed Ms. Weir for leaving her windows open.

Ms. Weir retained a lawyer, who requested that these issues be addressed immediately, failing which Ms. Weir would proceed with legal action.

Ms. Weir commenced her Application claiming oppression on March 29, 2016. By the time the application was heard, the leakage had stopped.

 In order to establish entitlement to an oppression remedy under s.135 of the Condo Act, a claimant must satisfy a two-prong test. She must show that
(i)
the respondent failed to meet her reasonable expectations and
(ii)
the respondent’s conduct was or threatened to be oppressive or unfairly prejudicial to her or unfairly disregarded her interests.

The issue to be decided was whether Ms. Weir's expectations were reasonable and, if so, whether the Corporation's conduct failed to meet her legitimate expectations in a manner that was oppressive, unfairly prejudicial to her, or unfairly disregarded her interests.

Conclusion
"The Corporation’s conduct was, in certain respects, less than neighbourly and short of ideal. It was often deficient in its communications, it entered her unit unlawfully on one occasion, and it was heavy-handed in its demand for payment of Mr. Beattie’s (the engineer) fees.

Its adversarial stance is, however, justified by the fact that Ms. Weir had retained counsel and commenced an Application against the Corporation.

The Corporation’s attitude was increasingly combative and its actions were at times heavy-handed, but its conduct was not so egregious as to constitute oppression or unfair prejudice to Ms. Weir and it did not unfairly disregard her interests.

 Ms. Weir’s Application is therefore dismissed."

Comments:
I take two things from this judgment. One, it may be very difficult to prove oppression. The second lesson is that an owner should be quick to seek legal advice but I suggest that they do so quietly and be very slow to threaten a condo board with legal action.

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