|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
||The Board returning her April
and May postdated maintenance fee cheques in the amount of $780.51,
which include the $50 parking fee.
||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."
||"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."
||"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
||"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."
||"Moreover, in separate
correspondence the Board threatened to levy an “administration fee” of
$250 as compensation for the inconvenience of corresponding with the
||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."
||"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
||"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
||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)
||"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."
||"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."|
||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.
||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.
||Finally, by notice of
application dated September 13, 2015, the applicant sued the
condominium corporation and each of its directors
||"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
||"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."
||"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."
||"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."
||The oppression remedy does not protect a party’s wish list.
||"... 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."
"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."
||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."
||the respondent failed to meet her reasonable expectations and|
||the respondent’s conduct was or threatened to be oppressive or unfairly prejudicial to her or unfairly disregarded her interests.|