Election irregularities

Wu v. PSCC 826
Superior Court of Justice—Ontario
Date:    2018-03-28
Court file number:  CV-12-0049-SR
Before:   Justice Sproat
Released: 28 March 2018

The Grand Ovation is a 457 unit high rise located near Square One at 310 Burnhamthorpe Rd W, in Mississauga.

This is a motion by the Plaintiff (Paul Wu) to discontinue this action without costs or with minimal costs.

This action arises from the election at the September 2011 AGM. A candidate that Paul Wu supported as director for the board lost to the Defendant, Mr. Mehrotra, by 103 to 90 votes.

The Plaintiff obtained a court order to produce and preserve the proxies. There were irregularities and concerns about the vote. For example:
a number of proxies were dated before the notice of the AGM was given, which the Defendant's lawyer acknowledged was improper;
one proxy was dated the day after the AGM;
one proxy was undated;
one unit owner who was recorded as voting for Mr. Mehrotra denied having signed a proxy;
one proxy in favour of Mr. Mehrotra had the signature of a unit holder which bore no resemblance to the signature of the unit holder on a cheque to the Condominium;

The judge wrote:
"The Plaintiff did a service to the Condominium in pointing out irregularities. One would think that the Condominium would want to look into these. Even if they did not amount to grounds for setting aside the election, the Condominium clearly had an interest in preventing irregularities in the future and attempting to determine responsibility for any forged proxies. On the evidence I have, the Condominium did nothing to address the concerns raised by the Plaintiff."

What's more, the board was upset that Paul Wu and others were going door to door seeking evidence of proxy fraud at the AGM.

On this Justice Sproat wrote:
"The Condominium did take what I think was a high-handed approach to dealing with the Plaintiff. The Plaintiff and like-minded owners canvassed other owners seeking to obtain evidence relevant to the action.

The Condominium took the position that this breached its declaration as it amounted to conduct which obstructed, interfered with, injured or annoyed other owners.

The Plaintiff was warned that if he did not agree in writing to desist, the matter would be referred to the solicitors for the Condominium. Effectively, the Plaintiff was threatened with legal action. Time spent in this regard is not reasonable as costs of the action."

The corporation claims $77,497 for fees, disbursements and HST on a substantial indemnity basis. The corporation had three alw firms working on this action.

Innocent victims
The judge wrote:
"I take no issue with the caselaw holding that a condominium corporation should ordinarily be awarded substantial indemnity costs when it brings enforcement applications as to order otherwise would burden the innocent unit owners who comply with their obligations. I do agree with Mr. Savas that this rationale loses much of its force when the litigation involves unit owners attempting to ensure the integrity of the electoral process of the Condominium."

The judge wrote:
... the Condominium should have taken the Plaintiff’s complaints seriously and to the extent possible addressed them."

The judge cut away at the Respondent's $77,497 costs, (how he calculated this is worth reading), until they equaled $6,325, the same amount he awarded the Plaintiff. So both sides end up paying their own costs.

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