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#18993
Judge STRIPS UNIT OWNERSHIP for 3RD PARTY LITIGATION COSTS YCC 187 v Sandhu 2019/08/23 19:53  
Again not legal advice.

In 2017 ( northend Toronto residential condo unit owner ) Mrs Sandhu’s tenant alone - in NO WAY ON BEHALF OF, NOR AUTHORIZED BY, NOR ACCOMPANIED BY the unit owner Sandhu herself - sued the condo corporation unsuccessfully for $ 5 M.

Unit owner Sandhu - incredibly also self-represented ! - has just been judicially stripped of ownership of the unit for refusing to pay the corporation's defence costs cited as charged back largely pursuant to an unquoted indemnity BY-LAW !

Why ? How ?

The self-represented tenant’s 2017 beefs – disparaged but technically UNTESTED by judicial process due to pre-empting for lack of “standing” as a “( mere ) tenant” - against the condo corp., get superficially summarized.

They include alleged assault by a condo staff member.

The self-represented tenant somehow managed to get his own beefs channelled - & arguably dead-ended - into condo law claims within the condo law universe.

There both sections 134 Compliance Order and potentially section 135 Oppression remedy, would have been totally barred to tenant plaintiffs. At least the alleged assault would not automatically have required a condo law treatment.

1 - TENANT v Y.C.C. # 187 ( 2017 )

Noteworthy & arguably un-grasped ( ! ) ABOUT the Ontario Condominium Act 1998 ‘s SECTION 134 Compliance Order remedy, is that downloading “additional Order-obtaining costs” lienably onto a unit, is NOT AVAILABLE directly under the Act unless the plaintiff is the condo corporation .

To get support safely from the Act itself, the condo corporation arguably has to obtain a compliance order, not merely block a plaintiff's lawsuit. ( Act revisions will share the option against corporations )

And that as plaintiff the condo corporation had to prevail. None of that literally happened in 2017, where the appeal judgment at canlii.org & here, shows that the tenant alone had been the plaintiff. Remember him being gate-kept solitary at the doorway ?

The tenant totally lacked owner Sandhu’s s authorization, nor any standing at all to sue under the Condominium Act 1998 – for example under either sections 134 nor 135.

But here based on a mere By-LAW and the Act's section 134(5) , unit-stripping to enforce the condo lien now above $ 86 K , thus “additional costs to obtain” , arguably looks like a shaky basis for any liening of owner Sandhu's unit out from under her. Noteworthy are the section 134 (5) discussions throughout the judgment interlaced with the by-law.

Drastic remedy. Sorta shaky underpinings.

2 - Y.C.C. # 187 v owner Sandhu 2019

Flash forward to the August 14 2019 unit-stripping Order against owner Sandhu.

It ostensibly is rested centrally on a CONDO LIEN merely asserting a BYLAW-DERIVED RIGHT claiming legality to ACTUALLY CONVERT TOTALLY THIRD PARTY LITIGATION DEFENCE COSTS - the condo corporation’s against the tenant - into unit-targetting common expenses.

As if owner Sandhu had not only been ( vicariously ? ) a 2017 litigant but a defendant against whom a phantom Compliance Order had been awarded to the Condo Corporation.

The Lien appears to secure more than $ 86 K in defence costs generated in the third party litigation defended against the tenant in 2017.

It is unclear if such secures the $ 16 K lawfully awarded against the tenant litigant ( solely ) in lower & appeal court levels.

3 - Does or can a MERE By-law lawfully empower LIENING - against an arguably non-blameworthy unit owner - DEFENCE COSTS INCURRED AS DEFENDANT AGAINST third party plaintiffs like the tenant in 2017 ?

Is it illegally or dubiously re-circulating costs that attach only to the litigant plaintiff ?

Would an N5 as landlord have effectively pre-empted the tenant's right to sue in 2017 ? Would such have even been legal or in the public interest ?

Further, would liening have any validity at all if - for example - the tenant had unsuccessfully sued for something like defamation ? or sought an award for assault as alleged against the employee ?

Or for a Human Rights Code beef ?

Or for anyone's common element injury under Ontario’s Occupiers Liability ? Or for an owner's non-resident visitor or trades-person suing for injury on the common elements ?

Should non-participating unit owners suck up those defence costs ?

4 - What sort of scrutiny did the by-law & unit-stripping justifications, get here ?

Xcrpt :

“ . . . . [21] YCC 187’s argument that the lien was valid involves several legal and factual steps:
. . .
b. Courts have ruled that the by-laws and declarations of a condominium should be strictly enforced in order that unit holders will recognize consistency and certainty in the application of the rules.

c. It is not the function of courts to review the by-laws of a condominium to decide whether they are fair or not.

Courts must enforce the by-laws unless they are clearly unreasonable or contrary to the Condominium Act.

d. YCC 187 passed By-Law No. 4 in 2007. Article 14 of that by-law states that each unit owner must reimburse the Corporation for any loss which is caused by the unit owner or any resident or tenant in the owner’s unit.

Article 14 specifically refers to the corporation’s legal costs as one type of loss which must be repaid by the unit owner.

. . . h. ( sic ) Section 134(5) of the Condominium Act states that if a corporation obtains a costs order against either an owner or an occupant of a condominium unit, the costs of the litigation must be added to the common expenses for that unit. ( sic )

Article 14 of YCC 187’s By-Law No. 4 says the same thing.

The Condominium Act required Justice Penny to order that the costs be added to the common expenses of Ms. Sandhu’s unit despite the fact that she had not authorized Mr. Saadilla to file the lawsuit.

i. Mr. Saadilla appealed to the Court of Appeal.

On October 19, 2017, the Court upheld Justice Penny’s decision.

The Court of Appeal agreed that Mr. Saadilla could not sue the corporation because he did not have Ms. Sandhu’s authorization. The Court ordered an additional $8,500 in costs.

( sic ) Although that order did not specify that the costs should be charged against Ms. Sandhu’s unit, that was the inevitably ( sic ) outcome as the result of section 134(5) of the Condominium Act. ( sic )

[22] Ms. Sandhu has not challenged the legal validity of these steps and, in my view, there is no basis to challenge them.

( condo corporation’s counsel) . . . has carefully set out the authority for each of his arguments in the Factum of the Plaintiff

I have reviewed those authorities and I find that they do support his arguments.

. . . . [35] Ms. Sandhu states in her affidavit that she was never in a lawsuit with YCC 187 and never incurred any common expenses or legal fees. She submits that the court should invoke principles of fundamental justice to prevent an injustice which has arisen from the unauthorized actions of her tenant. . . pressed this point in her oral submissions, asking rhetorically ‘if he had killed someone, would she be responsible for that?’

[36] (sic ) The simple answer to the questions raised by the Sandhu family is that section 134(5) of the Condominium Act makes the unit owner responsible for the financial consequences of her tenant’s actions.

If a corporation is awarded costs in an order which is made against an owner or an occupier of a unit, the costs, including the legal fees of the corporation, are added to the common expenses of the unit.

That is simply the law of Ontario. . . .” ( sic ) - unquote

Y.C.C. # 187 v Sandhu 2019 ONSC 4779 issued Aug 14/19 http://canlii.ca/t/j1z91

2017 - tenant v YCC # 187 :

Saadilla v. Y. C. C # 187, 2017 ONCA 797 issued Oct 19/17 http://canlii.ca/t/h6pqk There is zero reference at ONCA at all to s 134(5) .

Not at canlii.org : Motions Order of ONSC Mr Justice M.A Penny Jan 13/17
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#18994
Re:Judge STRIPS UNIT OWNERSHIP for 3RD PARTY LITIGATION COSTS YCC 187 v Sandhu 2019/08/23 21:04  


"[36] The simple answer to the questions raised by the Sandhu family is that section 134(5) of the Condominium Act makes the unit owner responsible for the financial consequences of her tenant’s actions.

If a corporation is awarded costs in an order which is made against an owner or an occupier of a unit, the costs, including the legal fees of the corporation, are added to the common expenses of the unit.

That is simply the law of Ontario. ...."

Was that what occurred in 2017 at date of tenant's loss and charge-back liening ? Not legal advice.


From section 134 Condominium Act 1998 c 19 at date :


"Compliance Order

Addition to common expenses

134(5) If a corporation obtains an award of damages or costs in an order made against an owner or occupier of a unit, the damages or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses for the unit and the corporation may specify a time for payment by the owner of the unit. 1998, c. 19, s. 134 (5).. . ."
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#18996
Judge STRIPS UNIT OWNERSHIP for 3RD PARTY LITIGATION COSTS YCC 187 v Sandhu 2019/09/03 09:36  
One may ask "So what's the big deal ? "

1 - Actually stripping an owner of ownership, may get some press attention albeit only in year 2 of the current Ford administration.

2 - Ontario's courts had addressed lien abuse in some decisions albeit on grounds claimed wider than the Condominium Act 1998, specifically for so-called "charge backs" for "indemnification" derived somehow from site-specific governance documents arguably warned to unit buyers before purchase.

BUT see : judicial allowance for ( mere ) Declaration-supported charge backs. AND SUCH had to be worded unambiguously ( see liens struck down in Pearson 2012 and Wexler 2017 below).

Shockingly the 2019 Sandhu unit stripping appears supported by only by an arguably shaky view of the Condo Act 1998 's section 134 ( 5 ) and by a mere "by-law" - unquoted even !

3 - Lien abuse complaints did get at least nominal attention during Ontario's Condominium Act review & variously awaiting implementation.

But who spoke for condo owners / property owners rights and how clearly ? One influential in-putter for example appears to have believed that "charge-backing" beyond the specific Act itself, was lawful if done infrequently and only against bad dudes doing bad stuff !

Anyway how much concern was really listened to ?

Apparently awaiting degrees of implementation, Act changes to better legitimize so called "charge-backs" will apparently require :

a sufficient DECLARATION-contained support ( s 7 (4 ),

a VERY VERY BRIEF appeal remedy s 84

and

a (revised ) Lien Form if anyone can find it.

Is that all ?

4 - Where at all does the revised Act look to introduce empowering merely BY-LAWED liening / "CHARGE BACKS" ? ?

Much less for costs to defend against an arms-length tenant judicial attempt ?

5 - Not legal advice.

Will stripping an Ontario unit ownership, get press or judicial attention in Ontario ?


Pearson v Carleton C.C. # 178 2012 ONSC 3300 issued June 4/12 http://canlii.ca/t/frnch

Wexler v Carleton CC # 28 2017 ONSC 5697 http://canlii.ca/t/h6g9f
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