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#19033
LIEN ABUSE gets oppression remedy : AMLANI v Y.C.C. # 473 2020/01/20 18:59  
Again not a legal opinion. This topic is under construction.

A Toronto judge has issued an OPPRESSION finding against a condo corporation for getting caught carrying out the sort of widespread abuse of the CONDO LIEN REMEDY substantially ignored or shockingly somewhat facilitated by the Act-reform outcomes.

Without a prior express legislative platform such as the Ontario Condominium Act 1998's sections 92, 98, 105 or 134, the abuse loaded more than $ 25 K in buckshee, unit-specific, merely Declaration created "chargebacks" or so-called "indemnifications" onto the title to the victim's unit. ( Some would argue they actually are fines. Or that they bizarrely even defy the hierarchy of jurisdiction topped by legislature & the courts ! Or that the practice is at best dubious hardball compliance somehow claimed legal for one private civil disputant to punish another ! )

Then the lieners moved to sell the unit out from under the victim.

The "chargebacks" were derived from civil demand letters from the corporation's lawyers - instead of self-help vigilante remedies like just shooting a Rule-defying dog.

Or instead of such as actually demolishing the home of an alleged property standards defier & billing the victim by $ 80 K unit-specific chargeback on the basis of a mere grass-cutting by-law ( as one owners association got caught doing in Texas ).

Its the familiar ole' scenario ( often from site-specific voodoo documents ) that induced some U.S. states to cap such chargebacks at $ 1 K , to require due process protocols instead of voodoo, and to illegalize mortgage-like remedies executed without lawful judicial oversight.

Some will also argue "Don't worry about it ! No big deal ! . . that these chargebacks WILL BE skated onside by still non-implemented Condo Act reforms that impose a VERY tight timeframe on victims to challenge arguable lien abuse. That arguably the CHANGES WILL SHELTER the chargebacks. )

During the former Provincial government's "consultation process" one wonders what some so-called consumer inputters understood or may have contributed to the Act changes still not implemented ( ? whether : "Don't worry about the law. Voodoo chargebacks are OK if only done against bad dudes & not very often . . . " )

Winning co-counsel ROD ESCAYOLA LLB ( partner Gowlings WLG Ottawa with associate David Plotkin ) has issued the first article about what could become a leading property & civil rights decision with application beyond mere condo disputes.

Mr Escayola's article links to a pdf of the Jan 13/20 Order not yet reported in the public domain at canlii.org. https://www.canlii.org/en/on/

Amlani v. Y.C.C. # 473, 2020 ONSC 194 issued Jan 13 2020

The article is :

Jan 14/20 “Condos Cannot Lien the Cost of Seeking Compliance” by Rod Escayola LLB partner Gowling WLG Ottawa http://condoadviser.ca/2020/01/condos-cannot-lien-the-cost-of-seeking-compliance/condo-law-blog- Ontario
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#19034
LIEN ABUSE gets oppression remedy : AMLANI v Y.C.C. # 473 2020/01/23 09:57  
1 - Amidst attention a 3rd article has appeared about this potentially landmark victory for consumer & civil rights :

Jan 22 /12 “Condos Must Act Reasonably When Seeking Compliance “ by winning co-counsel David Plotkin ( Associate - Gowling WLG ) http://condoadviser.ca/2020/01/condos-must-act-reasonably-when-seeking-compliance/condo-law-blog- Ontario


2 - belatedly ( ? ) this important decision is now online in the public domain at canlii.org :


http://canlii.ca/t/j4rrl
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#19036
Is "carte blanche" smart for charge-backing by shared ownership groups ? ( AMLANI v Y.C.C. # 473 ) 2020/01/28 12:22  
and ultimately is it even sorta like share-cropping where a jurisdiction tolerates mere Declaration-platformed "indemnifications" / "chargebacks" ? ( low but steady flow of income to lawfirms or managers with minimal effort; most may capitulate but defiant scofflaws might even generate lots of litigation billings . . .)

And set in motion merely by $ 500 - $ 800 word-processed civil demand letter - possibly assembly-lined with minimal if any legal oversight . . . ?

A little too tempting ( ? ) to defray overhead & maybe even transition into profitable title slander warfare ?

Imagine done merrily by self-managed D.I.Y. condo or Building Scheme volunteers who decide what factuals merit some financial punishment & title-whacking . . . . You oughta hear some of what I hear from well-intentioned volunteers in the Building Scheme universe

Even the issues where done correctly by management companies ( commented May 11/17 "Lien registration is lawyers’ work” by C. Jaglowitz LLB https://www.ontariocondolaw.com/2017/05/articles/case-studies/lien-registration-is-lawyers-work/ )

Is this where Ontario should head ? :

Dec 7/19 KHOU- 11 "HOA sues retired Texas City couple for up to $100,000 for flower beds that don’t meet guidelines" ) not high enough to mask foundation lines https://www.khou.com/article/news/local/hoa-sues-retired-texas-city-couple-for-up-to-100000-for- flower-beds-that-dont-meet-guidelines/285-8552da47-1c4b-45b3-b719-58c36560ab2d

. . . cited with some others where it arguably got wildly out of control :

Dec 11/19 “Time to end predatory HOA lawsuits and foreclosures” by Debora Goonan “Independent American Communities” https://independentamericancommunities.com/2019/12/11/time-to-end-predatory-hoa-lawsuits-and- foreclosures/
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#19073
wagons circling : LIEN ABUSE got oppression remedy - AMLANI v Y.C.C. # 473 2020/05/10 17:47  
Some aftermaths continue :

lots of lawyers shrieking & attempt to quarantine or neuter the Amlani decision, which LawTimes article ( below ) quotes corporation’s counsel has been instructed to appeal.

Reactions look reminiscent of some of the U.S. aftermaths after U.S. abuses occasionally get overturned :

eg trying to totally avoid the BIGGER ISSUE whether chargebacks are lawful unless expressly platformed within the Condo Act & Regs. ( eg Should voodoo site-specific governance documents dare be allowed to trump the legislated limits on the powers of these sorts of organizations ? )

Or trying to lay it on wording of the specific governance document.

Or on balance of fairness between disputants’ behaviours.

Or “Don’t worry. Eventually it WILL BECOME legal !”

April 1 2020 LAW TIMES “Selling your condo — to pay neighbours’ legal fees ?” by Anita Balakrishnan https://www.lawtimesnews.com/practice-areas/real-estate/selling-your-condo-to-pay-neighbours-legal- fees/328202
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#19090
Divisonal Court to hear appeal June 26/20 ( LIEN ABUSE gets oppression remedy: AMLANI v YCC 473 ) 2020/06/15 20:20  
What may be Ontario's most important condo decision of 2020, will get a ZOOM hearing by a Divisional Court panel on JUNE 26 2020.

York C.C. # 473 v Amlani 2020 ONSC 3700 issued June 12/20 http://canlii.ca/t/j88p8
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#19095
Oblique references to UPCOMING : lesson from B.C. strata ordered to disgorge DAMAGE CHARGEBACKS 2020/06/29 10:48  
Not legal advice, as usual.

An undated unattributed article bearing the masthead of a well-known condo specialist lawfirm, has recently appeared & arguably refers to the awaited outcome of the AMLANI decision.

That article urges "reasonableness" & compliance with law & legal counsel. It appeared June 19/20 at the Canada section of the large U.S. site Community Associations Network. It's now at the firm's website as entitled " Lessons for board members from BC decision"

Anyway that article & the cited year-old B.C. adjudication, are well worth reading.

From Ontario of course there has been no shortage of lien & charge-back abuse material long before AMLANI. There probably were such shenanigans in some Ontario Building Schemes long before Ontario's 1967 condo legislation

Lots of others' comments at cafcor about charge-backs appeared here long before mine.

In perspective most of the abuses usually do not rise to the level of lawlessness of the Texas HOA homeowners association that the Texas Court of Appeal found unlawfully demolished a home & billed the owners $ 80 K ! ( U.S.) ! ( the HOA's authority ? : a mere grass-cutiing & debris pickup by-law. . How reasonable was that ? )

NOR to the level of the R.I.C.O. rackets that used straw Directors at numerous sites to inflate & skim Las Vegas condo contracts until the F.B.I intervened, triggering a lawyer suicide & jail sentences for many.( the Nevada item was a specific past topic here by R.F.)

BUT Amlani got a lot of attention, howsoever its outcome will be. And howsoever much fear & loathing it has generated . . .

From whomever's recent article, the B.C. ( garage door ) chargeback decision of June 2019, is at Cafcor's Out of Province Forum with other occasionally lurid stuff . . . ( “B.C tribunal VOIDS FINE charged back after PARKADE DAMAGE ruled due to tenant & STRATA COUNCIL” https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=11&id=19096#19096 )

Ontario's court of appeal arguably MAY be answering the good ole' question posed so often in American condo or Building Scheme / HOA homeowner association wars :

Is it OK to break the law if such illegality isn't "too often" ? Or is only unleashed against those whom governancers divinely think deserves such by some annoying challenge or inconvenient objection ? Or against "bad dudes ?"


June 19 2020 at CANADA section of U.S. site https://communityassociations.net/owners-strata-houtstra/ by whomever & whenever ? : “The Owners, Strata Plan KAS 2503 v. Houtstra et al (2019 BCCRT 690)” https://mailchi.mp/631571e7b43e/lessons-for-board-members-from-bc-decision ( addendum : now entitled "Lessons for board members from BC decision" )
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#19112
COSTS & scolding : LIEN ABUSE gets oppression remedy - AMLANI v Y.C.C. # 473 2020/07/22 19:46  
( a costs award belatedly & lowkey at canlii.org.)

An owner was targetted by civil demand letters lacking legislative platform.

The condo corporation moved to strip him of ownership for those demand letters.

Mere "unreasonableness" looks far from the most disturbing aspect.

Will the aftermath get downplayed or distorted like U.S. style HOA shenanigans ?

Xccrpt Amlani v York C.C. # 473 2020 ONSC 1190 issued Feb 25/20 http://canlii.ca/t/j8l4c

“ . . . [5] Second, the respondent submits that it should not be required to reimburse the applicants for the cost of their lawyers travel to and from Ottawa or their accommodation costs in Toronto.

[6] The applicants are entitled to make reasonable choices about their counsel. The counsel they chose were specialists in condominium law. They practice out of Ottawa.

. . . . [9] In addition, elevated cost awards are appropriate where the unsuccessful party has engaged in conduct that is worthy of sanction through an elevated cost award . . .

[10] In my view, the respondent’s conduct in this matter is worthy of sanction through an elevated cost award.


The sanction-worthy conduct of the respondent is discussed throughout my reasons.

I cite only a few examples here. There were practical and economical solutions to the problems at hand.

Those solutions had been used in the past and had worked. They are, however, solutions that may require maintenance from time to time. Instead of exploring those solutions and perhaps enhancing those that had been used in the past, the respondent embarked on costly aggressive litigation.

In doing so not only did it act unreasonably; it also breached its own constating documents which require negotiation and mediation. The respondent refused to meet with the applicant to discuss the issue. When the applicant formally demanded mediation, the respondent unilaterally appointed a mediator and a mediation date only to leave the mediation early for another appointment.

In a nutshell, the entire proceeding could have been avoided had the respondent acted reasonably.

[11] In my view, it is worthwhile to send a message to both condominium corporations and condominium residents that there are often easy, cost-effective solutions that are far preferable to litigation.

Parties who ignore cost-effective solutions in favour of litigation must pay the price if they fail in the litigation.

[12] In light of the foregoing, I award the applicants costs which I fix in the amount of $83,340 after taking into account the adjustment referred to in paragraph 4 above.” – ONSC Feb 2020

Amlani v York C.C. # 473 2020 ONSC 1190 issued Feb 25/20 http://canlii.ca/t/j8l4c
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#19113
merely anecdotal : reportedly ALMOST A MONTH AGO AMLANI decision upheld on appeal 2020/07/22 20:11  
CCI members are reported to have been notified by a respected Toronto lawfirm's update dated July 21 2020, that the AMLANI oppression judgment has been upheld on appeal.

For whatever reason again ( ? ) as with the original SEVEN ( 7 ) months ago long before any COVID-19 disruptions, the appeal decision's release has been delayed.

Anyway, CCI members were advised that on June 26 2020 the appeal against the January 2020 Amlani decision had been heard AND REJECTED by a Divisional Court panel.

Further appeals are always possible, and the report may be incorrect. But . . .

With greatest respect it may be a good idea for some Ontario condo governancers to start looking at the text of Ontario's Condominium Act 1998 . . .

ASK : about the Amlani decisions what will be the grounds ?
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#19116
Amlani's counsel : DIVISIONAL COURT PANEL on June 26/20 HAD UPHELD AMLANI v Y.C.C. # 473 2020/08/06 21:58  
Although all-important "reasons" are not yet released, winning counsel's article has just disclosed low key that the huge AMLANI decision was upheld by the Divisional Court panel at its June 26/20 Hearing !

Aug 6/20 R Escayola LLB Gowling WLG : “ Condos Must Act Reasonably or Face Litigation Cost” http://condoadviser.ca/2020/08/condos-must-act-reasonably-or-face-litigation-cost/condo-law-blog- Ontario
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