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#18099
Orr(Rainville)v MTCC #1056 – buckshee attic punishes CONDO CORP certifier & legal diligencers 2014/12/15 02:47  
( The initial 2011 CAFCOR item by Richard Forster was at General Forum “Sometimes In Litigation - Nobody Wins” at http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=12228&catid=2#12228. Comments end after Mme Justice Wilson’s 2011 trial decision, just now substantially gutted by ONCA )


A Dec 2/14 decision by ONCA the Ontario Court of Appeal, has reprieved from a 2011 restoration & surrender order, a Grand Harbour (southeast Etobicoke waterfront) townhouse unit’s buckshee attic.

The disputed 862.2 ft2 attic trespass was a co-Declarant/initial President’s illegal conversion of common element space into a 3rd floor attic living space with skylights, furnace etc . It may have been 'framed in' concurrently with - or just before - the 1993 registration of Declaration but deliberately never documented within such. Not even a building permit much less a condo document alteration.

At trial ( ! ! 43 days !! ) the PMC (which prepared & signed estoppelling Certificates as MTCC #1056 ‘s agent) ADMITTED seeing the tell-tale skylight/window exterior indicators of the buckshee attic. This was NOT some hidden illegal installation nor removal of indoor structural wall. ( It will be held to have worded the Certificate to declare 'no violation' but did not inspect physically despite noticing the buckshee attic externally. )

The buckshee attic violation was thus totally undisclosed (as a Declaration violation) to the 1997 new purchaser Orr (Rainville) in the PMC’s 1997 ( estoppelling then Form 18 ) Certificate. It was also undetected/unactioned amidst cursory pre-purchase diligence by her lawfirm which did not show her "elevation view"( despite the red flag mention in the realtoring package ).

One important aspect is looming larger now :

The PMC's 1997 (estoppelling) Form 18 Certificate had been expanded beyond merely the ambiguous para 6 (now similar to current Form 13's para 12 & new specific s98 disclosure in para 23).

The 1997 Certificate had been expanded to declare : "... There are no[t] continuing violations of the declaration, by-laws and/or rules of the Corporation, apart from any involving assessment obligations for which the current unit owner is responsible and the status of which is disclosed in paragraph 1 of this certificate."(sic)


The buckshee attic’s illegal status was actually uncovered/disclosed only by an ENGINEER a month later on the verge of $ 700,000 worth of unit renovations including to the common element above the legal unit boundary. ( Not by the various non-realtor 'diligencers', but had been cited as a purely 'physical' scenario within the realty package that would have triggered almost every buyer's legal file in that period).

Transferee Orr (Rainville) however kept on renovating during the initial years of the ensuing 16 and a half year legal struggle by the condo corporation to reverse the Declaration-violating trespass. She is mentioned to have refused an offer of a lease ( or presumably later a section 98 C.E.M.A). The ensuing dispute straddles the prior 1990 & current 1998 Condominium Acts.

In 2011 after a 43 day trial estimated by ToStar’s realty lawyer Bob Aaron to have generated several million dollars in billings, Orr(Rainville)'s negligence claims about the deficient (estoppelling) Certificate were struck down against MTCC #1056 and its now-highprofile agent PMC as preparer & signer.

Orr (Rainville) was then ordered to sever unit access to the attic, to direct $300,000 in recovered awards to MTCC #1056 to restore the disputed common element space space to pre-occupancy condition, and even to pay occupancy charges for her own past usage !

Orr(Rainville) would be stripped of the attic. Certificate would be : "What me worry ?"

However Orr (Rainville)’s professional negligence claims against her former unit purchase lawyer did succeed in partial financial offset.

The parties appealed ( including Orr (Rainville)’s highprofile lawfirm facing an estimated $900,000 in adverse awards) . . . . .


On Dec 2 2014 an ONCA Appeal Court panel decision eviscerated the 2011 lower court’s handling of the (estoppelling) Certificate.

The deficient (estoppelling) Certificate was instead ruled to have been a “negligent misstatement” or misrepresentation within contemplation of the conjunctive criteria in Queen v Cognos Inc (1993) Supreme Court of Canada.

And ONCA further bound MTCC #1056 to its agent PMC’s deficient Certificate – regardless of contracted indemnification& disclaimers etc - that negligently failed to cite the illegal, physically visible, trespass in violation of the Declaration Schedule C & survey sheets.


ONCA further held both MTCC #1056 and Orr(Rainville)’s former lawfirm jointly and severally liable for the differential in the unit’s resale value at judgment date between appraised market value comparatively of sales alternatively with and without ownership / exclusive usage of the attic.

Will Orr(Rainville) now get to keep the buckshee attic, now ruled to have actually been estoppelled and relied on to her detriment ?

Although neither the 2011 nor 2014 judgments actually order MTCC #1056 to issue a section 98 C.E.M.A. nor order a Declaration amendment, ONCA’s evisceration of the 2011 judgment adds more financial inducement to MTCC #1056 to do so to reduce its exposure to Orr(Rainville)’s awards. If they s98 the attic, there will be no differential to pay. But might they just leave the whole mess in limbo ?

An appeal by Orr(Rainville)'s former lawfirm might not surprise.

Looking wider , what realtor would dare list it if contiguous visible apparent living space is not legally part of a transfer package ? Is it another bizarre standoff from the Twilight Zone ?

And does any judge dare grease the slippery slope for other buckshee trespassers to congest the courts ?

**
Comments about ONCA’s implications for lawyers & Status Certificate preparers, are among Bob Aaron LLB’s Dec 13/14 ToStar’s realty law column. He had testified as expert witness for Orr(Rainville).

Orr v MTCC # 1056 2014 ONCA 855 issued Dec 12 2014 http://canlii.ca/t/gfgt3

NOT YET ONLINE : Sat Dec 13 2014 ToStar Bob Aaron LLB -
print edition article is entitled "Courts support full disclosure in condo status"
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#18102
Orr(Rainville)v MTCC #1056 – buckshee attic punishes CONDO CORP certifier & legal diligencers 2014/12/15 21:18  
Not discussed above is whether the judiciary has the power to order the amendment of a registered plan or description.

In a non-condo judgment (with similarities to 2 others) in 2013 the Court of Appeal applied an EXTREMELY loose definition of "Mistake" to allow certain non-condo trespassers to trump monumented survey boundaries.

ONCA thus answered questions about whether survey boundaries are exclusively as agreed by parties/surveyed by OLS/registered in LTO ie is the process off limits to the judiciary ?

The circumstances of the alleged developer error in that 2013 non-condo, judicial powers decision, were closer to Declarant Weldon's shenanigans in Orr ( Rainville) than any kind of genuine "mistake".

That controversial outcome hails from the older, wilder, whackier world of "Building Schemes" - from my own world.

Its further 2013 appeal was declined by Canada's Supreme Court. ( Bob Aaron and certain realty law specialists of the OBA have kicked that one around big time. )
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#18103
Orr(Rainville)v MTCC #1056 – buckshee attic punishes CONDO CORP certifier & legal diligencers 2014/12/16 03:56  
Major U.S. website (for condos & HOAs/POAs) now links to ToStar's online Bob Aaron LLB article about this ONCA appeal decision. (re-titled)

"Condo corporations must tread carefully on status certificates.Ontario Court of Appeal ruling affirms due diligence necessary when providing information to condo buyers.”

http://www.thestar.com/life/homes/2014/12/15/ condo_corporations_must_tread_carefully_on_status_certificates.html
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#18104
Re:Orr(Rainville)v MTCC #1056 – buckshee attic punishes CONDO CORP certifier & legal diligencers 2014/12/16 21:48  
And so begin to appear numerous articles about this :

( ? unattributed Dec 8/14; focusses

NOT on the Declarant dominance shenanigans – 4 years of Teflon coating as President, untouched by his sweetheart First BoD nor presumably by predecessor PMC 1993-97, concluded by sale of unit with externally visible buckshee attic to unwitting buyer,

NOT on assembly line legal service to that unwitting buyer

but DOES FOCUS on the avoidable vulnerability of PMC Brookfield’s risk-expanded Form 18 under 1990 Act )


Miller Thomson LLP Dec 8/14 Bulletin “Important Decision of the Court of Appeal: Immediate Implications for Managers and Boards” http://www.millerthomson.com/en/publications/newsletters/mtcondolaw-ontario/december-8-2014- bulletin/important-decision-of-the-court-of-appeal ( no attribution)
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#18106
Re:Orr(Rainville)v MTCC #1056 – buckshee attic punishes CONDO CORP certifier & legal diligencers 2014/12/20 10:13  
And 2 more from Jim Davidson LLB Nelligan O'Brien Payne

J Davidson LLB Dec 18/14 “Orr / Rainville v. MTCC 1056 and Gowlings - Court of Appeal Decision Arrives” (summary and comments)

http://www.nelligan.ca/e/orrrainvillevmtcc1056andgowlingscourtofappealdecisionarrives.cfm J Davidson: "This is one of the more important decisions in Ontario condominium law over the past decade. ... "

A blogged shorter version is "Status Certificates - The Rainville Decision" at http://www.condolawnews.ca/e/status-certificates-the-rainville-decision.cfm
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#18107
WHERE ARE CONSUMERS AND PROPERTY RIGHTS IN ALL THIS ? 2014/12/20 11:11  
With respect to the professional commenters, slipping between the cracks again is the wider consumer rights issue :

Given the disturbingly wide range of skillset limits of professionals & self-managed condo & HOA Boards alike;

. . .and given that owners prefer the cheapest management /cheapest legal level of services to depress shortest term expenses, what should the Legislature require of estoppelling documents ? Should there even be such ? They don't even exist in the parallel universe of Ontario HOAs/POAs like mine.


One option : maybe it should be NOTHING CERTIFIED AT ALL. Maybe prospective buyers & other researchers ( eg customer trolling rival PMCs ) should assume risks and costs. Maybe these people should be hiring paralegals to do the professional diligence at $ 125 per hour ? True, "doors will be closed", and reliance would have to be substantially on vendor honesty and competence ( and including receipts/documentary records of the vendor holding in hand a one way plane ticket to Bangladesh beyond extradition . ) A return to centuries ago ? Potential lenders going nuts ? Maybe lending being totally refused ? Litigation lawyers dancing for joy ?


OR INSTEAD MAYBE - funded or not by highly controversial RE-TRANSFER fees as in many U.S. condos/HOA jurisdictions - at the other extreme "professionally managed" or "self managed" Boards should be legislated an ACTUAL DUTY TO INSPECT and DECLARE and be bound by all but the most latent unknown breaches . . .

( Unit re-transfer fees in USA are VERY WIDELY criticized. Some states have totally banned them. But in Ontario decades of $35 certificates became 15 years of $100 Reg-prescribed fees ! Or should the Certificate prices be seen as irrelevant to the 'service levels'/ consumer & lender protection issues ? )

For consumers/owners, is the bigger problem really incompetence, cheapskate budgets, rogue Declarants unchecked by sweetheart First Boards of Directors, assembly-line professionalism . . . ?

Should the legislature allow this to continue IF it is big stuff or at least widespread today ? Maybe it isn't a big enough deal other than to victims ?
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#18108
Re:Orr(Rainville)v MTCC #1056 – buckshee attic punishes CONDO CORP certifier & legal diligencers 2014/12/30 14:09  
A surveyor oriented realty blog has now published what it claims to depict as / labels as a 'Depiction' of, Orr(Rainville)'s unit 113 , but showing the buckshee windows as being filled in ? ! ?:


http://4pointlearning.ca/4PL/TheBoundaryPoint_vol3%281%29.pdf
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#18119
one lawyer's biggest of 2014: buckshee attic from Hell - Orr(Rainville)v MTCC #1056 2015/01/28 10:34  
Chosen as lawyer Chris Jaglowitz' top judgment of 2014 ( repeating from 2011) GMA Gardiner Miller Arnold LLP

http://www.ontariocondolaw.com/2015/01/articles/case-studies/top-10-condo-law-cases-of-2014/#more- 1946
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#18655
IF buckshee attic goes. MTCC 1056 's owners will suck up another $ 465 K plus restoration 2016/12/27 20:25  
At the NINETEEN YEAR mark of a giant mishigas ( ) , Madam Justice Darla A. Wilson has decreed a valuation of $ 465 K as what appears to be the compensation payable to owner Orr ( Rainville ) by MTCC #1056 IF - IF - it elects to move to dismantle the ex-Declarant's voodoo attic.

IF & when such dismantling is sought, presumably all condo owners will also fund the physical restoration to common element of the ex-Declarant's illegal attic.

Ever try to sell or appraise such a scenario ? This crossroads will be totally separate from the giant sucking sound of legal costs & disbursements past & future here . . .

The summarized background :

1- In 1998 only an engineer amidst renovations noticed that new owner Orr ( Rainville )'s 3rd floor townhouse ATTIC was buckshee. The declaration boundary ended at her 2nd floor. But a gable was visible. Who cared ?

The visibly gabled attic had been illegally constructed by a Declarant during pre-turnover Declaration control.

Amidst a gob-smacking vacuum of professional incompetence of others, new owner Orr ( Rainville ) then fatefully elected to soldier ahead with renovating the attic & other components . . .

2 . . . . Nineteen years later with more than $2 M estimated in everyone's legal fees, a process directed by the Court of Appeal has culminated in this formula above .

Not surprisingly there appears to be no deadline for MTCC # 1056 to chose its own poison.

The expert appraisals process faced by Madam justice Wilson is best left undetailed . . .


3 Dec 9/16 Orr v MTCC 1056, 2016 ONSC 7630 http://canlii.ca/t/gw54m ( Superior Court)

This recent evaluation proceeds from Court of Appeal supplementary “Orr v MTCC # 1056 2016 ONCA 407“ issued June 8 2015 http://canlii.ca/t/gjfpj Lauwers J.A.:

[19] . . .. The close up costs of the third floor are MTCC 1056’s responsibility to incur or to avoid.

The appellant was awarded the difference in the value between a two-storey and a three-storey unit.

The fact that she spent money converting a two-storey unit into a three-storey unit will only be compensated, if at all, in the notional sale price of the townhouse as a three-storey unit; that is the fair measure of her damages.

She is not entitled to separate compensation for expenditures on the decorating and renovation of the third floor; these were a matter of personal taste which the market may not value in the sale price of the unit. Therefore, no references are necessary. ..”
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#18657
is it ALMOST BACK TO SQUARE ONE ? Orr ( Rainville ) v MTCC #1056 2016/12/30 12:44  
In case anyone missed the significance, Ms Orr(Rainville) is left ironically ALMOST back in her position as of Jan 1998 as buyer of a Declarant's townhouse with illegal buckshee attic trespassing visibly into the common element above her unit boundary.

Selling such a legally burdened unit would be complex, much less credibly appraising it as Ontario's Court of Appeal explores.

Alerted in 1998 - ONLY BY A CONSULTING ENGINEER - as to the buckshee status overlooked by PMC certifier & her purchasing ''legalers' etc, she next made and maintained a fateful decision.

That decision was to proceed with $ 700 K in unit alterations already underway, including to the buckshee attic. Such would be subject to 'whatever' the future would bring.

Well that 19 year long 'whatever' has been a giant mishigas that has burned everyone's money in a bonfire.

Today as owner Ms Orr( Rainville ) is still left exposed to whatever the condo corporation may choose to spend - if at all - about terminating the buckshee attic still in place trespassing illegally into the common element. But any removal now would have a large known price tag plus restoration costs. There is no deadline.

Make a deal anyone in 1998 ?

What would have arrived in May 2001 as a possible Section 98 C.E.M.A agreement, would have been cheaper for all but would open the door to possible construction safety issues & other owners' demands for matching attics.

Ironically the voluminous texts of early judgments cite that the condo corp had explored such possibility with her . . . .
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#19020
buckshee attic punished everyone . . . 2019/12/13 19:02  
Updating a cautionary tale about fateful early decisions made when entering the Twilight Zones of condo or Building Scheme living :

Now S.R.L. self-represented ( pro se ) litigant, Ms Orr ( Rainville ) unsuccessfully challenges legal billings by one set of legal professionals who had provided services later in her long struggle . . .

If ever someone has had a ringside seat to learn litigation, it's been this lady. Ruled a little too late for defendants' memories, this latest awards no costs against her. Wouldn't want to be unfair to lawyers . . .

Many professionals arguably let her down, but not the engineer whose professionalism picked this out long before other experts.

Rainville v. Schein, 2019 ONSC 7096 issued Dec 6 2019 http://canlii.ca/t/j3xhv
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