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#18693
Will LIEN CHALLENGE CHANGES disadvantage owners targetted by condo liens ? 2017/03/18 15:31  
1- WHERE A LIEN GETS CHALLENGED, recent Small Claims outcomes - see several below -- are a reminder why management & general owners have faced an expensive downside risked in using the LIEN WEAPON against targetted condo owners. That's if the target fights back.

Regardless of the sometimes notoriety when such weapon was being used to punish, indemnify or both, defending them after a challenge could be uncertain.

And may well incur legal bills FAR IN EXCESS of what is awarded against an unsuccessful lien challenging owner. Section 29 of the Courts of Justice Act GUIDELINES a 15 % Small Claims cost award ceilings even where successfully defended. ( addendum Aug 31/17 : check out "VEXATIOUS LITIGANT RULING after dispute buries owners in AVALANCHE OF LEGAL COSTS - SENNEK v CCC 116" http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18756&catid=9 )

And maybe even 'worse' from a governancer's view : a Small Claims Deputy Judge who might ACTUALLY QUESTION the legal validity of liens where not platformed expressly by the Condo Act 1998's sections 92, 98, 105 or 134(5) . . . .

Or - as to factual allegations - who dares to question the Business Judgement of minimal skillsets. . .

BUT


2 - Ontario condo LIEN CHALLENGE changes awaiting implementation now mean owners targetted by a condo lien, had BETTER QUICKLY recognize that they have a VERY much shorter deadline to challenge.

A 30 day deadline to appeal suspensively, just for starters.

A much shorter time to get help or get their defences in order. Or to settle even with illegal management accusations.

The changes in some ways are actually management-friendly but NOT friendly to property & civil rights.


3 - Troubling is that at the present time the Province has apparently NOT YET seen fit to display any revised version of what used to be labelled O. Reg 48/01's Form 14 Notice of Lien.

Comparable "Forms" under the RTA Residential Tenancies Act 2006 are the sort of alert that should be given, just for starters. Even with the most explicit warnings on RTA Forms, many inexperienced tenants can get steamrolled long before they know what hit them.

Without an upfront alert to targetted owners, the timeframes alone could roll over lien disputants before they even begin to grasp what's happening & that their options are being strangled


4 - Awaiting implementation, the PCOA Protecting Condo Owners etc Act 2015 in its section 77 will amend The Condo act 1998's section 84 as follows to introduce :

Addition to contribution

. . . (4) If the corporation makes a prescribed addition to the amount of the contribution to the common expenses payable for an owner’s unit, the corporation shall provide the prescribed notice to the owner within 15 days of making the addition.

Reaction of owner

(5) Within 30 days of receiving the notice or within such other time period that is determined by the regulations, the owner shall,

(a) pay the amount of the addition to the corporation in the prescribed manner;

(b) if the owner transfers the unit within the 30 days or the other time period, as applicable,
(i) ensure that the amount of the addition is held in escrow, in accordance with the regulations, when the transaction for the transfer closes until it is to be paid to the person entitled to it, as determined in accordance with the regulations, and

(ii) give notice to the corporation, in accordance with the regulations and as soon as reasonably possible after the transfer, that the amount of the addition is being so held in escrow;

(c) apply, in accordance with Part I.2, to the Condominium Authority Tribunal established under that Part for resolution of the requirement to pay the addition as a matter in dispute, if the Tribunal has been established under that Part and the application may be made under that Part; or

(d) apply to the Superior Court of Justice for resolution of the requirement to pay the addition, if the Condominium Authority Tribunal has not been established under Part I.2 or the application described in clause (c) may not be made under that Part.

Exemption during dispute resolution

(6) Subject to subsection (10), an owner who complies with clause (5) (c) or (d) is exempt from the obligation to contribute to the common expenses with respect to the amount of the addition, unless a settlement agreement or a final order of the Condominium Authority Tribunal or of a court provides otherwise, as is determined by the regulations, if any. . . .

https://www.ontario.ca/laws/statute/98c19
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#18694
Some SMALL CLAIMS OUTCOMES at a high cost to management 2017/03/18 15:56  
1. Leave to appeal granted : WEXLER balcony pigeon mess

An Ottawa SRL plaintiff fails ( Feb 18/16 not at canlii) in suing for $ 2,500. Most of that is an harassment claim. MERELY $ 255 of it is a lawful looking, bargain-priced charge back for clean-up & pigeon deterrence on her unit's (likely exclusive use, common element) balcony. The S.R.L. loses but . . .

But instead of being correctly thrown out the courtroom door with the Condo Act explained after 2 hours, she gets away with THREE DAYS OF HEARINGS . . . .

THEN - despite the commendable 15 % guideline in Cts of Justice Act s 29 - she is walloped for a shocking $ 20 K out of gobsmacking $ 36 K claimed as legals & costs by successful lien / "Indemnification charge-back" defenders !

Given the health & safety problems she was causing, maybe she deserved it double.

( Incredibly the 3 judicial outcomes fail to address that the charge-backs in this case had a FULL legal basis under the Condo Act's subsection 92(3) which makes an owner liable for 'maintenance'. The Act there expressly deems owner consent to entry & cost add-on. The Declaration is further excerpted to flat-out make balcony maintenance an owner obligation. )

Wexler v Carleton CC # 28 2016 ONSC 4162 http://canlii.ca/t/gs6g1 ; http://www.lashcondolaw.com/wp-content/uploads/2016/05/Case-Wexler-v-Carleton-Condominium-Corp-No- 28.pdf

2 HADANI washer leaks

Hadani fails to overthrow & get refund for $17 K lien paid by his lender after dispute over alleged washer leaks.

BUT the liening costs the condo corp bigtime in unrecovered legals ). Winning Lien defenders get only $ 3100 of claimed $ 33 K fees & costs ! (calculated largely at 15 % of the rejected claim ):

Hadani v T.S.C.C. # 2095 (2016) CanLII 58944 (ON SCSM) issued Aug 24/16 http://canlii.ca/t/gtm75


3 ( Round # 1 - 2016 Small Claims Court ) WASHINGTON v YCC 41 : GREASE TRAP WARS !

In 2016 Small Claims Court threw out $17 K liens & awarded $ 2,500 to the lien-challenger. As in RAO below Deputy Judge put onus of justification on lieners ( contrary to Hadani washer leak judge who refuses to order refund & INSTEAD HAD PUT ONUS onto lien challenger to prove invalidity ) !

Condemning the Board’s CAUSE-ASSIGNING decision as ‘flippant’ & suspect, this judgment does not give them a clear Business Judgement deference.

xcrpted 2016 . . . [46] Most important of all I find from the testimony of the board members that the board was irresponsible and rather flippant in “determining” that the plaintiff should pay for the clearing of the blockage.

The board members testified that the decision to have the plaintiff pay these costs took no more than a few seconds or at most no more than “three minutes”, and any discussion in this regard was laden with expletives – leaving no room or time for any sober discussion -- that the plaintiff should pay for the clearing of the blockage.

In my view this is not a professional and serious way to determine such important issues as the allocation of costs to a particular unit owner.

[47] There was also telling evidence, which I accept on a balance of probabilities, that several other units in the Property experienced similar blockages and that for at least the last ten years prior to March 2013 the plaintiff had not suffered any blockage. . . .
[50] Considering all of the evidence in this case I am unable to conclude on a balance of probabilities that the blockage was caused by the plaintiff. .."

Washington v YCC # 441 2016 CanLII 100195 (ON SCSM) issued July 18/16 http://canlii.ca/t/gxpw8 Both sides with counsel after 2 days of Hearings

4 RAO alleged caulking leaks

Invalidating the upperfloor caulking lien claims, Small Claims awards RAO $5960 damages plus $ 1800 costs & disbursements here. RAO’s lender had been slam-dunked into paying originally $2,465 and presumably rolled such into RAO’s debt


Rao v TSCC # 1764 http://canlii.ca/t/gsjbz

A cafcor topic at : http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18602&catid=9
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#18695
Liening outside statutory authority 2017/03/18 20:18  
1- In perspective, some U.S. states limit what sort of unilateral financial recovery that can be unilaterally extracted from condo or HOA owners by their Boards. Eg $1 K and cannot be subject of a foreclosure.

Some limit the total amount recoverable by liens for otherwise lawful US fines. Or impose a 'due process' challenge opportunity 'as of right'.

2- Being creatures of a specific statute, condo corporations arguably have no more than express & specific grounds within such statute to purport to extract bucks. Voodoo documents, regardless.

This contrasts to totally covenant-created communities like Building Schemes which have no Ontario counterpart to the Condominium Act 1998.

3 - The arguments have gone on for years & beg the question whether condo corporations & their service-providers should dare be allowed to purport to unilaterally levy "indemnity surcharges" for factually disputed claims.

One historically notorious scenario :

Questioner to ToStar condo law expert Gerry Hyman LLB June 21 2008 :

quote : "I received a letter from management stating that I was responsible for common element carpet stains and demanding payment of the cleaning cost.

I was advised that if I didn't pay a lien would be registered against my unit and the default would be included in a status certificate that I required because I was refinancing my mortgage.

I had not caused and had never seen the stains but I paid under protest, informing the manager that I would consider proceeding to small claims court to recover the payment.

Weeks after my cheque was cashed I received a letter from the corporation's lawyer indicating why I was responsible for the cleaning costs.

Subsequently the manager advised that I had to pay the corporation $ 600 being the lawyer's fees.

Am I responsible for the cleaning costs and the legal fees ?" unquote
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#18755
RETRIAL ORDERED ( plugged drain war) : Divisional Court orders retrial of Washington v YCC #441 2017/08/26 00:59  
For a lien-disputing condo owner, the UNCERTAINTY & COSTS ASPECTS of the "Discharge & Challenge" Option look bleaker now with Divisional Court ( details below ) recently ordering retrial of the LIEN CHALLENGER'S 2016 victory in the plugged common drain war.

1- Divisional Court outcomes can be VERY suspect.

Just look at what in May 2017 was fortunately overruled by the Ontario Court of Appeal in the notorious & nationally important 2016 Wychwood Divisional Court judgments Black v Owen. ( So also such could now be argued to have retroactively impeached the earlier Divisional Court decision against the prior owner of the offsite challengers' home ! )

Divisional Court outcomes can miss some big pictures even with fairly blatant illegality involved being challenged.

2 - Where one civil disputant has an arguably slam-dunk weapon not hard to illegally misuse & ALSO totally un-platformed within the applicable Condo Act 1998 in force at date of this common drain- plugging dispute , IS IT GOOD PUBLIC POLICY on judicial appeal to further lay an onus of disproof on the target of that somewhat arbitrary weapon ?

Respectfully, that seems to have just happened here in the plugged common drain dispute.

3 - In this common drain-plugging war so far, TWO LEVELS of judges have - respectfully - MISSED THE ILLEGALITY HERE of using the CONDO LIEN weapon to unilaterally enforce a mere civil claim against the LIEN CHALLENGER Washington.

This slam-dunk mis-usage wasn't sections 92,98, 105 or 134(5) under the Condo act 1998 in force at the date of this common drain dispute.

But at least last year's Small Claims judgment ( in the owner's favour ) invalidated the lien on 'factual grounds' : the claimant condo corporation held failing to discharge its onus to prove the claim.

In 2016 it also dared to insightfully challenge strong evidence of a disregard for due process when the condo corporation's Board spent a mere couple of minutes deliberating & with expletives using a condo lien for its mere civil claim. but . . .

"Not enough deference to the Directors", has just ruled the Divisional Court on appeal in ordering a retrial. ( Do Boards ever go astray ? )

4 - WHAT ARE THE RISKS OF THE 'DISCHARGE & CHALLENGE STRATEGY' ?

Regardless of the wider Lien Illegality issue and the uncertainty, is it now good public policy to reverse the onus of proof away from the allegation-maker ?

Whether its ambiguous plumbing evidence or whimsical carpet stain claims, the balance of skillsets & bucks are already usually heavily imbalanced against the owner.

5 - What should an owner do if unfairly liened ?

If unable to persuade a lawful outcome, condo lien challengers need to retain competent & insured legal advice from a Law Society professional.

AND BETTER MAKE IT QUICK : SEE THE SUBSECTION 84(5) TIMEFRAMES ABOVE !

6 - Some of the purely factual 2016 findings now over-riden by Divisional Court ( from the LIEN CHALLENGER'S 2016 victory ) :

( Quote 2016 ; ) " . . . [36] Taking the totality of the evidence into consideration I am not persuaded on a balance of probabilities that the source of the blockage was definitively determined to be from 48.

[37] Nor am I satisfied that the defendant established that the blockage was the result of any act or omission of the plaintiff or any failure of the plaintiff to maintain his unit.

[38] Since the defendant took the position that the source of the blockage was from 48, it was incumbent upon the defendant to prove in an unambiguous and straightforward fashion the source of the blockage.

It failed to do so. .."

* * *

IN DIVISIONAL COURT NOW

Washington v YCC # 441 2017 ONSC 4956 issued Aug 21/17 http://canlii.ca/t/h5jvc

xcpted 2017 :

" . . . [5 . . . . the Deputy Judge released his reasons in which he found in favour of the plaintiff. It is the content of those reasons that gives rise to the central issue on this appeal.

. . . [8] The central problem with the trial judge’s reasons is that he appears to find that, in order for the defendant to resist the plaintiff’s claim, the defendant had to prove absolutely that the plaintiff caused the plumbing blockage.

In so finding, the trial judge appears to have reversed the onus of proof and also to have applied the wrong burden of proof.

. . .[10] With respect, the defendant was not obliged, in defending the plaintiff’s claim, to “definitively” prove that the source of the plumbing blockage was the plaintiff’s unit nor was the defendant obliged to prove “in an unambiguous and straightforward fashion” that the plaintiff’s unit was the source.

Rather, as in any civil proceeding, the onus rested on the plaintiff.

In order to succeed on his claim, it was the plaintiff’s obligation to establish that it was more likely than not that he was not the source of the plumbing blockage. . . .

[13] I am also concerned that, in reaching his conclusion, the trial judge appears to have discounted, if not completely rejected, the evidence of the members of the Board of Directors . . .

More specifically, the trial judge concluded that the members of the Board were “irresponsible” and “rather flippant” in their decision because their discussion of the subject was “laden with expletives”.

With respect, the manner in which different people may express themselves is hardly a solid foundation for rejecting their evidence.

The trial judge’s consideration of this evidence also does not appear to accord the required degree of deference to which the Board of Directors of a condominium corporation is entitled: 3716724 Canada Inc. v. Carleton Condominium Corp. No. 375, [2016] O.J. No. 4526 (C.A.) at para. 52.

[14] In any event, I am reinforced in my concern about the approach taken by the trial judge by the many references in his reasons where he refers to the defendant failing to produce evidence when he does not appear to hold the plaintiff to the same requirement.

As I have said, it is the plaintiff who bears the onus of proving his case..." - Divisional Court 2017
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#18765
WEXLER balcony pigeon chargeback war: DIVISIONAL COURT overturns $20K legal cost award 2017/10/10 00:03  
1 - Now in 2017 with counsel, a west Ottawa condo owner who had contested a $ 255 bargain priced & apparently legal charge-back, has just been unburdened of a $20 K legal costs award imposed in her Round #1 Dec 2015 Small Claims NIGHTMARE.

BUT it's just become an EVEN WORSE nightmare for her community's other owners. . .

Despite their prevailing on the $255 charge-back itself left intact, this legal costs outcome now means GENERAL OWNERS of Carleton CC #28 will now have to suck up at least $ 40 K of legal costs without partial offset by Ms Wexler's $ 20 K (see above) just UNBURDENED from her shoulders !

The guidelined 15 % of Ms Wexler's original $2500 claim, may cost her a mere $ 400 plus her appeal counsel's fees.

About the upheld mere $255 charge-back, in 2015 instead of a 'no brainer' explanation of the Condominium Act 1998, the Small Claims judge let her ramble for 3 days. Then the Small Claims judge hit the charge back challenger with a shaky $20 K atomic bomb of defence costs claimed by then to have reached $ 35K

( Courts are faced with hordes of self represented litigants. Dealing with them fairly in an adversarially based civil justice system, can be a nightmare including for Canada's top courts. See below )

Summary : Who wins these ? Over a held-valid, legal looking $ 255 charge-back, a wild & uncertain ride unfolded that might have been avoided by Ontario's tight new, owner-challenging time-frames (above) & Tribunal dispute resolution process.

So imagine then the costs invited by trying to impose a voodoo charge back - not in Ms Wexler's case - without statutory platform if an owner actually gets competent legal advice . . .

Wexler v Carleton CC #28 issued Sep 25/17 http://canlii.ca/t/h6g9f


ADDENDUM : Highly respected Ottawa condo lawyer Jim Davidson LLB ( Davidson Houle Allen LLP ) reviews Wexler's relief given by Divisional Court. Unfortunately the issue of voodoo "indemnification" in Declarations - unsupported expressly within the Condo Act 1998 - does not seem to be the concern.

Nor apparently the need to shutdown S.R.L.'s who have made their point fully, BEFORE they suck up 3 days of court time. Yes, procedural due process & appeal rights are fundamental to civil liberties. The CAO Tribunal is not yet hearing lien challenges despite the platform within the amended Act. When ?

http://davidsoncondolaw.ca/important-court-decision-about-recovering-costs-from-owners/


2 A judical dilemma with some similarity : Accommodating self-represented litigants

Pintea v Dale Johns et al SCC 23 ( 2017 )

Canada's Supreme Court hears a televised appeal - argued now by pro bono counsel - on behalf of a S.R.L. previously wheel-chaired & “difficult" Alberta accident victim.

Instead of the $120 K compensation such victim might have obtained for the contested auto accident, the S.R.L. plaintiff-claimant had been next held in CONTEMPT of an Alberta court for technically failing to comply with ADDRESS CHANGE judicial protocol.

For that Contempt, his compensation claim was rejected.

AND he was further hit with $83 K in DEFENCE COSTS !

During a seven year torturous path, the already wheel-chaired & disadvantage accident victim had been through 15 case management sessions & an Order that he produce 40 witnesses in person to testify.

In April Canada's top court overturned that Alberta contempt ruling, and endorsed the 2006 Canadian Judicial Council’s recommended principles of accommodation of S.R.L. litigants.

Intervenor groups had urged procedural flexibility & accommodation to avoid further imbalances in litigation.

Minority dissenter in Alta Court of Appeal cited that the SRL plaintiff “ . . . appears before us in a wheelchair and is said to be suffering from numerous disabling afflictions.

Although he is an educated and intelligent man, his submissions, both oral and written, are completely unfocused and at times incomprehensible...

Now instead, this disabled, unemployed man is saddled with a cost award of almost $83,000.

In my respectful opinion, that is a significantly disproportionate consequence for failing to file a change of address with the court...”

SCC 2017 Pintea v. Johns, 2017 SCC 23 issued April 21/17 http://canlii.ca/t/h3993

Comment on this decision includes :

May 8/17 Van Sun “ Self-represented litigants get a begrudging break” by Ian Mulgrew http://vancouversun.com/opinion/columnists/ian-mulgrew-self-represented-litigants-get-a-begrudging- break
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#18768
Tribunal ( for dispute resolution ) may NOT YET HEAR LIEN CHALLENGES ! 2017/10/17 23:00  
At the Authority's start up, disputes addressable to the Tribunal, may hear be VERY narrow. Maybe only section 55 records disputes.

Ottawa condo lawyer Rod Escayola ( Gowling WLG ) looks at just which disputes the Authority's dispute mechanism may be hearing. Not a long list.

LIEN challenges may NOT be among those. Or not yet.

Thus the new 30 day deadlines to challenge a lien or chargeback ( as discussed above ) are an IMMEDIATE URGENCY for challengers to hurdle !

Worse, with or without upfront alerts in Liening Forms - where are they ? - comparable to RTA 2006 tenancy Forms, 30 day appeal rights may be gone in a flash . . . .

And looks like there is not yet a quicker, quieter, cheaper way than Small Claims until this scenario catches up to what the 2015 Act changes allow.

Oct 11/17 "The Limited Jurisdiction of the New Condo Authority Tribunal" by Rod Escayola LLB ( Gowling WLG )http://condoadviser.ca/2017/10/the-limited-jurisdiction-of-the-new-condo-authority-tribunal/condo- law-blog-Ontario
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#18773
"Records access" only to be initially resolved ? No lien challenges ? 2017/10/23 23:17  
"Lawyers are voicing concerns over the limited jurisdiction..."

None of the comments suggest concern about the implications for lien challenges . . .

Well if the Dispute Resolution body ever puts lawyers out of condo work, the older WILDER west of Building Scheme wars could in theory generate lots of billings on the basis of wild shenanigans. That's IF anyone there wants to spend the sort of bucks spent for example in 2016 & 2017 by the Wychwood Park Trust . . .

Oct 23/17 Law Times “Concerns voiced over new condo tribunal” by Alex Robinson http://www.lawtimesnews.com/author/alex-robinson/concerns-voiced-over-new-condo-tribunal-14819/
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#18776
WAS IT AMENDED ? PRE-REGISTRATION Notices of Lien to owner 2017/11/01 23:42  
Online publication of a November 1 2017 Minister's Order as to O.Reg 48/01, does NOT appear to route to any newly revised ( former Form 14 ) Notice of ( intention to )Lien.

An apparently STILL unchanged version can be accessed elsewhere at M.G.S. ( see below)

Parallel to the "heads-up" given to residential tenants in R.T.A. 2006 Fotms, it would have been MUCH fairer to disputant condo owners that - among other things - they now face a FAR SHORTER deadline to challenge a Lien.

It also looks like the potential challenge options SO FAR will NOT include appealing to the Authority's dispute resolution environment either. Looks mostly about "records access" disputes. A paper avalanche is everywhere.

Background :

The former O.Reg 48/01 itself had ( until at least 2011 ) contained a section 24 Notice of Lien which expressly prescribed the COMPULSORY use of what had been ( formerly numbered "Form 14" ) "Notice of lien to owner under subsection 85(4) of the Condominium Act, 1998".

That Reg's section 24 literally prescribed that such Form ". . . SHALL BE IN FORM 14" of that Reg 48/01.

But approximately 2011 that Form appears to have been quietly stripped of its number (14) and consigned quietly to an obscure & bizarrely awkward online M.G.S. search site.

At Nov 2/17 the current online O.Reg 48/01 continues to prescribe usage of a Ministerially-approved Notice for the "prior warning" notice. Looking unchanged & still shown at Nov 2/17 is :

- “ Notice of Lien to Owner (Under Subsection 85 (4) of the Condominium Act, 1998) “

https://files.ontario.ca/ notice_of_lien_to_owner_under_subsection_85_4_of_the_condominium_act_1998.pdf

The November 1 2017 Minister's ( O.Reg 48/ 01) Order with list of 15 NEW Forms - but apparently NOT anything about the former Form ( 14 ) - is at :

Order of the Minister of Government and Consumer Services
Condominium Act, 1998 S.O. 1998, c. 19, as amended
Regarding Forms under Ontario Regulation 48/01

https://www.ontario.ca/land-registration/order-minister-government-and-consumer-services-forms- condominium-act-1998
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