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DEFICIENCY CLAIM survives upfront OWNER NOTICE challenge by former PMC: YRCC 1206 v various 2019/06/20 19:06  
Ottawa condo lawyer Rod Escayola ( Gowling WLG Ottawa ) reviews judicial consideration recently given to a defence – raised by one of a number of arms-length defendants, specifically by the plaintiff condo corporation’s own former PMC management company - as attempted upfront against the condo corporation’s lawsuit for construction deficiencies.

Consideration was ( ? surprisingly ? ) given by the court - albeit eventually rejected - to the former PMC defendant’s bizarre upfront defence raising FAILURE TO NOTIFY the condo owners before filing litigation.

Such prior notice ( to condo owners ) is required in certain – but NOT ALL - instances by the Condominium Act 1998’s section 23 “Action by Corporation” ( excerpted below ) . Mr Escayola interestingly discusses these, and NOT ALL LITIGATION requires prior Notice to Owners.

If I drove my John Deere over your brand new Cadillac, should I be allowed to avoid liability - for example - just because you had been at the time late with a car payment owed to the bank ?

So should that "over the fence" type defence even be available to anyone other than a condo owner arguably short of a section 23 Notice ? How at all would the defendants’ rights be directly jeopardized ?

Anyway Rod Escayola speculates that IF such defence gets accepted in some scenarios – that’s IF it even should be available to be raised by a defendant which IS NOT EVEN A CONDO OWNER ( ! ) - such could critically even invalidate /staledate a condo corporation’s filings !

So he advises : If a condo corporation is about to file litigation, proper pre-notification to owners is recommended even when in doubt . . . Well worth a reading . . .

Xcprted Condominium Act 1998 S.O. 1998 c 19

Action by corporation
23 (1) Subject to subsection (2), in addition to any other remedies that a corporation may have, a corporation may, on its own behalf and on behalf of an owner,
(a) commence, maintain or settle an action for damages and costs in respect of any damage to common elements, the assets of the corporation or individual units; and
(b) commence, maintain or settle an action with respect to a contract involving the common elements or a unit, even though the corporation was not a party to the contract in respect of which the action is brought. 1998, c. 19, s. 23 (1).
Notice to owners
(2) Before commencing an action mentioned in subsection (1), the corporation shall give written notice of the general nature of the action to all persons whose names appear in the record of the corporation required by section 46.1 or are required by that section to appear in that record except if,
(a) the action is to enforce a lien of the corporation under section 85 or to fulfil its duty under subsection 17 (3); or
(b) the action is commenced in the Small Claims Court. 1998, c. 19, s. 23 (2); 2015, c. 28, Sched. 1, s. 20.

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The judgment : Y.R.C.C. # 1206 v 520 Steeles Dev et al 2019 ONSC 2991 issued May 31/19

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Well worth a reading - The article :

June 19/19 Condo Adviser “ Condos Must Notify Owners Before They Commence Lawsuits” by lawyer Rod Escayola GOWLING WLG blog-Ontario
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