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#19014
NO RIGHT TO GRAND-FATHERING : judge enforces RULE for BALCONY SMOKEBAN W.C.C.# 31 v Silberberg 2019/11/29 22:28  
A Compliance Order under the Ontario Condominium Act 1998's section 134 is issued ( without chargebacks & liens of various legalities etc ) against stubborn Guelph defiers of new condo RULE against smoking ON their condo balcony.

They had defied the new RULE for over a year despite complaint-responding management requests. As defendants losing a Compliance Order application, technically they will now be liable for "additional costs" under the Act's subsection 134 (5) albeit only to obtain this Compliance Order. Looks OK here. ( That's instead of pre-judgment voodoo charge-backs, voodoo fines & even pre-judgment liens if they don't now pay up ).

Happily no reference is shown to any unplatformed charge-backs for legal demand letters / charges nor whatevers lacking a direct lawful platform under Ontario's Condominium Act 1998 .

Noteworthy includes that

- the Endorsement cites that there is NO prohibition against smoking INSIDE the unit

- smokers fail in claiming right to a RULE- grandfathering here labelled "grandparenting"

- smokers also fail in arguing that the BALCONY SMOKEBAN RULE had been both "UNREASONABLE" AND INVALIDLY ENACTED, and also that part of their balcony's actual dimension is private and somehow Rule-exempt rather than "exclusive use common element" like other folks' balconies . . . .

The Endorsement interestingly addresses deference and nuisance aspects.

Wellington C.C. # 31 v Silberberg et al 2019 ONSC 6594 issued Nov 26 2019 http://canlii.ca/t/j3mcq

One final : Grand-fathering - and specifically a 2015 outcome cited in the latest Endorsement above - got an extremely interesting discussion in Ottawa condo lawyer Jim Davidson's Jan 3/19 article ` "Decision Respecting Smoking" https://davidsoncondolaw.ca/decision-respecting-smoking/
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#19017
NO RIGHT TO GRAND-FATHERING : RULE for BALCONY SMOKEBAN enforced W.C.C.# 31 v Silberberg 2019/12/06 20:03  
1 - Lawyer & winning co-counsel Evan Holt ( Robson Carpenter LLP )'s interesting discussion of dynamics in review Application for Compliance Order to enforce BALCONY SMOKEBAN by mere Rule without grand-fathering. see : contextuals & lack of such being required by Ontario's Condominium Act 1998 howsoever enactment process is lubricated.

Dec 3/19 "Grandparenting Not Required for Rule to Be Reasonable" by lawyer Evan Holt ( Robson Carpenter LLP ) https://ontcondolaw.com/2019/12/03/grandparenting-not-required-for-rule-to-be-reasonable/

2 - Two relevant judicial decisions unfortunately not at publicly accessible canlii.org site :

Thunder Bay CC # 15 v Ewen 2015 ONSC 6611 : https://davidsoncondolaw.ca/wp-content/uploads/2019/01/2015-10-26-TBay-Condo-Corp-No.-15-v-Ewen- ONSC.pdf

York C. C. # 382 v. Dvorchik, [1997] O.A.C. Uned. 93 (CA) Feb 6, 1997.

If anyone out there wants, I'll trade this latter for text of Brunner v Greenslade 1970-1971 ( English Chancery; Megarry J ) with reference to Building Schemes & "trigger date".
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