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OPPRESSION remedy NOT EASY TO GET : Beswick et al v YRSCC # 1175 2020/11/17 10:15  
Not legal advice, as usual.

Three months after the landmark AMLANI decision - but at that time amidst an appeal process which culminated in Amlani's upholding - a Toronto civil judge refuses a section 135 Oppression remedy sought under Ontario's Condominium Act 1998.

The rejection suggests once more how tough it apparently still is to get that remedy for merely incompetence or misguided "frontier justice". Is incompetence so widespread that the Oppression remedy would jam the courts & shut down thousands of Ontario condo communities ?

Here amidst some sloppy original governance documents & arguably stubborn degrees of incompetence, a minority of objectors failed to persuade a Section 135 remedy.

But they do get some court-ordered clarification and remedy of gaps and internal contradictions used against them to stubbornly apply frontier justice.

Amongst the Act-defying mismanagement abuses held here :

improper chargeback procedures; serving owner unit notices by masking tape on doors & mailboxes; dubious billings for common services & surface repairs; retroactive unit-specific water billings without required unit meters . . . .

What does this seem to remind ?

Respectfully, that it doesn't look easy to persuade judges that incompetence - particularly amidst some degree of ambiguous conflicts between Disclosure documents & Declaration - has risen to the high level of Section 135 Oppression.

Or at least not to the level of toxic & boozy threats. Nor majority investors' illegally rendering un-competitive a minority-interest group's competing fee levels.

Nor retroactively repudiating credibly express approval to facilitate access between adjacent units under common ownership. Not a slam-dunk.

Nor as in 2003 dangerous chaos repeatedly caused by deeply troubled family member living alone in a residential unit : periodic strait-jacketed removals by police after fires barely avoided & hygienic dangers to the general community ! ! . . .

Nor in AMLANI initiating a Power of Sale based on a lien lacking a statutory platform within Ontario's Condominium Act 1998. And then ( as held judicially ) walking out of mediation and playing some unreasonable hardball while Amlani pursued good-faith expensive remedies . .

Beswick et al v Y.R.S.C.C. # 1175 2020 ONSC 2785 heard Feb 5/20 issued May 4/20
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de-constructing a DARN TOUGH remedy to get ( Beswick et al v YRSCC # 1175 ) 2020/11/18 21:20  
Not legal advice as usual.

1 - The threshold for actually obtaining Ontario's Section 135 Oppression remedy, looks pretty high.

( Like bothering to try to alert your Building Scheme exec that its plots' cross-covenants on private titles are about to expire by recording statutes. And that your POA never had any legal status anyway. Why try ? )

That some try it seriously as S.R.L. self-represented litigants, respectfully is gob-smacking

2 - The Beswick decision was rendered about 19 years since this Ontario condo remedy first became clearly available in May 2001.

As leading precedents the Beswick decision choses to cite three judgments where interestingly the courts all refused Oppression remedies being sought. The 3 cited are :

* ONCA Ontario's Court of Appeal itself in 2011 ( M.T.C.C. # 1272 v Beach 2011 ONCA 667 ) basing its analytical path heavily on the landmark multi-cited S.C.C. approach in non-condo decision BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, [2008] 3 S.C.R. 560

Ontario lower tier civil courts :

1240233 Ont Inc v Y.R.C.C. # 852 ( 2009 ) Canlii 1 ONSC and

Hakim v T.S.C.C. # 1737

3 - Legal articles have looked very interestingly at this judgment.

July 27/20 “Section 92 charge-back checklist” by lawyer Bob Gardiner ( Gardiner Miller Arnold LLP ) ( Arguably a lengthy list delivering a reality check for those who never managed a charge-back for unit owner's failure with some complexity. )

May 5/20 “Oppression Remedy – Recent Court Decision”
by Sarah Morrey ( associate Lash Condo Law – Toronto )

xcrpt : “ . . . This decision appears to increase the threshold required for owners to prove entitlement to the oppression remedy under Section 135 of the Act.

If improper notice, inappropriate charges and failure to comply with the governing documents does not equate to oppression – it begs the question, what does ?"
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