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#19083
SOLICITOR CLIENT PRIVILEGE held by ONCAT to bar request for legal opinion - LANDAU v MTCC 757 2020/06/01 20:54  
not legal advice, as usual

ONCAT Ontario's Condominium Authority Tribunal has rejected a lawyer-owner's request for a copy of a 2018 legal opinion behind a proposed MERE RULE creating chargebacks !

( Ironically the formal a.d.r. (written ) dispute resolution of this ONCAT process, started at approximately the date of issue of the landmark rejection of oppressive voodoo charge-backing in Amlani v. Y.C.C. # 473, 2020 ONSC 194 issued Jan 13 2020. https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=19033&catid=2

There ‘s also zero reference by ONCAT now to whatever the 2018 Rule might have concerned & contained. ONCAT's focus here is non-legislated/non-enumerated solicitor client privilege & enumerated litigation shields against records requests. Reminds that ONCAT's mandate can be read by some adjudicators to ignore mis-behaviour other than narrow disclosure violations. )

Landau v M.T.C.C. # 757 2020 ONCAT 19

ONCAT rules SOLICITOR-CLIENT PRIVILEGE should be read into the non-disclosure shields. That such unwritten shield overrides an owner’s section 55 ( Condominium Act 1998 ) records request seeking her condo corp’s 2018 LEGAL OPINION rendered by its own unidentified counsel.

That 2018 opinion is claimed to validate the here-undetailed MERE RULE CHANGE said to bring some sort of chargebacks !

There’s zero detail about whether such Rule-chargebacks had either a validating express ACT platform, nor even merely some possibly voodoo general provision as a basis merely within the Declaration.

In 2018 record requester / non-practising lawyer Ms REVA LANDAU had warned that the proposed Rule platformed chargebacks were illegal. Or very dubious.

Further she warned that misuse & resulting challenges by others, might ultimately generate expensive litigation, raising fees etc. She never threatened litigation.

She even obtained & supplied to the condo corp a third party legal opinion of such invalidity.

She was also part of timely Owners requisition that rejected the proposed Rule. But the condo corp later repackaged the Rule still of concern to requester Landau.

BUT anyway :

1 - ONCAT now rejects her records application for the withheld 2018 legal opinion. Tells her that despite SOLICITOR CLIENT PRIVILEGE being NOT AT ALL specifically enumerated in Condo Act 1998’s section 55 (4) as a non-disclosurable shelter, such line of general jurisprudence exempts disclosure of counsel’s 2018 advice claiming legality of the proposed Rule.

Requester Ms Landau incidentally had argued here that :

- exemptions / shields from disclosure in the Act have to be express, not absent nor merely implied at best;

- the legislators had expressly & exhaustively listed the sole grounds of sheltering from disclosurable records, but solicitor client privilege isn't one such; and

- S-C Privilege anyway had been “waivered” by governancers’ telling owners that the 2018 proposed Rule was approved by counsel. And by counsel's personal assurance to Owners at some time. ie that privilege has been waivered to third parties by client & counsel conduct / "horses are out of the barn" etc ).

( One might further raise that : if Owners need this for the issue & as consumers are actually paying for the advice, then why shouldn't they get to see "the whole package" transparently from those they allow to govern ? )

2 - But ONCAT against her further cites precedents that it claims mean that conversely any FORM OF OVERRIDE contrary to the important Solicitor Client PRIVILEGE, must instead itself be expressed extremely specifically !

It then places reverse ONUS onto requester to prove specificity of such 'overriding' S-C privilege, NOT EVEN ON the condo corp to have to defend such onus !

3 - Conversely against the condo corporation withholders, ONCAT rejects dangerous defence by condo corp that bizarrely it could legally deem mere requesting the record as litigious & that such purpose is a litigation shield under 55(4) b ! Suddenly everybody's request could be slam-dunked !

( NOTE that requester Landau had never threatened litigation. Both as a lawyer & owner she credibly could understand how dangerous are voodoo weapons - as AMLANI etc had reconfirmed in late January and that it could cost all owners ! )

ONCAT refuses cost awards to either.

In perspective, the solicitor client privilege at least is an incentive to get competent legal advice. And for a frank exchange of opinion & facts within that shield. Many condos & Building Scheme governancers may have such skillset deficits that professional advice is needed desperately. That S-C-privilege protects innocent & guilty alike. Yes ( an argument might continue ) that the privilege actually denies transparency to Owners like shareholders amidst trying to make a related group decision, but otherwise advice might be inhibited & even less "balanced". A complex issue for reporting to shareholders . . . .

Landau v M.T.C.C. # 757 2020 ONCAT 19 issued May 26/20 http://canlii.ca/t/j7xs5
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#19084
addressed the Legislative Committee Hearings - 2015 ( proposed Condo Act revisions ) 2020/06/01 22:27  
still not legal advice

Was the REAL BIGGY that adjudicator can get away with putting REVERSE ONUS onto records requester to DISPROVE a non-enumerated shield & to do it with great specificity too !

Wasn’t the legislated list of defences exhaustive ? No - according to this adjudicator.



Anyway :

from Legislative transcript of Oct 2015 Hearing presenters as previously onlined at condomadness :

Ms. Reva Landau

"My name is Reva Landau. I’ve been a condominium unit owner and resident in a 200-unit condo in central Toronto since 1993. I’ve also been a member of the board on several occasions, for a total of about nine years.

I have waited four months on several occasions to see approved board minutes and financial statements. It was after significant, constant emails, telephone calls and letters to the board that I finally received them.

Most condominiums have at least some non-resident owners. In Toronto, a number of condominiums have 50% to 60% non-resident owners. Unless an owner can get a hold of the names and mailing addresses of other unit owners, they can’t contact them to force a vote on the rules, to force a vote on questions of changes and modifications that do fall under section 97, and for a number of other issues.

Now, judges have ruled that unit owners do have the right to the names and mailing addresses of other unit owners, but some condominium boards and property managers say, “That’s just the opinion of a couple of judges. We don’t have to release the names and mailing addresses.” They claim privacy concerns, or that subsection 55(4) forbids them from releasing records relating to specific units or owners"
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#19092
careful vetting when FINING FOR A RULE VIOLATION 2020/06/23 21:06  
Not legal advice as usual.

Amongst the reviews of the above, one Ontario lawyer has urged caution in redacting the release of so called charge back letters for mere Rule violations.

"Rules" have a wide scope but . . . is it back again to charge-backs that may be attempted within mere voodoo, site-specific documents applied like some sort of civil court.

How can anything but an express heading within the Act platform charge backs for MOST mere RULE violations ?

That is unless they're FINES where legal as in British Columbia. Is this B.C. ? The Amlani appeal may answer some questions, but how will it ?
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