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TOPIC:
#19004
SELECTIVE ENFORCEMENT held OPPRESSION : McCarthy Place retirement condos (Stratford) 2019/10/03 22:20  
The controlling majority interests of McCarthy Place ( "retirement condominium" corporation in Stratford Ontario ) has been held by Superior Court to have oppressed minority owners.

What constituted the violation of the Ontario Condominium Act's Section 135 ( Oppression Remedy ) ?

In flat out contravention of both the Declaration & relevant by-law, the majority related companies ( 113 units ) imposed on the victim minority owners ( 11 units ) , certain occupant service payments, while exempting a very substantial number of its own units.

Not merely "technical" fouls, the effect of the deliberate contraventions gets held to render less competitive the costs for retiror tenants passed along to occupy the minority owners’ units.

The controlling majority's contraventions effectively created an “uneven playing field” of occupancy charges required by both Declaration & by-law to be contracted upon retirement age unit occupants - whether tenants or owners.

Consequently it's not hard to understand that MONTHLY with as much as $1,000 or more to be "saved", retirement tenants would have powerful motivation to endlessly migrate to the majority group's units. That's if discounts or exemptions could be obtained . . . .

BACKGROUND

McCarthy Place is a 124 UNIT residential condominium corporation subject to Ontario's Condominium Act 1998.

The corporation & occupancy of each unit however is said also subject to Ontario's Retirement Homes Act, 2010, S.O. 2010, c. 11..

113 of McCarthy Place's 124 units are owned by the service-delivering majority group. Its own employees hold two of the three seats on the Board of Directors. As a "condo corporation" McCarthy Place is also managed by the majority.

Most - if not all - of the 124 units are occupied not by owners but by senior-age tenants relying on a Declaration-required menu of service payments for services also delivered by the majority group's corporately-linked entities. Express service payment contracts are cited to be Declarationed without any units being exempted .

It's "residential for profit". The "service payments" eg household/meals/nursing presence are actually NOT condo common expenses even though expressly set within the Declaration and made mandatory for each unit.

A conventional condo audit might NOT contemplate any service revenues / discounts ? Or should it here ?

The judgment cites some MONTHLY service & occupancy bottom line bills above $ 5 K .

WHAT WAS OPPRESSIVE ABOUT THE MAJORITY SELECTIVELY EXEMPTING HALF OF ITS UNITS ?

The litigation process finally forced the majority to disclose the pattern of Declaration & By-law violating exemptions.

Testimony suggested a bizarre belief that the Declaration could be over-riden if otherwise empty units had to be tenanted using discounting or exemptions . . .

The judgment further rejects a majority's defence that included that mere violations are not Oppression unless done in "Bad Faith".

Not so, rules this judge after reviewing some oppression biggies from Canada's Supreme Court ( BCE ) & one of Ontario's commercial condo oppression precedents ( Walia ).

Some loose ends left by levelling the playing field

To remedy the oppression, will some - ? half ? - of the oppressive majority's discount-enjoying retiror-occupants now face steep increases of as much as $ 1,000 monthly ?

OR if unable to pay, will some have to move & where & when ? Not always easy at that age amidst health issues & usual scarcity of affordable senior care homes . . .

Or conversely will the Declaration be amended to exempt the units of the oppressed minority owners ?

The judgment is silent as to the impacts ( on existing occupants ) of howsoever restoring a uniform / level playing field, which arguably the oppressors should have expected to eventually arrive . . .

The judgment is well worth a read :

Siemon v. Perth S.C.C. ( # 39 ) 2019 ONSC 5576 issued Sep 27/19 http://canlii.ca/t/j2ng1
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