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#19118
SELF-MANAGED's voodoo records refusals - get PENALTY & exposure : Brown v PEEL C.C. # 21 2020/08/09 17:26  
Not legal advice, as usual.

To nobody's surprise, some of the adjudications imposed by ONCAT Ontario's Condominium Authority Tribunal, sometimes expose ( but at present can only minimally penalize ) some disturbing intransigence and indefensible, unlawful records denials.

That's after one party stubbornly and consistently clings to defying what the Ontario Legislature has decided is a compulsory disclosure to an owner/mortgagee. This latest shows stubborn intransigence to defy the law, persisting all the way through ONCAT's own online attempts at A.D.R. alternative dispute resolution. And some voodoo defences erected.

It would be truly unfair to what are arguably most ( usually unpaid ) condo Directors and professional managers, to consider as representative, some of what is sometimes found to be going on. That's especially including in self-managed condo communities like the one here.

Most volunteers are generally gold. Lots of managers are spread so widely in their workload that they're more dead than alive. There's lots to do, complexity and too often little thanks.

BUT Ontario records requesters have legislated rights that are arguably intended to counter-balance skewed imbalances of power. Those rights in theory have parallels to any shareholder's right to respond to arbitrary - even sometimes unlawful - misgovernance.

Brown v Peel C.C. # 21 2020 ONCAT 26 issued Aug 5/20

Looking specifically to a remedy like Mehta ( https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=2&id=19064#19064
) - also a self-manged scenario - an ONCAT adjudicator orders the gratuitous release of most condo documents sought by the applicant. She adds costs and an almost full penalty of ( merely ) $ 4 K for record denial ( plus what is now a usual wording trying to counter retaliation or Board defiance ).

It's an award against what the adjudication describes is a self-managed residential condo corporation in Peel NW of Rexdale Blvd and # 427.

However minimal the $ 4 K penalty, the real impact may be the curtain being slightly raised on what sorta "self-management" has long been occurring at this mature rowhouse community.

The adjudicator includes - but of course is barred from addressing directly - some revelatory contextual submissions. ( But of course, some wonder if anyone ever listens much in Queens Park ? )

Xcerpt :

" . . .“ [4] For the reasons outlined below I find that the Applicant is entitled to a printed copy of all the requested records, except . . I find that the Respondent refused to provide the records and did not provide a reasonable excuse for the refusal. I assess a penalty of $4,000 to be awarded to the Applicant and award the cost of $ 200 to bring this matter before the Tribunal.

. . . . Issue 2: Did the Respondent have a reasonable excuse for not providing the documents?

[17] The evidence of the Applicant is that the Respondent did not respond to the Request.

When the Respondent was given an opportunity to produce evidence of a response, the Respondent did not submit a Board Response to Request for Records or any other form of a response to either the letter request of July 5, 2019 submitted in evidence, or the Request of August 5, 2019.

. . . . [19] The Respondent submits that the records were not provided because the Applicant has been in arrears of contributions to common expenses.

The Applicant testified that she is not in arrears.

It is important to note that there is nothing in the Act to suggest that being an owner in good standing is a prerequisite to entitlement to records. There are instances in the Act, such as serving as a director, or voting at an owners meeting, that are tied to an owner being up to date with all payments of contributions to common expenses (also known as common fees or maintenance fees). The inclusion of such requirements in one part of the Act, and the absence of such requirements in section 55 of the Act, indicates that the entitlement to records by an owner is not dependant on an owners ‘good standing’ with regard to payment of contributions to common expenses

[20] The Respondent has submitted evidence that the Applicant’s unit has been advertised on Airbnb.

There was no evidence submitted by the Respondent of a by-law or rule of PCC No. 21 to suggest that this is something the Applicant should refrain from doing.

The Act does not specify that this would disentitle an owner to the records requested. This is therefore not relevant and does not serve as a reasonable excuse.


[21] Two witnesses testified for the Applicant . . . . Both provided credible testimony. Their testimony provides a glimpse into the way the Board discharged their duties to the corporation in this self-managed corporation. The testimony provided examples of how requests for documents such as status certificates and financial information requests from owners were handled by the Board, and specifically by the Agent.

[22] When the Applicant presented a summary of her own testimony she referred to the fact that she “will testify to the absence of (receiving) audited financial statements for 17 years: no AGM for years and beyond; redacted financial statements given to members, no regular homeowners' meetings, no communications, partial maintenance, governance and the rules of the condo bylaws.”

While this speaks to the governance of the condominium corporation which is outside the jurisdiction of this Tribunal, it also reflects the Applicant’s desire to receive records that accurately depict the financial position of the corporation.

. . . [26] I will refer to . . .

I note that generally penalties operate to do two things.

First, they operate to sanction conduct that is considered undesirable.

Second, they communicate to the class of interested people and organisations that some conduct is unacceptable. The Tribunal is committed to providing dispute resolution that is fair, convenient and timely.

These are some of the values that the Tribunal should consider in establishing the appropriate amount of the penalty.

. . . [26] I will refer to . . . . I find that in the case before me the penalty should be substantial to indicate that the conduct of the Respondent is not acceptable and is deserving of sanction.

There was no Response provided. There were no governing documents provided. There was no explanation provided, prior to the involvement of this Tribunal.

There was no reasonable excuse for not providing the records. . . ." - unquote


Brown v Peel C.C. # 21 2020 ONCAT 26 issued Aug 5/20 http://canlii.ca/t/j91c3
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#19119
Can a non-registered condo corporation launch an appeal ? Brown v PEEL C.C. # 21 2020/08/09 20:42  
NOT a legal opinion, of course.

At Aug 9/20 Ontario's CAO registry returns a ZERO when searched for the CAO corporate registration of reportedly self-managed Peel C.C. #21.

How surprising is this ?

Although Ontario condo corporations are legislated created by registration of real property governance documents under Ontario's titles & condo laws, the Province introduced a requirement to file initially & periodically in CAO the Condominium Authority's corporate registry two years ago.

One inducement to so register, was said to be loss of certain civil remedies eg initiating certain forms of litigation.

With one ONCAT adjudication already under appeal & separately a successful compliance remedy granted by Superior Court to a different winning ONCAT applicant, what might this mean after this latest outcome & revelations ?

One also wonders how Peel C.C. # 21 would respond to numerous ongoing records requests by a series of different owners . . .
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