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#18976
OPPRESSION CLAIM fails to hurdle contracted & statutory MEDIATION & ARBITRATION : LEEDS S.C.C #41 2019/06/28 14:26  
( This is again not legal advice. )

ONSC Superior Court rejects a Condo Act 1998 section 135 OPPRESSION remedy sought by residential first phase of Brockville multi-phase waterfront project.

Had such been granted as an ACT violation rather than essentially a dispute over "documents", the agreed M&A provisions would have been by-passed to resolve disputes about shared facility burdens.

The judgment treats that expressly contracted submission to mediation & arbitration process – also legislated in Ontario Condo Act 1998’s section 132 - is effectively a rebuttable presumption to override any stand-alone claim to bypass on alleged grounds of oppression. Exceptions are possible, it notes.

At this downtown Brockville site on the St Lawrence Riverfront, a Declarant-friendly upfront legal framework ( for facility sharing ) brings costs not yet happily shared with unbuilt future phases. Upfront rosy visions not quite as wished by the condo buyers . . . A vineyard long laboured within . . .

Leeds S.C.C. # 41 v. Fuller et al 2019 ONSC 3900 issued June 24/19 http://canlii.ca/t/j14k4

xcrpt :

" . . .[24] Section 7 of the Arbitration Act, S.O. 1991, c. 17 (the “Arbitration Act”), states:

Stay

(1) If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding.

Exceptions

(2) However, the court may refuse to stay the proceeding in any of the following cases :

1. A party entered into the arbitration agreement while under a legal incapacity.
2. The arbitration agreement is invalid.
3. The subject matter of the dispute is not capable of being the subject of arbitration under Ontario law.
4. The motion was brought with undue delay.
5. The matter is a proper one for default or summary judgment. . . ." -unquote
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#18977
Did the turn-over Board miss a TWELVE MONTH OPPORTUNITY TO RESCIND THE SHARING ? 2019/06/30 20:08  
In contrast to B.C's Crystal parking war ( pre-incorporation agreements latest held to be CONTRACTUALLY binding substantially by lethargy / blissful acquiescence ! ), this judgment notes a tantalizing escape opportunity missed.

It notes that the Ontario Condominium Act 1998's section 113 creates a TWELVE MONTH WINDOW OF OPPORTUNITY for a post-turnover BOARD to APPLY FOR JUDICIAL RELIEF seeking to rescind certain facility sharing agreements.( = maybe a very BIG hurdle when everyone is still starry-eyed ? ) . . .

Xcrpt Leeds S.C.C. # 41 v. Fuller et al 2019 ONSC 3900:

" . . . [37] To the extent that the dispute relates to the fairness of the SFA, LSCC 41 ought to have brought an application under s. 113 of the Condominium Act, which permits any party to an agreement for mutual use, provision or maintenance, or the cost-sharing of facilities or services, to make an application to the Superior Court within one year of the turnover meeting.

While LSCC 41 commenced an application in relation to the SAA, LSCC 41 brought no application in relation to the SFA within the required time period.

In fact, LSCC 41’s counsel stated in the spring of 2017 that LSCC 41 had no issues with the SFA and that it would not be bringing an application. . . ." unquote
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