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#18666
Voodoo FINE or 'Rule & Bylaw INDEMNIFICATION charge back' ? Niagara NCC #6 v TEMIDEO et al 2017/02/21 15:26  
(restored Feb 21/17; from original Feb 9/17 text difference is possible. Number of 'views' is also understated )

A St Catharines court has upheld $ 1700 worth of challenged condo LIENS actually filed on title prior to any Compliance Order. ( The judgment contains a discrepancy in spelling the lien-challenging plaintiff owner's surname - either 'Temedio' or 'Temideo' )

Arguably the costs could & should have been left to be legalized by a court order if and when granted. see Condo act 134(5)

Instead the judgment grants a compliance order against the lien-challenger but leaves intact an arguably voodoo lien PLUS costs of discharging, interest etc

The lien purported to be empowered by a noise abatement Rule & By-lawed ‘indemnity’ provision. The costs were for threat letters before litigation began. The term LIEN is once even mis-spelled as ‘lean’ instead of 'lien'.

The use of the lien power at that early time before litigation, raises a number of legal issues of the type beefed for years to the Legislature of Ontario & in many US states. To see it flagrantly condoned here is unsettling.

( Pending legislative changes will bring a QUICKIE challenge right with a mere 30 days to lodge to the new Tribunal. This Temideo/Temedio/whatever outcome shows why maybe getting such out of judicial hands isn't the worst outcome.

Down the road of course may be lots of chance for abuse after enough governancers start thinking a future charge back appeal provision via PCOA's section 77 into Condo Act 84(3), actually will be a 'legitimizer' . . . )

The Legislature ( & counterparts throughout the U.S.) hear lots of complaints about LIENS being mis-used for unilateral hardball punishment & coercion by one civil disputant party. Frequently the sole platform is dubious governance documents.

Since May 4/5 2001 Ontario's lawful compliance alternative in section 134(5) has allowed the amounts of such 'actual costs' - but not the liening for such - instead to later be skated onside as Additions to unit specific expenses. That's IF a section 134 Compliance Order gets ultimately issued by a civil judge. Those 'actuals' are subject to challenge themselves.

In "Temideo" (sic) , a Compliance Order was issued. But here the arguably voodoo $ 1700 LIENS themselves are left in place.

Lawful charge backs are only legalized by the likes of The Condo Act 1998 's Sections 92, 98 & 105. Or section 134(5) for actual costs to 'obtain' a court order of damages or costs.

So does that skate onside the use of a pre-litigation LIEN whether or not for threat letters ? Or leaving it intact on title ?

Summary :

Cross – applications to halt noise disturbances including by terminating the unit owner's lease to the alleged disturber ( either daughter or daughter in law of the unit owner & such owner’s challenged adult grandson also being an occupant ). The unit owner conversely applies unsuccessfully to strike down an apparently voodoo LIEN on ‘challenge’ grounds that such seem to have been derived merely from governance documents.

1- If the LIEN is ultra vires, one looks in vain for whatever rationale to show to the appeal court or public ?

2 - Terminating a Lease without the legislated opportunity to rectify ?

Without citing either the Condo Act 1998’s section 134 nor the 134(3) preconditions for judicial termination of a residential unit lease, the judgment’s wording even appears to discuss it as if somehow having a judicial discretion whether or not to terminate a condo unit’s lease without those expressly legislated pre-conditions !

Did the judge even read the Condo Act 1998 which interestingly is uncited ! ( The judgment further spells the lien-challenger's surname in two different ways, as well the noun 'lien' on one occasion ).

"Niagara North C.C. # 6 v Temideo (sic et al) 2017 ONSC 897" issued Feb 7 2017 http://canlii.ca/t/gxch8
(Geneva Court No 6 - 198 Scott St St Catharines, ON

satellite map suggests 5 storey midrise
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#18683
Voodoo FINE or U.S style Rule & Bylaw 'INDEMNIFICATION charge back' ? 2017/03/01 12:08  
( legal articles start to appear ).

Whether due to the judgment's contradictory spellings of the lien challenger owner's surname, what seems the first review unusually NEITHER IDENTIFIES THE JUDGMENT NOR CONTAINS ANY LINK TO IT.

The Feb 22/17 article is silent about the lien LEGALITY issue as centrally challenged by the owner 'Ms Temedio' or 'Ms Temideo' whichever. Its focus instead is :

1- neighbour v neighbour disputes, and

2 remedies against tenant disruptors.

Feb 22/17 R Escayola LLB Gowling WLG Ottawa : “Can Noise Complaints Lead to the Eviction of a Condo Tenant ?" http://condoadviser.ca/2017/02/can-noise-complaints-lead-to-the-eviction-of-a-condo-tenant/condo- law-blog-Ontario
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#18691
CCI series:CCI Director/lawyer explains her legal basis for LIENS derived from governance docs alone 2017/03/11 19:33  
1- Oct 27/15 “Condominium Liens” CCI Series
https://www.youtube.com/watch?v=WOJ0SpJe_to

The expertise is provided by Ms Maria Durdan LLB ( Simpson Wigle ) identified as BoD member CCI Golden Horseshoe - likely includes St Catharines above

Quoted in entirety & verbatim as to grounds of liening, such apparently ALLOWING fee-addition COMMON EXPENSES to be generated solely out of site-specific MERE GOVERNANCE DOCUMENTS ( as in 'I better look somewhere other than the Act for authority ') :

“Under the Condominium Act corporations have an automatic right to register a lien against a unit in the event that the owner is in arrears of their ( sic) common element fees.

Keeping in mind that the common element fees are not only comprised of the monthly common element amount but also any additions which are permitted pursuant to the condominium corporate documents, such as insurance deductibles . . ..”

( zero reference at all to such needing an express platform in the Act like sections 92,98 105, 134(5) )

Thus : unilateral civil penalty Fee Additions unilaterally imposed without appeal, set by Board based on its adjudication of facts & contents of its possibly voodoo documents What could be possibly be wrong with that concept ? Well . . .

2 - At that same CCI site : A single & still unanswered Comment verbatim ( as stated posted “10 months ago" presumably May 2016.)

IF the commenter is telling the truth, one guesses she got liened by being a complainer ordered to pay to receive unsolicited 'threat letters' after she beefed about tree removal :

“Last year in the winter of 2015 I had a lien placed against my townhouse unit not because of arrears but because the property mgmt. placed this because I made verbal complaints about a company that , in my view, improperly and unnecessarily , removed 4 trees from the common area.

BTW, I was not and have not been, at any time in arrears.

This makes it even more concerning as to why property mgmt. went forward on this. The property mgmt. stepped up and tried to intimidate me because I spoke up as a representative of the other condo owners .

It was made very clear that speaking up and having a different opinion of maintenance needed at this condo complex was completely unacceptable.

It was also clear that this property mgmt. did not like their control of how this complex is run.

This is not the first time that a lien has been placed in a similar situation.

Do you have any comments about this please ? Thanks. " unquote

3 As of March 11 2017 apparently no one at all - from CCI nor anyone else - has answered their questioner. ( Given the message, what should they say anyway ? ). Nor am I in a position to directly do so, because I refuse to join the high risk stiff like FB ).

Accurate or not, just another illustration why some U.S. states limit and even ban such lien usages, limit their quanta and/or subject them to elementary due process.

May the Gods help property & civil rights in Ontario. Gotta hope the Tribunal subjects this stuff to scrutiny.
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#18915
Owner challenges costs incl. FINE / purported 'INDEMNIFICATION charge back' N.N.C.C.# 6 v TEMEDIO 2018/12/14 12:52  
( This is not legal advice. It's a cautionary tale about how much some sort of disability can be allowed to disturb before triggering expensive consequences. )

Dec 3/18 Quanta-challenging UNIT OWNER Ms. Temedio gets mostly whacked in challenging how much of the condo corp's legal costs she should pay.

The condo corp's total $ 84.9 K challenged costs are cited to include $3,300(at Jan/15) for extra-legal unit-specific "charge-backs" interestingly not yet supported - IF AT ALL - by the still unimplemented 'quickie deadline' challenge changes to Ontario's condo law.

This "mixed outcome" latest discloses that the St Catharines Ontario condo corp itself further incurred at least $ 81 K in litigation costs quashing disturbances linked so far to the unit's occupants a challenged adult & his caregiver !

( Yes, its additional small stuff. But throughout the judgment the venue is bizarrely misspelled "St CathErines" ( sic ) as opposed to the actual spelling ST CATHARINES ! In fact it's misspelled ALL SIX TIMES IT APPEARS between paras 39 to 45 where a venue change is refused. This ain't merely a typo. )

( Background : After complaints, the condo corp had primarily sought a full expulsion order regardless of any disabilities pleaded by the occupants. In 2017 the alleged disruptor occupants / vicariously the non-resident family-member owner were jointly hit by a Behave Yourselves Court Order. A later appeal by owner Ms Temedio is stated to have been launched but to have failed. )

1- "Charged back" pre-litigation, the $ 3,300 in challenged condo costs include for "Behave Yourself" threat letters targetting the occupants, who were the owner's challenged grandson & daughter-in-law caregiver to the owner's grandson.

The $ 3,300 pre-judgment charge back stuff neither gets review as to basic legality ( nor does the judgment accept the challenger's analogy to mortgagor protections claimed derived from a condo act lien power provision ).

Is it inappropriate or too late to question the basic legality or legal basis of these charge-back threats lacking a statutory basis ? Only derived from site specific governance documents ? And fortressed as in : "You willingly bought into this. Now suck it up !"

Should lower courts even dare to challenge freedom of covenanting ?

Both aspects got butt-kissing deference for governancers in Ontario lower courts all the way up to Canada's Supreme Court in the Beach of Pines bigotry covenant war
? Had Ontario's lower courts done so 1948-51, the determinant would have been that "WHITE GENTILES ONLY" was not a property use covenant. It was ruled NOT capable of running with title ( as applied to narrowly strike down the bigotry clause prior to statutory outlawing ). Those lower courts also arguably ignored the earlier Drummond Wren.

Just for the record here, with unit-specific fines ( "additions" ) STILL shown at the province's e-laws website to be not even implemented at Dec 14/18, did those pre-amendment pre-judgment "charge backs" onto the unit, even lawfully constitute "costs incurred" to obtain but not enforce the section 134 Order ? Would illegality be a "special circumstance" ?

Were these just bogus voodoo FINES of the type widely misused particularly in thousands of U.S. wild west communities ?

If so these would be arguably site-specific (local) extra-legal Fines / threat letter charges that had been added - maybe even "leaned" ( sic ! in an earlier judgment ) - onto the unit's common expenses BEFORE seeking & obtaining the Feb 7/17 sec 134 Compliance Order that disruptions must cease.

Held failing to establish "special circumstances" the owner here gets the door slammed on legality of those unspecified "charge backs" originating from site-specific documents.

2 - Further, were the otherwise legitimate 2017 genuinely legal costs awards, correct as to the amounts claimed incurred by the condo corp to actually obtain the 2017 Order ?

The owner is also held to fail establishing "special circumstances" to trigger assessment of $ 52 K claimed incurred in genuinely & directly obtaining the 2017 Compliance Order.

3 - BUT the door is at least opened timely for review of additional $ 30 K claimed incurred by the condo corp to defend a subsequent appeal.

Thus the judge cites "mixed success" between the adversaries .

Temedio v. Niagara North Condominium Corporation No.6, 2018 ONSC 7214 issued Dec 3 /18 http://canlii.ca/t/hwf4h
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