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#18828
$ 31 K punishment for PARTYROOM NOISE & ROUGH LANGUAGE : TSCC # 1462 v. DANGUBIC 2018/01/22 23:27  
A Toronto judge has summarily imposed - without continuing to formal trial of disputed legal issues & facts - that a Toronto condo owner owes almost $31,000 to his condo corporation for alleged party room noise & harsh language.

Arguably by some as judicial legislation to create a FINE-LEVYING power, this decision echoes several others. eg Feb 2017 “Voodoo FINE or 'Rule & Bylaw INDEMNIFICATION charge back' ? Niagara NCC #6 v TEMIDEO et al”
http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18683&catid=2#18683

And it is likely to be put to quick use. Not for example like the snowplow contract termination ruled in breach of contractual Honesty Duty ( see Directors Forum http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18823&catid=9 ).

The judge cites that a charge-back LIEN POWER - merely from governance documents rather than the Condominium Act 1998 - overrides the owner's ATTEMPTED ultra vires objections.

The override seems to be on the surprising mere grounds that the Plaintiff condo corporation assured the judge such is the condo law of Ontario !

And the judge notes that allegedly the owner had consented to such LIEN POWER by buying into a condo corporation without limits on a mystic tribunal-like power to unilaterally reach private findings of civil liability against owners it considers to be misbehavers. And to charge for warnings.

And had consented to be billed & liened accordingly even suspiciously outside the 3 month timeliness deadline of the Act. ( Stryk & Chris Kidney etc )

So this summary decision shows no evaluation given to the legality of private "fines".

Nor appears to show any attempt made by the judge to even confirm the condo corporation's time-shifting calculations to carry forward the 3 month retroactive lien timeliness from 2015/2016 events. Pretty large LIEN to tread water . . .

Is there any reference at all to M&A mediation, arbitration attempts ? Because the condo corporation did not seek a section 134 compliance order, statutory M&A is no hurdle. Nor post amendments would it have been compulsory now to attempt to trigger prior mediation / arbitration.

SO, said to have been SELF-REPRESENTED until the eleventh hour of this process, this owner is hit directly & indirectly for the following based ultimately on LIEN POWER to charge-back for private findings of civil liability by the condo corporation as some sort of private legal tribunal :

- Misbehaviour Charge-back Liens totalling $14,358.60 mostly for interest & legal costs applied to action $ 3,100 worth of "Behave Yourself" letters PLUS

- $16, 556 for all inclusive LEGAL fees & disbursements for this courtroom thrashing.

Total $ 31,000


Xcerpted :

" [1] The Defendant . . is not a good neighbor, and has misbehaved in ways which breach the by-laws of the Plaintiff.

He has used the building’s party room in an excessively noisy manner in violation of the other owners’ rights of quiet enjoyment.

He has also gotten into verbal confrontations with other owners, left obscene and aggressive voicemail messages for them, etc.

The police have been contacted by the Plaintiff in order to deal with some of this.

[2] The misconduct of the Defendant is baldly denied but, in reality, is not seriously contested by him.

He admits leaving the disturbing voicemail messages, he does not dispute in any serious way the noise complaints about the party room. . .

[6] The record contains uncontroverted evidence that the Plaintiff has in fact incurred the expenses for which it seeks indemnification in this way.

There is no need for a trial of these issues, as they are all readily established on the basis of written invoices and other hard copy pieces of evidence as well as affidavits already in the record.

The Defendant was aware of these provisions and through his conduct has brought these extra expenses on himself. . .

[11] Defendant’s counsel also submits that the lien was registered out of time. . .

[16] The Defendant . . . alleges that there is no valid debt owing to the Plaintiff, that the lien was improper, and that the lien and claim amount to oppression of him.

[20] If the lien is valid in the way that the Plaintiff says it is, then there is no issue left for the Counterclaim. . . ." - unquote

Disturbingly, this judgment's framework online incorrectly cites the long expired 1990 Condo Act not the 1998 Act. ( But at least its lien citations correspond to current numbering. )

For lien authority precedents, it also cites selective cosmetics, for example a dictum from Couture that manages to conveniently ignore the front & centre oppressive misuse of corporation powers & liens actually held there.

TSCC # 1462 v. Dangubic, 2018 ONSC 491 issued Jan 19/18 http://canlii.ca/t/hpvh1

"Legislation cited
• Condominium Act, RSO 1990, c C.26 " but it cites the later Act's lien sections.


Bottom Line

1 - "Not a good neighbour". Maybe even a crude boor or jerk whose party room noise really disturbed neighbours. Who knows ?

But is the disturbance now remotely commensurate to a $ 31 K whacking for an arguably dubious charge-back that turned several hundred dollars of likely some mere paralegal's word-processsed warnings, into more than $16 K ? !

And NOW summarily granted along with another $ 15 K in costs without requested formal trial of facts & significant legal issues attempted raised ? ?

Wider, IF boorishness & party room noise are a problem, wouldn't a Compliance Order - if sought & issued - have potentially better platformed a future contempt action & at least legalized charging under s 134 ( 5 ) ?

2 - Did the random allocation of courtrooms make this part-way SRL Self represented's punishment a very bad twist of fate ?

3 - AND whether or not properly "distanced" from the dispute, did the judgment even go so far as to IMPUGN the PROFESSIONAL COMPETENCE of the defendant owner's 11th hour COUNSEL by blanket citation of Mr Justice Laskin's guide to Summary Motion preparation ?
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#18852
Re:$ 31 K punishment for PARTYROOM NOISE & ROUGH LANGUAGE : TSCC # 1462 v. DANGUBIC 2018/04/14 03:41  
Wow!
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#18853
Re:$ 31 K punishment for PARTYROOM NOISE & ROUGH LANGUAGE : TSCC # 1462 v. DANGUBIC 2018/04/14 03:42  
Does CAFCOR have a position on this? Will it intervene?
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#18855
unease 2018/04/16 14:25  
Whether it's CAFCOR or someone else or the Province who should get involved, these troubling scenarios really affect more than merely the disputants.

If nothing else this Forum does at least shine a small light, howsoever weak.

"The only thing necessary for the triumph of evil is that good men do nothing".

But who exactly said so is unclear.
https://quoteinvestigator.com/2010/12/04/good-men-do/

Was it Dublin Ireland’s Edmund Burke 1730-1797 https://en.wikipedia.org/wiki/Edmund_Burke with no longer politically correct attributions like :

1770 : " . . . . when bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle."

Or John Stuart Mill 1867 : "Bad men need nothing more to compass their ends, than that good men should look on and do nothing."
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#18857
quick pickup for "Behave Yourself' letter charge backs & retro jugglling : TSCC # 1462 v. DANGUBIC 2018/04/17 12:27  
Fairly quick pickup for judicial upholding "Charge-backs" for Behave Yourself letters without prior section 134 compliance orders nor an Act anchor.

Respectfully, is described as "another helpful decision on the point."

( Will this judgment be appealed ?

The judgment's wording itself lacked any sign of juristic challenge for out-of-sight retro juggling. Just trust us about the calculations . . . (

ASK : just HOW LARGE would Mr. Dangubic's unit's regular, formulaic monthly fees have to be, for management to retroactively skate onside thirds of interest-excluded claims of $ 12,700 against an errant owner ? Would they be more than 44 k monthly ?

BUT the judgment's wording cites ZERO juristic challenge of that.

it's the same lack of juristic challenge that should have gone beyond purporting to apply a mere REASONABLENESS criteria about the charge-back vires for Behave Yourself letters. Wasn't the objection as to legality ?

Will this get appealed ? )


The article :


April 13/18 “Applying an Owner’s Payments to the Earliest Arrears” by well respected Ottawa condo counsel Jim Davidson LLB ( Davidson Houle Allen LLP ) http://davidsoncondolaw.ca/applying-an-owners-payments-to-the-earliest-arrears/

( See also Chris Kidney etc : Respectfully, don't run afoul of your condo corporation in Ottawa )
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#18860
Article predicts judgment helpful management tool for charging Behave Yourself letters 2018/04/21 16:50  
Always an interesting read, ACMO's Spring 2018 issue contains ( pg 45-47 ) lawyer DAVID THIEL's review of Mr not Ms Dangubic's dispute ( as well as the Lahrkamp vexatious litigant designation ) http://online.flipbuilder.com/ACMO/uccb/#p=45

Mr Thiel as to Mr Dangubic : “ . . This clear decision should be helpful to condominiums ( condo corporations ) when seeking reimbursement of legal costs from owners for compliance letters”. He explains (sic) that the decision confirms that a corporation may lien for legal costs merely relating to compliance warnings ( and may apply retro juggling as apparently without judicial challenge here).

He alerts managers to charge-back challenging changes . . .

See elsewhere at CAFCOR :“Will LIEN CHALLENGE CHANGES disadvantage owners targetted by condo liens ?” As if the above is not enough, in the short term the changes bizarrely even seem to introduce a TIGHTER TIMEFRAME for Small Claims lien challenges. The Tribunal isn't yet accepting such itself except for records access. How does this sort of change address unbalanced consumer vulnerability ? And aren't / weren't fines illegal ?

https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18693&catid=2
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