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#18870
KINGS LANDING massacre : JUDGE USES COSTS TO PUNISH CLARITY SEEKERS - Furr v Duhamel 2018/05/18 10:48  
An Ottawa judge known for applying some no nonsense solutions to some high profile condo disputes, has severely punished several urban Building Scheme owners who dared to challenge some arguably dubious Building Scheme decisions.

This is the most recent of three adjudicative outputs involving issue-handling at a non-condo luxury townhouse Building Scheme on Ottawa's Rideau Canal. Too bad voluntary mediation never occurred. Too bad arbitration as covenanted didn't get triggered.

( CROSS REFERENCE addendum Dec 19/18 : another Kings Landing topic “Building Scheme REVIEW COVENANT survives challenge by FLAGPOLE & ROOFDECK changes KINGS LANDING” http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18917&catid=2 )

Built in 1998-9 Kings Landing faces green space, historic canal activity & the Federal precinct buildings.

Besides the irony of this fabulous location, is the ironic state of Building Scheme adjudication in Ottawa itself. The Ottawa area had played a significant role behind the Province's legislative evolution of condominium development models. And at westend Sherwood Drive its McGregor et al v Boyd Builders ( 1965 ) had been classic Building Scheme adjudication.

The EVOLVED 1960s new condo models were respectfully more friendly to governancers & investors than the comparatively Wild West of the Building Scheme model with roots in the 1700's and possibly earlier. In the condo universe, NO Positive Covenant Rule would require transmissibility ( from Lot owner to next Lot owner ) of obligations to contribute money or labour. In the condo universe, NO marketable record title formula - as now authoritatively articulated - would start computing statutory expiry of each Scheme ! ! Howsoever weak under condo law the 1990s consumer protections & developer restraints, they were not applicable to Building Schemes where there have been almost none.

Until May 4 / 5 2001 condo development models were not clearly available for townhouses - where not yet built and whose buyers wanted little or no condo corporation involvement in their private physical assets. No vacant ( bare land unbuilt ) stuff. No Part 10 "come & join the party later" stuff. Until expressly legislated, vacant land condo models would be compromised / require declaration amendments etc . . . The "Building Scheme" model predates that legislative problem or complication.

Kings Landing townhouses themselves are private and part of a cross-covenanted Building Scheme ( Note that there happen to be ownership-shared common lands ). These townhouses are NOT technically subject to Ontario condo law. They are not genuinely statutory condos.

Technically each Kings Landing private townhouse is what classic Building Schemes termed a "Lot" or Plot within a lawful Building Scheme secured by one or more reciprocal restrictive covenants on title.

The ( master reciprocal ) COVENANT ON TITLE

The reciprocal cross-covenanting - a process with wide variations essential for every genuine Building Scheme - here is shown on title by a document entitled “ NOTICE registered Dec 24 1998 as # 1172030; Ottawa Carleton Land Titles Division" .

It's NOT a condo Declaration package, but ? due to skillset issues ? the label "Building Scheme" or general scheme of development, appears nowhere nor within the adjudicative outputs here ! . . . Just like the bizarre local judicial botch-up eventually overturned by Ontario's Court of Appeal in a no-brainer but different 2005-6 local Positive Covenant dispute . . .

In an outrageous affront to property & civil rights, such Kings Landing ( master ) Covenant even purports to try to illegally contract the Scheme out of the remedial availability of Ontario's Partition Act, R.S.O. 1990, c. P.4 https://www.ontario.ca/laws/statute/90p04 . Partition is an emergency escape hatch for Building Scheme owners & investors alike. That Act does not show any legal "contracting out" possibility !

THE ISSUES

The central - but not sole - dispute, is whether 17 of these 60 or 61 Lots' boundaries contain common land works ( fence & retaining wall ) and whether such are entitled to reserve funding from ALL owners. ( Wouldn't a boundary survey help ? If 100 % covenant amendment would be necessary to definitively skate that issue lawfully onside, were the consents sought ? And why not ? But this is the Wild West. )

( addendum : Could periphery fencing - otherwise on private lots - here be a bona fide general expense burdening ALL owners ? Not just a burden on each periphery owner ?

Well this ain't legal advice & not even Canadian : BUT just for the record, English & Welsh adjudications have left open whether a Building Scheme developer's covenanted right to "dispensation" - to issue covenant variances - necessarily invalidates the integrity of a Building Scheme. Arguably it's widely getting seen as NOT a conclusive destroyer of Building Scheme scenarios requiring identical cross covenants . . .

But after a 2016 EWCA biggy, such integrity better arrive with "clear pointers"!)

The governancers argued the $180 K works were entitled to be treated as common lands obligations despite the absence of such being identified in the the master covenant on title. The governancers purported to action a special assessment against ALL 60 or 61 townhouses.

Two sets of owners challenged such and withheld a corresponding apportionment of arguably unlawful common charges.

In retaliation their land titles were subjected to uncovenanted and arguably unlawful condo-type liens.


The partial withholders' lenders were even "notified" ( put on notice hardball-style ) without a master covenanted authority that for governancers might have otherwise validated or ratified the emerging civil wrong of intentionally interfering via third parties !

There were the usual wars over stakeholder access to documents, a dispute here even castigated against the information-seeking stakeholders ! That judge even castigates the clarity-seekers for NOT counter-disclosing their own legal counsel's review of the master Covenant ! That ain't even in Ontario's condo law ! !

Doesn't that sound like some of the whacky U.S. jurisdictions, where some of such stuff is - to the contrary - legal and even supported by HOA master covenants .

Some other issues also raised legal vires problems.

Is it really good faith ? OR "We're unpaid volunteers ! . . . We make our own rules or hunt selectively for governancer-friendly advice. . . . So anything we do is OK, even if illegal. . . . There's a good chance that deep common pockets will let us get away with it ! Legal or not, this may be a zone of wretched backwardness when it comes to Building Scheme law ! " So . . .

Eventually as a scorned minority these objectors had to seek this judicial help.

And what help they have had ! !

( Albeit largely unaddressed by the latest judgment, other legal issues should have included authority to purport to apply Condominium Act punishments, condo type Liens, alleged Power of Sale actions and threats to lenders. Also limits on judicial discretion to punish boat-rockers including for illness delay by their counsel. But not what arguably includes dubious use of punishment weapons purported / attempted importable from legitimate condo law. )

To summarize, the landscape retaining wall & fence issue asked : were these lawfully common assets ? Did the covenant legitimize ALL stakeholders funding their replacement or repair if they are not common property ?

Ontario - once upon a time . . .

Ironically the godfather of Ontario Building Schemes ( I live in one such ) in 1913's Lorne Park lower court reference, addressed a central issue of what is "common land".

The late Ontario justice William Edward Middleton answered that question with a fluid, absolutely dazzling application of the 2 then-recent English decisions which until 1979 & 2016 were the Gold Standard of English/Welsh/Commonwealth Building Scheme jurisprudence. Middleton ( 1860-1948) was appointed to a predecessor of today's Ontario Court of Appeal.

Middleton adjudicated leading Building Scheme litigation as well as the wild Depression era Baby Derby & corn flakes wars disputes.

Middleton's biography characterized him as setting a high standard of courtesy & civility.

He did not live to see the ( Beach of Pines Building Scheme ) bigotry clause outcomes below Canada's Supreme Court.

He might ( ? ) not have been impressed with this latest outcome.

The Furr v Duhamel legal outcomes so far

3 - Furr v. Duhamel, 2018 ONSC 1780 issued April 4 2018 http://canlii.ca/t/hrbqm

2 - Furr & Lundgren v. Duhamel 2017 ONSC 5358 issued Sep 8/17 http://canlii.ca/t/h5vct Abandoned by Dentons LLP , the lead Applicants were S.R.L. in front of Madam Justice O’Bonsawin, who refuses to let Dentons LLP skip out from representing them . She ain't the problem.

The unusual & undeferred “Costs Thrown Away” interim punishment Aug 2/17

1 - Furr v. Duhamel 2017 ONSC 4623 issued Aug 2/17 http://canlii.ca/t/h59c8 Interim “costs thrown away” award ( plaintiff’s counsel illness) : xcrpted [18] " . . . For these reasons, I conclude that it is appropriate in the exercise of my discretion to award the Respondents their costs thrown away in the amount of $ 23,500.00 inclusive of HST

This amount is proportionate to the amounts claimed by the Intervener who had to devote much less time in preparation of the hearing. The Applicants shall be further responsible to pay the costs of the Intervener which I fix in the amount of $ 2,260.00 . . " - unquote
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#18904
$ 145 K COSTS awarded AGAINST Building Scheme critics - Furr v Duhamel 2018/10/06 02:22  
“Decsion (sic) on costs” : ( ? what's a "Decsion" ? )

Oct 5/18 AGAINST plaintiff critics & arms-length critic Intervenor is an award of $ 145 K legal costs to the Building Scheme governancers. ( Its allocated $ 117 against the Furr group critics & $ 28 K against intervenor. )

( Losing their appeal for judicial review, the critics will also have to suck up their own legal costs & live with backlash. )

Governancers had gobsmackingly claimed actual defence costs of $ 321 K in a bitter dispute largely about whether peripheral walls & fences on private lands could receive disputed general funding without an owner vote or contracted platform ! ( Is it contractually validated largely by "insiders" later claiming their mere beliefs skate everything onside later ? This seems to say so. )

Hadn't the central disputed issue been the legality of a $ 177 K project to spend common funds on arguably private lot peripheral terrain without at least triggering a general owner ratification vote of an "alteration" ?

Yes there had also been "bad faith" allegations. And some withholding of the disputed surcharge contributions ( upfront & ongoing special assessment-type surcharges for the disputed work ) .

With governancer counsels at times arguing on challengable grounds from formal Ontario condo law, this whole scenario's been without a legislated governance platform like Florida's chapter 720 . . . Is this mess where critics really need to be nailed ?

Nor do the judgments seem to even show the familiar terminology - much less the analysis - associated with traditional "Building Scheme" & property covenant adjudication at such as EWCA & its predecessors . . . :whistle :

This outcome's a matter of serious unease to me as a Building Scheme owner ( albeit not in Ottawa ) : why not even a reference to stuff like this from England ( & U.S. HOA disputes ) as a principle to resolve ambiguity of covenanted burdens :

Zhang v. Davies, 2018 BCCA 99 issued March 16/18 http://canlii.ca/t/hr1n1 citing Anderson v Dickie 1915 House of Lords :

" . . .[12] It is not a matter of resolving the ambiguity. A restriction on the use of land must be clearly expressed.

If ambiguity exists, it is to be resolved in favour of the free use of the land. The principle was stated in Anderson v. Dickie (1915), 84 L.J.P.C. 219 (H.L.) by Lord Dunedin at 227: “ . . . Far earlier than this it had been held that all conditions restricting the use of land must be very clearly expressed, the presumption being always for freedom. “

see also Anderson v Dickie 1915 H.L. as cited by B.C.Supreme Court in Jabs v Good BC 2009 http://canlii.ca/t/22qv8 ).

Were the disputed burdens even supported at all within the master ( "Declaration type" ) 1998 Agreement on title ? Answer : It's silent about the disputed installations over-riding presumptive private unit ownerships on which situated.

Hardball ? Where did the threatened phantom LIENS & threatened POWER OF SALE come from ? What about the phantom mortgagee pressure ( 3 rd party interference Notices ) against the critics ? They're NOT even in the Declaration-like 1998 "Agreement" on title ! Not bad faith ? ?

Respectfully, should critics seeking legal correction have instead been whacked like this ? . .

This of course ain't legal advice.

* *

$ 145 adverse costs :

Furr v. Duhamel, 2018 ONSC 5785 issued Oct 1/18 http://canlii.ca/t/hvdf6
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#18905
KINGS LANDING - COSTS PUNISH CLARITY SEEKERS - Furr v Duhamel 2018/10/09 12:24  
Respectfully, a governancers' good faith shelter ( to punish these clarity-seeking critics ) is a VERY unfortunate longterm scenario here.

How far should that "shelter" be stretched in condo / Building scheme disputes or wider ?

It's even more gobsmacking that this occurs within a quarter mile of U. of O's LAW SCHOOL & the area's main civil court. . . . knee deep in lawyers & ADR . . .

( How will this community & skillsets to date, eventually handle the covenant's statutory expiry under M.R.T. provisions ? That's regardless of purported perpetuity attempted within the 1998 Agreement. The calculation of this expiry period is now clear . . . )

1 Formal Judicial Clarification

For as much as the full 20 years of this Building Scheme, successive Boards appear to have resisted efforts to get formal judicial clarification - even judicial amendment ? - of the 1998 Co-Tenancy Agreement ( The critics reportedly urged such bigtime but in vain. So they bravely stepped forward to seek it themselves. And what punishment so far . . )

Nor privately to seek the 100 % owners consents needed to amend the 1998 non-condo covenants like any other Building Scheme without a covenanted amendment formula.

Nor apparently to even try to help certain private unit owners ( with eastside shared common fences ) to get the still active project developer to remedy whatever their roadside grade / retaining wall problems ?

2 A lesson all of us ? Clarification seekers punished

Instead these private clarity seekers end up whacked with bigtime costs.

And titles still arguably slandered with - at best - arguably questionable covenant support. And threatened with uncovenanted Power of Sale action

And likely to be backlashed BIGTIME by some other owners after unawarded defence $ 150 K costs will bounce back.

And the judgment apparently dismissively leaves the critics' property titles still encumbered by "Unregistered Estate" ( ! ? ) Notices in the absence of any covenanted nor statutory lien power !

Like the uncovenanted "Unregistered Estate" Notice and the warning to at least one critic's lender on title, THIS ? was "good faith" by the governancers ?

3 "Unregistered Estate Notices" ! wow ! ( Note that the 1998 Declaration-like Agreement contains NO lien provisions, nor does Ontario have a specific HOA governance law like some U.S. states. If neither by state law nor site-specific covenant, U.S. HOA liens are generally illegal ). WOW !


Excerpted from the judgment :

“ . . . .[145] On December 30, 2013, and January 20, 2014, Furr received demand letters from X X X LLP on behalf of the Committee, demanding payment of the special assessment and additional monthly assessment plus legal costs and threatening registration of notices under section 71 of the Land Titles Act, R.S.O. 1990, c. L.5 (“Section 71 Notice”) and the initiation of power of sale proceedings.

The January 20, 2014, letter threatening Power of Sale was also sent to the Applicants’ mortgage lender, - - - Bank. . . . “

4 The section 71 Notice is derived from Ontario's LTA Land Titles Act RSO 1990 c L.5 http://canlii.ca/t/536f9

. . . . Protection of unregistered estates

71 (1) Any person entitled to or interested in any unregistered estates, rights, interests or equities in registered land may protect the same from being impaired by any act of the registered owner by entering on the register such notices, cautions, inhibitions or other restrictions as are authorized by this Act or by the Director of Titles. R.S.O. 1990, c. L.5, s. 71 (1).

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (1) is amended by striking out “of Titles”. See: 2012, c. 8, Sched. 28, ss. 45, 98O

Agreement of purchase and sale

(1.1) An agreement of purchase and sale or an assignment of that agreement shall not be registered, but a person claiming an interest in registered land under that agreement may register a caution under this section on the terms specified by the Director of Titles. 1998, c. 18, Sched. E, s. 129.

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (1.1) is amended by striking out “of Titles”. See: 2012, c. 8, Sched. 28, ss. 45, 98.

Effect of registration

(2) Where a notice, caution, inhibition or restriction is registered, every registered owner of the land and every person deriving title through the registered owner, excepting owners of encumbrances registered prior to the registration of such notice, caution, inhibition or restriction, shall be deemed to be affected with notice of any unregistered estate, right, interest or equity referred to therein. R.S.O. 1990, c. L.5, s. 71 (2).

Note: A caution registered under section 71 or a predecessor of that section before June 16, 1999 ceases to have effect five years from June 16, 1999, if the date that the caution ceases to have effect is not specified in the caution or by subsection 128 (4) of this Act, as it read immediately before June 16, 1999, or if there is a date specified in the caution or by subsection 128 (4) of this Act, as it read immediately before June 16, 1999, the earlier of that date and five years from the date of registration of the caution. See: 1998, c. 18, Sched. E, s. 151 (2).
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#18906
SO THIS WAS GOOD FAITH ? 2018/10/10 12:07  
Is a client responsible for legal measures taken in its behalf ?

1 - That question is worth consideration amidst this litigation in which the clarity seeking plaintiffs have been hit for $ 23,500 in "costs thrown away" as awarded to the respondent governancers in August 2017.

( Applying such judicial discretion looks justifiable where delay is not caused by the civil justice system itself. eg no available court facility. )

But due to some sort of health reason this delay was the inability of the clarity seekers' former counsel to proceed after a previous delay. Is it defensible here ?

2 - Given that outcome, conversely did the respondent governancers keep their "good faith" shield despite some legal measures it chose to take itself. ( They weren't : "Our counsel seeks delay for personal health reasons." ) :

A - REFUSING pre-litigation to take part in an application for judicial clarification / resolution of some of the Covenants' contentious limits ? Did this Board grasp much about Building scheme law ?

B - without a platform of covenant nor U.S. style Building Scheme statute, THREATENING Section 71 Notices onto the critics' legal titles ! ?

C - ACTUALLY COPYING such threat to one of the critic's LENDER on title ! ?


Threat to use s 71 as a Building Scheme lien platform

Section 71 9 LTA 1990 ch L.5 is a remedy or "protection" literally legislated for asserters of (sic) "unregistered estates".

But as a mere civil claimant of an unproven civil claim, how could the governancers have any "estate" ? ? Just for starters they are neither a buyer nor seller under some form of real property purchase agreement.

Nor were lien rights even within the 1998 Covenant document. What unregistered interest is the governancers ? ( Presumably thus : citing Section 71 of LTA )

And spreading "third party" to one critic's lender . .

3 - The "good faith" shield appears to be held to override the otherwise unaddressed Plaintiffs' ( para 77 ) specific complaints/remedies sought as to title- slandering & what might have been argued as a form of 3rd party contractual interference.

I am unable to find discussion of those & some other specifics . .

Or were they addressed against the clarity seekers by what is chastised as "Their communications consist of a catalogue of insinuations, deadlines and demands ( para 173 ) ?
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#18907
the literal text of the Covenants on title 2018/10/13 11:05  
In 2016 - an ocean apart - decisions by senior appeal courts held that overriding the specific wording of Building Scheme covenants, can be fraught with risk.

1 - Ontario's Black v Owen eviscerated a Divisional Court trip respectfully into the Twilight Zone.

A shining Small Claims Court decision had correctly applied the determinative Positive Covenant Rule as repeatedly accepted by Canada's Supreme Court & by ONCA including major confirmations.

But 3 out of 5 lower judgments over years of the Black v Owen dispute, had pursued a bizarre misunderstanding of Building Scheme jurisprudence.

The overthrown Ontario judgment had even shockingly castigated the reasoning of the Small Claims Court Deputy Judge who was proved totally correct ! ! see cafcor item http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18737&catid=2#18737

2 - Issued almost concurrently the Court of Appeal of England & Wales reviewed over a century of Building Scheme judgments.

In that immediate English dispute it overthrew repeated leaps of reasoning & unsupported reliances on extraneous conclusions reached where lower courts had failed to rely on literal contracted text of Building Scheme covenants !
Or amidst reams of documents may have misunderstood the basics.

The asserted century-old covenants in that decision, actually had prevailed against other challenges as well as in the lower court against the successful appellant. But they were voodoo.

For English ( & arguably Ontario deference in decades of appeal court decisions ) EWCA went on to lay down criteria for Building Scheme adjudication at odds with both judicial activism & overly-imaginative reliance on extraneous alleged "contextuals".

It raised the bar against allowing lower courts to risk wrongly overriding what the Building Scheme parties literally contracted into ( or what was claimed to be derivable magically from a particular judge's view of "contextuals" ).

Thus an ocean apart both overturned judgments were found weak on credible / "hard" real property law. They arguably had emerged from conclusions held derived too heavily from conjecture or extraneous treatments including such as "historically" by unqualified ( mis- )governancers. Or by God knows who.

Some of the overthrown English judgments hinted at the risks of some sort of stubborn judicial "personalization" or sense of alternative societal view arguably not derived ( or of uncertain sustainability ) from the literal covenant texts ( howsoever well or poorly expressed may have been the disputed literal covenants ).

One suspicion is that the Building Scheme body of law may be so complex as to exceed the skillsets of some lower civil courts.

Or that there can be triggered a gut-driven" emotional lashing out of frustration against either party but frequently against the weaker adversary. Or effectively to ignore much or all of the weaker's legal argumentation as if hearing only one side of the argument.

But generalization is arguably less than fair.

For example the Toronto Small Claims court judgment in Black v Owen - as restored by ONCA in 2016 - was excellent. And Ontarian William Edward Middleton's 1913 judgment in re Lorne Park was brilliant . . . innovative . . . well researched . . . fluid in expression . .

3 - This is again not legal advice, which should be sought from insured members of LSO. It does not necessarily apply to the immediate dispute here nor past adjudications of it.
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#18910
Kings Landing ALTERATION REVIEW COVENANT survives challenge by FLAGPOLE & ROOFDECK changes 2018/11/18 19:30  
Approximately halfway through its statutory FORTY YEAR legislated lifespan, the same Kings Landing master covenant has just survived a legal assault. Details to follow. ( cross-referencing addendum Dec 19/18
http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18917&catid=2 )

So I may have above written off the state of Building Scheme jurisprudence in my civil jurisdiction a little too soon.

This latest judgment by a 2017 Federal appointee - an experienced civil litigator - to ONSC's East Region, suggests that there may be another William Edward Middleton on deck.

She also correctly identifies this shared ownership community as a "Building Scheme".

And she quotes from one of Middleton's vintage landmark Appeal Court decisions ( albeit without personal identification of him as the judgment writer ).

No matter. She has done MASSIVE "heavy lifting" to update the enforceability of such covenants !

1 - What she has written at the very least will be picked up with GREAT INTEREST by B.C., Alberta & several other common law Provinces. ( B.C. had left Ontario in the dust for many years. But like England & Wales it apparently doesn't have an MRT marketable record title feature happily ticking down the lifespan of such real property covenants . . . )

2 - Middleton's electrifying century-old Ontario Building Scheme judgments appear to have helped vault him onto the predecessor to Ontario's Court of Appeal.

Will it help her accordingly ?
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