To the very short list of Ontario s 135 Oppression rulings has been added an award of $10 K and a judicial Order that a 20 unit waterfront condo corporation honour its commitment to issue a section 98 Agreement.

After years of ( held ) disregard of S 98 process ( for approval & documentation of common element changes sought by individual unit owners ) a Muskoka waterfront condo corp is held to have oppressed ex-Director Noguera & wife .

It is held to have oppressively breached arrangements to platform the Nogueras’ purchase of the adjacent unit and to allow opening of physical access through the common element wall.

With proper abstentions & conditions including a promised section 98 documentation process, the Noguera applicants had gone ahead with purchasing the adjacent unit ( without needing Declaration change; both units would remain discrete registered entities, the only change being arms-length identicality of both ownerships ).

To breach the common element wall between the adjacent discrete units, conditions had been resolved between the Nogueras & the condo corp.

Such included formal s 98 documentation – foolishly and carelessly continued ignored by adversaries until some sort of s* *t storm later – and potentially problematic restoration of common wall. Old habits may die hard. And the judge hears allegations of "evil" and "spying" . . .

( Apparently unaddressed for this covenant to run with titles, which subsequent discrete unit owner would fund & conduct the wall restoration IF units eventually return to discrete ownership ?

If the Nogueras eventually sell their adjacent, discrete condo units to non-identical buyers, will there be fireworks about funding the restoration ? ).

Yes . . . tons of loose ends . . . .

Court notes s 98 finally getting universally applied . . .

Bottom line : With finding of Oppression against the condo corporation, ONSC judge awards the victim Nogueras $10 K damages for that oppression and an Order that the condo corp issue them the s 98 authorization as historically agreed . . . .

Noguera v Muskoka C.C. # 22 2018 ONSC 7278 issued Dec 11/18 http://canlii.ca/t/hwj6w

Again not legal advice.

14 months after section 135 Oppression ( under Ontario's Condominium Act 1998 ) was held against a 20 unit Muskoka waterfront condo corporation, ONCA Ontario's Court of Appeal has DISMISSED that corporation's appeal of it.

And ONCA now awards $ 20 K in costs & disbursements to the defender victims of the upheld Oppression Remedy.

There are loose ends.

And the court revisits that the victims were accused of being "EVIL" ! !

And that the accuser President bizarrely purported to have some sort of legal authority to ACTUALLY FORBID the victims from using the ( common element ) waterfront path !

Sounds almost as crazy as some of the typical law-defying shenanigans of the wilder Building Scheme & owners association universes all over North America.

But gotta remember that these defendants had the huge power of Ontario's Condominium Act 1998 in their toolbox.

Is this what should be given unilateral voodoo weapons like un-platformed liens, title-slandering & voodoo chargebacks ?

Noguera v Muskoka C.C. # 22 2020 ONCA 46 issued Jan 27/20 http://canlii.ca/t/j4wx0

Again not legal advice. I can respectfully relate to the group dynamics here, living in a Building Scheme - not condo law - of similar waterfront environment.

To understand the Oppression & remedy in this Muskoka dispute, it may helpful to try to de-construct what the judicial decisions say factually happened.

Those decisions describe a multi-unit – maybe only 2 storey – Muskoka lakefront of merely 20 UNITS but with waterfront and some sort of management function in place.

It starts when two of Muskoka C.C.# 22’s four Directors heard their two other fellow Directors' request for partial de-partition of the common wall between adjacent units.

One adjacent Director was prepared to sell his unit to the other ( the Nogueras ) conditional upon the common element changes.

With whatever implication for fire-retardancy, rolling noise etc, the requested changes would contiguously link - but not legally nor technically merge - the units nor abbreviate voting rights.

During that Board vote the vendor proposer physically withdrew while purchaser-Director Noguera did not. Neither Director voted.

The remaining two members of the Board resolved to authorize the "linkage changes" including to perforate the common element wall on two levels only, one level to have closable doors. Internal changes included removing one unit’s kitchen .

Expecting followup by a formal section 98 Agreement for a permanent opening / de-partitioning on ground floor & a door-controlled opening on second floor, the purchaser Nogueras went ahead to complete the purchase relying on merely the Board Resolution.

Remember that the Nogueras literally thus accepted that the text of such approval Resolution ambiguously stated ONE particular Director’s desire to have the process reversed before either or both units would be resold. What affect could stating such single wishlist mean ?

As to “kicking eventual resale problems down the road", gotta remember that Section 98 expressly enures a lawful agreement binding current & future unit ownership.

( But will future local realtors & professionals manage to get this right without more mishigas ? For example which unit buyer may the P & S attempt to impose will be centrally bound ? What if there's defiant refusal ? Stay tuned )

Of course the corporation had been merrily ignoring section 98 for other past alterations elsewhere to the common elements . . .

Scenario later went into a Twilight Zone after – like numerous other Common Element changes – absolutely NO section 98 was issued to the Nogueras.

BUT then the Board began to demand the changes be reversed or halted . . .

The dispute arguably pushed the Corporation finally into retroactively negotiating & issuing lawful s 98 Agreements onto titles. . . Imagine how this widening mess from the past would play out in the group dynamics at this troubled site.

There must have emerged - against the Nogueras - bitter toxicity in sad contrast to the pleasant lakefront ambiance.

( And imagine what it will be like now ! )

Courts noted that the President accused Nogueras of being “evil” ( sic ). She bizarrely & illegally purported to personally forbid the Nogueras from using the lakeside path amenity claiming they had been “peeping” into units !

In Dec 2018 ONSC issued a section 135 Oppression ( rectifying) Order sought by the Nogueras. It ordered a section 98 Agreement issued and to include the one Director’s original wishlist to reverse the changes before resale. It awarded $ 10 K for general ( non-specific ) damage. Costs = ?

On January 27 2020 a corporation appeal to ONCA was dismissed. ONCA awarded $20 K costs to the Nogueras.

Noguera v Muskoka C.C. # 22 2020 ONCA 46 issued Jan 27/20 http://canlii.ca/t/j4wx0

Noguera v Muskoka C.C. # 22 2018 ONSC 7278 issued Dec 11/18 http://canlii.ca/t/hwj6w

UPDATE Feb 18/20

FIFTY THREE ( 53 ) years into Ontario condo law, some reviews still have to remind Boards of the need for elementary due process & fairness !

This is also GOOD ADVICE for Building Scheme associations particularly as they brittle-up and stray further from the rule of law ! !

Jan 28/20 "Condos Must Act Reasonably When Imposing a Section-98 Agreement" by: Graeme Macpherson ( associate Gowling WLG- Ottawa) http://condoadviser.ca/2020/01/condos-must-act-reasonably-when-imposing-section-98-agreement/condo- law-blog-Ontario


Feb 18/20 J Davidson LLB ( Davidson Houle Alllen LLP ) “Common Element Modifications by Owners – The Role of the Board” https://davidsoncondolaw.ca/common-element-modifications-by-owners-the-role-of-the-board/#more- 12837