This again is NOT legal advice.

( update Dec 13/19 : Buyers/condo corp again loose now before Ontario's appeal court, in attempts to introduce Oppression remedy to attempt override compulsory arbitration clauses in Contribution Sharing side-agreements. http://canlii.ca/t/j3xsq )

* *

ONSC Ontario Superior Court of Justice 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

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

Not legal advice, as usual.

The alleged unfairness / oppression claims against the developer - in late 2019 as ordered by ONCA Ontario's Court of Appeal http://canlii.ca/t/j3xsq - had been channelled back into arbitration.

But the claimants later have come to Superior Court challenging a self-ruling by the arbitrator that he has jurisdiction to resolve the alleged Condominium Act 1998 section 135 Oppression claim.

Unfortunately for them, in the interim ONCA has addressed the issue in a different decision ordering other section 135 oppression claimants to follow the arbitration route rather than as of right to Superior Court. ( https://canlii.ca/t/jg448 )

So this latest does exactly what ONCA decided in that other dispute. ( simplified : that section 135 is permissive , not mandatory )

An interesting footnote from the civil judge is that the oppression claimants st least twice previously had chosen to seek their remedy in the TORONTO district of ONSC.

That's instead of in the Eastern District ( Ottawa area ).

Now why might they want to avoid raising their claim in Ottawa ?

Leeds S.C.C. # 41 v. Fuller et al 2021 ONSC 4370 issued June 17/21 https://canlii.ca/t/jgh1h

Not legal advice as usual.

SIX YEARS AFTER SEEKING RELIEF IN THE TORONTO JUDICIAL DISTRICT instead of Eastern Ontario, STILL STRUGGLING WITH ARBITRATION ( as ruled contracted ) is the oondominium corporation component of a still incomplete BROCKVILLE WATERFRONT "mixed use" project.

It's a scenario - or at least widely kvetched to be - repeated widely. Leeds S.C.C. # 41 has alleged developer oppression and disputes the S.F.A. Shared Facility Agreement.

SO NOW at the end of the sixth year of litigation & arbitration, updates have arrived in the form of a pair of Superior Court case management pronouncements.

The process has continued within arbitration previously ruled to have been binding by contract.

The condo component has been refused further judicial intervention to force certain disclosuring / ? "fishing for sin". Oppression claims etc will be left dealt with by the arbitrator . . but the condo corporation component fails trying to force certain answers which it claims are needed to do exactly that !

Whatever the merits, arguably a cautionary tale for living with what the judicial system says you contracted or relied on.

And the critical general need to be sure you diligence with competent counsel working for you as a buyer within a complex scenario marketed to you . . .

Leeds S.C.C. # 41 v. Fuller et al 2022 ONSC 3938 issued July 4/22 https://canlii.ca/t/jq2rk

Leeds S.C.C. # 41 v. Fuller et al 2022 ONSC 4902 issued Sep 6/22- DIVISIONAL PANEL https://canlii.ca/t/jrrk2