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Will SANDYFORD PLACE ( W.C.C.# 96) become Ontario's SECOND TERMINATION by 80-80 VOTE ( s124 ) ? 2020/03/29 19:23  
( neither a legal nor architectural opinion )

A $ 5 Million November 2019 FOR SALE ad - placed by the Board of Hamilton's Wentworth C.C. # 96 historically designated SANDYFORD PLACE ( 1858 ) - plus some litigation & Tribunal appeals - appear to have triggered an alert G & M Globe & Mail article in late February 2020. It's entitled : " Eleven owners of heritage Hamilton condo building facing $ 3 MILLION repair bill "

Some background litigation & Tribunal outcomes add significantly to the backstory.

Comment was refused to the G&M by Sandyford Place's 3 person condo Board.

BUT the Feb 22 2020 article by G&M's Shane Dingman adds some interesting colour comment.

( Note : Reading such article requires a G&M subscription. OR requires finding it where apparently licensed one-shot to a giant U.S. online community association group ).

1 - Shane Dingman's G&M article also includes insights from a lawyer & a realtor involved in what is claimed to still be Ontario's first & only completed sale process using the Condominium Act 1998 's section 124.

Section 124 technically requires pre-approval by 80 % of units PLUS a CONSENT approval by 80 % of encumbrancers such as lenders. ( So yes, technically such 80-80 approval process requires a bifurcated "vote" & "consent" steps. )

Driven in 2017 to capitalize on re-development in Toronto's central core, the process required 80 % and 80 % dual approvals separately by owners & encumbrancers/lenders at Toronto's 27 unit 39 Roehampton. See : a prior CAFCOR ( Directors ) topic entitled “CONDOBUSINESS : 39 Roehampton complex sold by owner vote .

2 - But now at HAMILTON's downtown twelve unit SANDYFORD PLACE - an 1858 Renaissance Revival row of historically designated townhouses subject to exterior easement restrictions thank the Gods ( ! ), the immediacy is reserve short-funding.

The litigation & interviews suggest a Reserve Fund shortfall of $ 1.5 M to $ 3 M being faced by the 11 owners of the 12 unit community.

A quarter million dollars or more PER UNIT SPECIAL ASSESSMENT as an alternative, might be 'small change' by Toronto or Vancouver standards.

BUT in Hamilton it's significant for some longtime owners unable to personally qualify to borrow such EVEN IF Sandyford Place instead embraces a Borrowing By-law.

That's of course INSTEAD of an 80 - 80 process to try to terminate / sell the whole condo community under section 124 of Ontario's Condominium Act 1998.

TEN ( 10 ) unit owner votes ( of the 12 Sandyford Place units ) would carry the 80 % unit owner part of the section 124 twinned approvals unless judicial intervention occurs.

3 - Further it's unclear how much is grasped about the Heritage ( exterior ) Easement(s) thankfully on titles . Such easement ( & possibly other encumbrances & municipal demolition controls ) are available to SLOW DOWN or COMPLICATE a threat to Sandyford Place's heritage- designated 19th century Renaissance Revival architectural values.

But also to respect the years of community struggle & funding that won a "goal line stand" to halt demolition of remaining local examples of this impressive architectural style . It's not merely about "security of housing". Nor merely about 'seniors v investors contemplating re-development profits' .

Four decades ago donations had been pried from three levels of government, such culminating in a 1979 ( whether ? 1976 by a different source ) city purchase from prior owners seeking demolition.

To re-launch the structure on a hopefully viable basis, such was followed by installation of rearside elevator & balconies. ( Pictures show a square rearside silo exteriorly accessing a common exterior balcony for each floor. )

Then in 1984 after installation of HERITAGE EASEMENTS onto title, such reportedly culminated in the townhouse complex being relaunched as a private condo corporation. BUT was that arguably too shaky a re-purposing vehicle to protect what was held worthy of historical designation during some shaky political times . . . ?

4 - AND SO four ( 4 ) decades later, have the now short-funded condo owners respected the MULTIPLE stewardships ?

5 - Further a lawyer / longest owner / former President has lost an initial round of litigation claiming OPPRESSIVE UNDER-RESPONSE to the deterioration of the 162 year old building & its later vintage rearside elevator & balconies.

Same outcome at OHRT Ontario's Human Rights Tribunal with arguments that mere repairs to the sometimes inoperable elevator are short of reasonable "accommodation of disability" and instead require FULL REPLACEMENT ( along with balcony fixes, possibly $ 1.6 M or more of the reserve shortfall ).

Her fight to halt the Board's section 124 overture, raises a complication or deterrent to a Section 124 termination. Both appeals processes might have been seen as an alternative - albeit pricey - to passively waiting for the Board's Business Judgment to set the pace. But they fail so far.

More to come . . .
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Potential Buyers ( past tense ? ) facing HERITAGE DESIGNATIONS ? 2020/03/30 16:36  
With Heritage Easements on title how does an entire condo community get marketed ? Especially one also amidst some litigated dissent and a gobsmacking repair bill.

And one which had triggered a taxpayer bailout after a goal-line stand from the heritage community forty years ago . . . ?

1 - Given the impactS on an individual owner's interest, should an owner reasonably expect there be some sort of prior owner approval vote to even invite interest / to test the market ? Even if far from unanimous ? Or instead is it valid Business Judgement for the Board to just proceed ?

Anyway PRE-Covid19, Shane Dingman's Feb 22/20 G&M article is silent about such aspect. ( Was there a pre-marketing mandate from the owners : ? Have owners been yet given a chance to decide or take part in whatever the process & outcomes so far ? : None in the article except what the reporter was told by an owner/realtor no longer on the condo Board . . . .)

2 - Is the sale process alive ? ? the status of MLS # H4067734 ( $ 5 M; 35-43 Duke Street Hamilton ) ?

At time of interview the former Director is quoted to believe that the ( Nov 19/19 $ 5 M ) listing had produced a conditional sale. BUT that conditions on price and other issues were at interview date then "currently ongoing". ? Diligencing underway ? City of Hamilton involved ?

3 - What is Sandyford Place ( W.C.C. # 96 )'s heritage designations or protective cocoon from 3 levels of government ? ( Relevance : How much physical change if any would be allowed ? Is Sandyford Place ever again to be trusted to Ontario's condo model ? think : propensity for chronic reserve under-funding ? )

Three exterior plaques cite Ontario Heritage easement protection plus formal registration with Canada's Historic Sites and Monuments Board.

It's an unusual surviving Renaissance Revival multi-residence in the impressive "palazzo" style. ( What in 1984 became a 12 unit condo corp reportedly started as FOUR 3 story conventional fee simples. Later became stratified in 4 separate phases, some rented. )

Rationale for the designations, details & photos can be seen at“Canada’s Historic Places” :

and at

4 - From the English text of one of Sandyford Place's three exterior plaques - that of Canada's National Historic Sites and Monuments Board :


Built about 1856 at a time of rapid growth in Hamilton , Sandyford Place is a fine example of the housing then erected for the merchants of the period.

It is a rare survivor in Canada of the few row houses built for affluent citizens in the mid-nineteenth century.

The exterior design of pleasing proportions features a pavilion plan that helps to break the uniformity of such a long facade.

The competent handling of the stonework, ranging from the pickfaced dressing of the front wall to the Renaissance details of the window and door heads, suggest the work of Scottish masons in Ontario.
” - unquote

5 - How should Hamilton react ? One indicator might - MIGHT - still be how Sandyford Place was saved from the wrecking ball 45 years ago . A retrospective look at that process :

Oct 30/14 “Sandyford Place : Saved & Restored” by Dr Diane Dent
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NOT HELD disability rights here : REPAIRING instead of REPLACING the oft-broken ELEVATOR 2020/04/03 19:08  
( not legal advice )

With FULL ELEVATOR REPLACEMENT ( & related balcony access ) as much as half of the $3 M reserve under-funding, was it oppressive or a Human Rights violation for the condo Board to merely repair the sole elevator at this 3 storied community ?

That's meant leaving the sole elevator non-functioning for long periods.

It appears that within the last year or so two disabled SANDYFORD PLACE senior age owners have failed with one or another of those arguments in this site-specific particular sidebar of the central issue : TERMINATION OR NOT ? .

1 - At Ontario's Human Rights Tribunal 2016 & 2019 : Dr Lorna Browne v Wentworth CC #96 ( only an interim ruling found ). Should an adjudicator's Rights Balancing result in a dying cancer patient - lacking an elevator to attend chemotherapy - be faced with dying in an institution ? Or dying at home ? Ironically the late Dr. Browne reportedly had been Hamilton's Health Officer . . .

2 - At ONSC Ontario's Superior Court of Justice Feb 2020 :

Longtime owner / ex-President / lawyer Joan M. MacDonald is told :

Board’s actual statutory omissions & what she argues is under-response to elevator breakdowns, however, did NOT reach the level of the Ontario Condominium Act 1998's section 135 condo Oppression.

This judge cited less-known Walia analysis ( Walia Properties v Y.C.C. 478 2007 . There contrary to Declaration, Walia group commercial unit owners were overrun by residential owners’ voodoo vote. )

BUT here the Sandyford ex-President’s Lien challenge got struck down & she was ordered to pay a Special Assessment or lose her unit.

Should Ontario's threshold for condo Oppression NOW get raised even higher by requiring "bad faith" instead of something lesser like incompetent disregard or What Us Worry ?

MacDonald v. Wentworth C.C. # 96 2020 ONSC 1048 issued Feb 20/20

UPDATE Aug 11/20 : In a different litigation ONCA Ontario's Court of Appeal has just upheld an Oppression analysis which expressly ruled that BAD FAITH does not have to be proven to trigger an Oppression remedy. Will this latest be part of an appeal ?
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Globe & Mail : Board's conditional sale deal triggers some hardball 2020/04/03 19:40  
( not legal advice )

G & M has made this latest article accessible due to the presence of the word corona virus in the title.

April 1/20 G & M “Hamilton condo dissolution delayed by coronavirus restrictions” by Shane Dingman coronavirus-restrictions/

The December 2019 conditional deal is said to contemplate a $ 3.7 MILLION DOLLAR sale to a local development group !

So almost three months later the Board sent out Notices of an April 5/20 Owners Meeting to vote on the $3.7 M offer.

Whatever the terms are, the proposal is apparently to include distribution of the short-funded reserve balance to current owners. )

About the offer’s other details, there’s not much in the G&M article.

eg Is the $ 3.7 M netted for Encumbrancers' financial interests ( buyers to retire lender claims ) ?

Is the offer net of Termination costs & potential delays including any imposable by various government dominant tenement easementers ? ?

Remembering that TEN OWNER VOTES would carry the Owner approval side of termination, the April 1/20 article also cites e-mails claimed circulated upfront between owners in an arguably SLAMDUNK ATTEMPT :

Either VOTE TO SELL or we seven will unilaterally stop paying unit contributions !

Will this offer survive the pandemic ? Will it be bettered down the road, although one owner asks "What's the rush ? "
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10th hour records request gets a detour & ultimate ONCAT denial 2020/05/08 16:27  
FRIDAY May 8/20 : An adjudication ( which appeared online at today ) by the Vice-Chair of ONCAT Ontario's Condominium Authority Tribunal , means that :

1 - A covid-19 delayed "distanced" OWNER TERMINATION VOTE is cited to be actually scheduled to occur ( several days ago ) on WEDNESDAY May 6 2020


2 - ONCAT has declined to order disclosure of ( nor deem as a records denial offence a denial of ) SALE-RELATED communications between the Sandyford Place Board & the proposed BUYERS.

( Is that defence here really entitled to deference ?

But this adjudication is being rendered by the Tribunal's Vice Chair. So Mehta v P.C.C. # 389 ( 2020) ONCAT 9 issued April 7 /20 may have been an aberation . . )

background : ON MARCH 10 2020 objector Joan MacDonald had formally requested such & several other items. She reportedly had submitted records requests before, but now apparently her request gets astray after latest new Director receives . . . .

Eventually Ms MacDonald gets this 11 th hour strike out, ONCAT Vice Chair lawyer Patricia McQuaid here accepting the defence erected that "NO SUCH RECORDS EXIST"

xcrpt :" . . .[14] XXX, one of the three members of WCC 96’s board of directors (the “Board”) testified. He described the decision-making process of the Board in listing the property for sale.

He stated that they did retain their lawyer to review the terms of the agreement of purchase and sale, but testified that at this time there is no correspondence between their lawyer and the buyer.

I accept his testimony on this point.

There is, therefore, no documentation to be provided pursuant to this request. . . ." - unquote

MacDonald v W.C.C. # 96 ( 2020 ) ONCAT 14 bearing date Tuesday May 5/20
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Have SANDYFORD PLACE owners voted ? 2020/05/15 18:27  
May 15/20 : With media silent, efforts have been made to find out the vote outcome.

( That's if the 'owner vote' aspect actually occurred at all. Or may have been deferred in some way ? Whether some owners credibly demanded an arms-length financial evaluation PLUS time to meaningfully evaluate such ? How unreasonable would that have been ? )

Anyway on Friday May 8/20 the ONCAT decision above appeared on Dated Tuesday May 5/20, such reported that the Sandyford Place OWNER VOTE component was scheduled for Wednesday May 6th 2020 ).

Wonder if any vote-eligible owners got to read any of it before the scheduled vote could be held ?

Ten votes needed to terminate; seven threatening to withhold contributions unless the vote is YES . . .
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NOT APPROVED - or not yet. Owners rejected SANDYFORD PLACE proposal ( W.C.C.# 96)- s124 2020/05/29 13:34  
again not legal advice.

With thanks to Dan Schneider, Dr Diane Dent & others :

1 - The ( May 6th ) owner vote did NOT approve the termination proposal. TEN YES VOTES would have been needed.

In the course of time other proposals may of course come forward.

The current offer-makers reportedly have an excellent record. And there is believed to be broad support to keep Sandyford Place for future generations ( at least to the extent that municipalities can be induced to enforce heritage easements ).

It's clear that even for a mere 12 units a ( section 124 ) vote raises complexities. It may be the most important vote of any condo community's life.

And each owner may have a unique range of financial & lifestyle issues at stake. Transparency & credibility are arguably biggies.

And here for far wider communities the heritage aspects are very substantial.

One of Dan Schnaider's blogs - now domiciled at u waterloo's heritage environment - places the 1970's fight to save Sandyford Place at the watershed of Ontario's heritage preservation legislation.

2 - The following is in no way anything but my own view, and may be wrong or incomplete.

In the bigger picture of what's good for the building, perhaps Sandyford Place's practical alternatives might ? be :

- to continue current condo format ( status quo ) but with condo "Borrowing By-law" ( to address deficiencies ) as raised at Ontario Superior Court by owner MacDonald.

It's a common condo measure elsewhere for short-funding.

Those who can afford to remain & qualify, might get customized amortization unit-by-unit for their unit's portion. "Un-qualifieds" or "I'm just tired of all this " would unfortunately have to sell. ( ? more fire sale prices ? ).

All over North America reserve short-funding is endemic in such governance models. Arguably remaining under condo freehold status maybe "just kicks the can down the road" . . .

- to TERMINATE for sale of the entire community

Not sure of the financials & engineering aspects at this site & for innercity Hamilton.

But for example IF the complex could be returned to its original FOUR discrete units instead of 12 stratified, perhaps unit-dedicated private lifts could divorce away the issues of strange looking common rearside ELEVATOR ( ? looks like a silo ? ) & lateral BALCONIES, both said underfunded. Would presumably require whopping bigger sale prices for the ultimate conversion buyers , but they could at least be freed from the condo law framework . . . .

AND yes this building ain't scarce affordable housing, but this building never could have been such.

- Less drastic : It may also be feasible for a re-developer to conduct all refurbishments and to re-launch the 12 ( or other ) number of stratified units once more into a condo law framework .

Conclusion : Whatever it has shown, the small scale of this termination proposal may offer future guidance for condo communities facing similar challenges elsewhere.

Hopefully Sandyford Place can survive for new generations, whatever the outcomes. Ontario owes a debt to all who fought to keep this building alive.
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defending Ontario's & Canada's heritage environment ( SANDYFORD PLACE - W.C.C.# 96 ) 2020/06/01 11:57  
Thanks are owed to those who fought for Sandyford Place and others of cultural heritage value.

Dr Diane Dent & others got into the trenches decades ago & sometimes have to go back there. Mrs MacDonald fought that fight at Sandyford Place, and it may not be over yet.

Dan Schneider originated a fascinating heritage OHA & M blog now available at the University of Waterloo's Heritage Resources Centre website. His articles are a treasure as well as those of other contributors.

A huge debt is owed to those and others.
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