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#19062
WHO’S OPPRESSING WHOM ? : ‘It’s MY OWN PRIVATE BALCONY ! NOT EVERYBODY’S COMMON ROOF !’ 2020/04/05 17:27  
( again, not a legal opinion )

It was like a range war out on the wilds of Highway 11 A ( technically only "Avenue Road" since the mid 1990's ). Albeit without actual shooting.

Claims were made for a decade or more by a rooftop unit owner to outright ownership or exclusive use element status of the ENTIRE roof of the midrise outside his own unit boundaries ! Also claimed rights to store items in one of the rooftop emergency stairwells.

There had been some degree of "agreement to peacefully disagree".

And access had been provided for the condominium corporation to carry out essential building operations from the roof top. And even consenting on a good will basis for visits by owners to what has now been confirmed as their own terraced common roof.

BUT FINALLY at least one of the unit owners got fed up enough to call the claimant's bluff.

That soon triggered the rooftop claimant to apply for an OPPRESSION REMEDY under section 135 of Ontario's Condominium Act 1998.

Through the technical title held by his corporation, the rooftopper also sued ALL OTHER OWNERS PERSONALLY along with the CONDO CORPORATION ITSELF !

He also claimed hundreds of thousands of dollars for a range of classic real property wrongs like trespass, nuisance & invasion of privacy !

But in a merely PARTIAL summary decision released just prior to the COVID-19 shutdowns, virtually ALL BUT THE OPPRESSION REMEDY has been addressed.

Mr. Justice Paul Perell destroyed all of the rooftopper's ownership & exclusive use claims.

Without access to the Declaration & Description held to flat out contradict the privatizing claim, one relies on Justice Perell's extensive & well-respected experience in de-constructing those documents. Those documents anyway are held to kill the rooftopper's claims ( except the Oppression one being reserved ).

Did the Oppression-claimer know they were voodoo ? In para 89 Justice Perell comments :

" . . . He knew or ought to have known that he did not have exclusive use of the Roof. I find as a fact that he did know that the Roof was not his to own or control. - unquote

In fairness a significant component had also been claims derived from alleged extraneous unit arrangements on other floors.

Well what's here is also held as voodoo ( & it is held to contradict literally how the Declaration & Description reportedly define this rooftopper's unit ) ! As the infuriating sort of junk that the English & Wales Court of Appeal found in 2016 were frequently the sort of extraneous voodoo supporting many outcomes ( in over a century of jurisprudence ) holding degrees of Building Scheme status and/or restrictive covenant claims ! That's too often the sort of sloppy voodoo from the Building Scheme universes where extraneous junk might get argued to get around what the parties literally contracted. And especially from some of the wild & crazy shenanigans in American shared ownership disputes . . .

Still to come eventually down the pipeline are the handling ( by formal action & protocols of a trial with civil procedure ) of the rooftopper's OPPRESSION CLAIMS .

Mr Justice Perell in other prior judgments for example rejected the Oppression claims of owner Ryan but awarded substantial civil damages for inadequate response to 30 years of building deficiency. ( see cafcor topic at https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=9&id=18438#18438 )

Oppression claims were upheld by others for example in Noguera and in Gregoriu. . .

The Section 109 DECLARATION AMENDMENT ORDER

Mr Justice Perell however here orders a section 109 judical Declaration amendment. One might - MIGHT - see it as a prudent step to encourage the litigants to now chill out. Such would transfer a portion of the common element rooftop area to the claimant rooftopper arguably without straitjacketing essential rooftop maintenance & common element enjoyment by ALL OWNERS, to whom the Declaration declares ownership as of right.

( And sometimes a judicial amendment brings something other than what the applicants probably wanted - “FIREPLACE FLUE WAR : judge SPLITS DECISION for Declaration amendments to download reconstruction” https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=9&id=18990#18990 )


CONCLUSION

Stay tuned for eventually what might be a VERY interesting discussion of Ontario's section 135 condo oppression remedy from a judge who has laboured in those vineyards before . . .

1229965 Ontario Inc. v. Y.C.C. # 263 (2020) ONSC 1639 issued March 18/20 http://canlii.ca/t/j5xs0
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