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#19125
ADR CONFIDENTIALITY SHIELD overridden by ONCAT disclosure order Emerald v TSCC # 2519 2020/08/22 11:52  
Not legal advice as usual.

Mississauga's T.S.C.C. # 2519 ( 137 units in commercial area generally west of 401 /427 interchanges ) has "been to the rodeo before".

1 - In Feb 2019 it received a first time arguably minimal ONCAT Ontario Condominium Authority Tribunal penalty of $ 1,150. Same records requester.

And it was then ordered to disclose certain accounting records after what was described ( by the ONCAT adjudicator ) as totally” non-responding at any stage. See outcome apparently mis-citationed as Emerald PG Holdings Ltd. v M.T.C.C. # 2519, 2019 ONCAT 5 http://canlii.ca/t/hxp05

2 - Overriding an A.D.R. CONFIDENTIALITY SHIELD

An ONCAT outcome dated July 3 /20 only recently released ( mid August 2020 ? ) strikes down A.D.R. settlement-agreed confidentiality as a defence erected by the NOW-participating condo corporation.

( ONCAT further cites a prior ONCAT decision also overriding such defence where justified by an applicant's owners / consumers' group rights. )

The defence is said erected here to withhold access to an Corporation settlement apparently agreeing to reduce the Declarant's LEGISLATED responsibility for first year operating shortfall from $ 322 K to $ 180 K.

One presumes not all owners would be dancing for joy about that


Let me see here : Where in the Legislation would a condo corporation get authority to even waive a first year operating shortfall established by the corporation's audited financial statements ? That's IF this is what the contested document shows. Could a shortfall even be waived by 100 % owner/mortgagee vote ?

Section 75 in Ontario's Condominium Act 1998 reads that the Declarant "SHALL PAY" such.
!

No wonder the requester had to pry it out of the condo corporation.

ONCAT cites a general entitlement to at least look at the settlement that apparently agrees to override the Legislature. That's IF that's what the Agreement actually does

But the adjudicator also conditions such on its contents being agreed kept confidential.

How enforceable will or should that confidentiality be ?

3 - The latest adjudication is said issued "July 3/20"

Did this get some sort of an internal review or re-thinking within ONCAT ? Looks like actually released approx Aug 20/20 - but dated July 3/20 ? Curiously inconsistent with datings of almost immediately released outcomes. Cites a prior override and could have been merely a covid19 delay of course ? . . .

4 - One possibly should consider this in context of some other defences. Maybe not easy & could have long-lasting consequences on all owners.

Why shouldn't a requester ask questions about any reduction or forgiveness in what a Declarant should re-imburse for a first year operating shortfall ? How many units does the Declarant still own ? How many Board seats ?

In contrast solicitor-client privilege was upheld substantially against a records requester elsewhere earlier this year ( Landau v MTCC # 757 https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=19083&catid=2 )

Emerald PG Holdings Ltd. v T.S.C.C. # 2519, 2020 ONCAT 24 http://canlii.ca/t/j8k28
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#19126
Can Declarant's legislated obligation be over-riden ? 2020/08/23 12:29  
Not legal advice as usual.

The Agreement will be interesting reading. Was there a disputed definition of what was dislosured or emerging from audit ?

From section 75 of Condominium Act 1998 S.O. 1998 C.19 https://www.ontario.ca/laws/statute/98c19


"Accountability for budget statement

75 (1) The declarant is accountable to the corporation under this section for the budget statement that covers the one-year period immediately following the registration of the declaration and description. 1998, c. 19, s. 75 (1).

Common expenses

(2) The declarant shall pay to the corporation the amount by which the total actual amount of common expenses incurred for the period covered by the budget statement, except for those attributable to the termination of an agreement under section 111 or 112, exceeds the total budgeted amount.

Revenue

(3) The declarant shall pay . . . . " unquote
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