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PACIFIC MALL's legal war to shelter EASEMENTS / SHORTVOTE killed PARTIAL SALE for revelopment 2021/02/12 21:47  
Not legal advice, as usual.

After Pacific Mall retail condo owners in Markham rejected an 80 % VOTE process as part of a wider redevelopment, they ultimately found themselves forced to launch a rearguard action.

It was a rearguard action to shelter a pair of 1994 dominant & servient tenement interests ostensibly risked by what their adjacent ex-“partners” - reportedly also including a condominium community - might do. That's what might happen if the neighbours went ahead willy-nilly . .

The pace of Pacific Mall ain't like that of the 1820 inner core of the sleepy 19th century heritage town near my Building Scheme waterfront.

"太古廣場" (Tai Gu Gwong Cheung) was launched at the NE corner of Steeles Ave & Kennedy Rd amidst claims to be "North America’s largest Asian indoor shopping mall".

The former “Cullen Country Barns” in 1996-7 became as many as 715 retail condo units on the total site. The Pacific Mall’s portion of retail units are said to vary from 300 to 800 ft2.

Sounds pretty intense, including that police have from time to time conducted raids targeting knock-offs & counterfeits ( eg CTV reports 2018-19 raids mall-1.4440500 ).

Returning to the humdrum easement warfare, amidst a staggering TWENTY ( 20 ) days of live Hearings and one in writing, ONSC Ontario Superior Court has produced some interesting insights over the last 3 years.

1 - It issued a judicial Order protecting :

Pacific Mall's dominant tenement ( easement benefitting ) interest from “substantial interference” and

its servient tenement ( easement burdened ) interest from “overburdening”

2 - In doing so Mr Justice Sanfilippo served up an Easement 101 manual that doesn't look counterfeit.

3 - To the winning Pacific Mall condo owners, the price of the rearguard action was a recent ONSC award of only fifty percent ( $ 639 K ) out of allowable costs of $1. 28 M.

ONSC heard that Pacific Mall's "actual" costs were a staggering $ 2.11 M !

4 - The failed process for a partial sale of common element, would have been Section 124 (1 & 2 ) including a staggering EIGHTY PER CENT ( 80 % ) VOTE threshold for partial or total sale ( see Ontario's Condominium Act, 1998 S.O. 1998 ch C .19 ; part 7 . . . Termination upon sale of property. That's "votes" not more leisurely "consents"; other procedurals are required. )

The judicial outcomes so far include :

3 - Y.R.C.C.# 890 et al v. Market Village Markham Inc. et al , 2021 ONSC 753 issued Feb 1/21

2 - Y.R.C.C.# 890 et al v. Market Village Markham Inc. et al , 2020 ONSC 3993 issued June 29/20

1 - Y.R.C.C.# 890 et al v. Market Village Markham Inc. et al , 2019 ONSC 4835 issued Aug 16/19
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