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#19185
CARELESS COOKER botches D.I.Y. lien challenge – O’Regan v CCC # 169 2021/02/18 19:44  
Not legal advice, as ususal.

Rather than suck up a $ 1 K deductible under his own unit owners insurance an S.R.L. self-represented owner will soon be finding out the costs of taking on the professionals.

Worse, without totally “clean hands” he is an owner daring to challenge a condo board in Ottawa’s legal district ( East Region ONSC ) .

On an unspecified date at a late 1970’s / 1980’s condo highrise east of Ottawa’s Lincoln Fields area, an owner left his unit with eggs a-cooking on the stove.

After 2 hours of stovetop havoc in the empty unit, fatalities were averted and the alerted Building Superintendent was able to confine & suppress the blaze.

( Consider that the careless-cooker has also had the chutzpah to sue the same Superintendent who ran into the unit amidst smoke and toxic airborne film to suppress the danger. And presumably to check for body/bodies without fire protection equipment used by professional firefighters to which standard the careless cooker is kvetching as to the spread of his own toxic airborne film into the common elements )

Without making any claim under its corporate insurance policy as to $ 8, 600 in common element hallway scrubbing of fire deposits, the condo corporation purported to download $ 5 K onto the insured BLAMEWORTHY careless cooker's unit.

Rather than suck up a $ 1 K deductible & apply for $4 K under his own unit owners insurance, the careless cooker ultimately found his unit’s title liened & clouded for (loan) charge-renewal purposes.

Over the $5 K chargeback & rather than hire counsel to pry certain weakness, as an S.R.L. he challenged the lien & sued his condo corporation, its management company and the Superintendent personally.

But here before a civil court Master the floor is wiped with the careless cooker, apparently failing to grasp what he might - OR MIGHT NOT - have really had to work with.

Or that he looks headed blissfully towards paying a much steeper financial price for having turned down the previously-offered settlement : $ 1K payment & claiming against his own unit-specific deductible insurance

He will be finding out what his D.I.Y. attempt will cost him . . .

( P.S. The downloading lien incidentally is easily held to just meet the timeliness criteria. The download initially matched an insurance deductible chargeback. ) )

O’Regan v. Carleton C.C. # 169 et al, 2021 ONSC 945 issued Jan 28/21 https://canlii.ca/t/jd582
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#19188
some loose ends : CARELESS COOKER botches D.I.Y. lien challenge – O’Regan v CCC # 169 2021/02/20 17:22  
Definitely NOT legal advice.

If the careless cooker had consulted a professional would he have dared to reject the arguably generous settlement offered ( as above ) ?

Would he have risked the costs of this loss and 3 virtual Hearings ?

And there's arguably another loose end.

1 - Rather than turning on a Declarationed “indemnification” formula & the Condominium Act 1998’s Part 1 limited mere definitions ( specifically of “common expenses” ( " means the expenses related to the performance of the objects and duties of a corporation and all expenses specified as common expenses in this Act, in the regulations or in a declaration; (“dépenses communes”)" unquote, the Master’s decision seems to ignore one VERY big biggy :

that in the Condominium Act 1998 ( "the Act") ’s section 105 ( see below ) the Legislature itself directly & specifically addressed the COMPULSORY downloading of the corporate policy deductible onto the common expenses of a blameworthy damage-causer’s unit after internal unit damage. And it empowered by-laws to "extend ( the lienable ) circumstances" including for common element damages and possibly even non-negligent.

Thus the Ontario Legislature directly legislated to sort out the dispute here being raised. That's without having to venture into legal threat letters @ $ 700 & "indemnification" covenants".

Further the Act’s text makes NO mention within that section that a condo corporation would technically even have to actually FILE a claim under such corporate insurance policy ( C.C.C. # 169 is cited to have NOT filed any such claim ) .

Having already sorted out this dispute about charge-backs, Ontario's Legislature already rejected the careless cooker's defence against downloading the deductible.

What the Act's section 105 expressly requires - “shall be a common expense ” - is that the corporate deductible for internal unit damage automatically becomes unit-specifically part of the blameworthy owner’s contributions owed. Did the careless cooker grasp that ?

Although the Master's decision is again silent, many ( ? if not all ? ) condo corporations have after May 4-5 2001 enacted a circumstances-extending bylaw under s 56 (1) i ( amongst others . Such would expand the compulsory down load where insurable COMMON ELEMENT DAMAGE has occurred ( exactly as here disputed ).

from Ontario's Condominium Act, 1998, SO 1998, c 19
https://canlii.ca/t/2xt

Deductible

105 (1) Subject to subsection (2) and (3), if an insurance policy obtained by the corporation in accordance with this Act contains a deductible clause that limits the amount payable by the insurer, the portion of a loss that is excluded from coverage shall be a common expense. 1998, c. 19, s. 105 (1).

Owner’s responsibility

(2) If an owner, a lessee of an owner or a person residing in the owner’s unit with the permission or knowledge of the owner through an act or omission causes damage to the owner’s unit, the amount that is the lesser of the cost of repairing the damage and the deductible limit of the insurance policy obtained by the corporation shall be added to the common expenses payable for the owner’s unit. 1998, c. 19, s. 105 (2).

Same, by-law
(3) The corporation may pass a by-law to extend the circumstances in subsection (2) under which an amount shall be added to the common expenses payable for an owner’s unit if the damage to the unit was not caused by an act or omission of the corporation or its directors, officers, agents or employees. 1998, c. 19, s. 105 (3).

Owner’s insurable interest
(4) The amount payable by an owner under this section or as a result of a by-law passed under this section constitutes an insurable interest of the owner. 1998, c. 19, s. 105 (4).


"Circumstances-extending" insurance deductible by-law :
ss 56 (1) i
“ to extend the circumstances described in subsection 105 (2) under which an amount shall be added to the common expenses payable for an owner’s unit for the purposes of subsection 105 (3) “;

2 - Was the careless cooker smart to reject the ( mere $ 1K & claim against his own unit insurer ) settlement offer ?


Xcrpt from the Master's decision :

" . . . [29] I express no views on Mr. O’Regan’s arguments that the smoke damage was caused by the superintendent’s negligence, and that the remedial costs were excessive and unnecessary. These questions were not before me.

However, like many disputes between a condominium corporation and its owners, the costs involved in this proceeding can very quickly escalate out of proportion.

Mr. O’Regan advised that he is of modest means and has the option of claiming the remedial costs from his insurance.

This would require him to pay a $1,000 deductible.

He elected not to make an insurance claim because “launching an action” was “the righteous” thing to do.

I would urge him to carefully consider the costs and the risks of continuing this litigation when he has this other alternative. . . . “ - unquote
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