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Tribunal HALTS unlawful liening & OWNERSHIP-STRIPPING OF DISABLED PARKER- Rahman v Peel SCC #779 2021/02/18 19:51  
Not legal advice. Wonder if this adjudication will show up on any law blogs ?

( There are good reasons why condo ( & for that matter Building Scheme ) governancers should not be allowed to purport to override Ontario's Condominium Act 1998 and its expressly legislated limits on their authority.

Without prejudice to this necessarily being such situation here, voodoo indemnification & bullying for any but the express purposes specified within the relevant statute, eventually invite anarchy & discourage purchases.

Governancers do not make the law, no matter what they and some legal advisors may think. It's a mistaken view too widely held, along with the apparent belief that conduct can be coerced & fines levied.

Whether this is the scenario here of course is up to a reader, and this decision is subject to appeal albeit limited in scope. Adjudicators CAN get it wrong.

BUT even if - IF - the adjudicator had the "factuals" wrong here, how on earth could it be reasonable to sell a disabled owner's unit out from under him just for using the ( outdoor, non-allocated / first come - first served ) Handicap parking ?

That's instead of accommodating his disability to the point of undue hardship ! Sounds like Florida or Texas ?

1 - ONCAT Ontario's Condominium Authority Tribunal has issued what may be its first adjudication under the powers expanded in 2020 to include parking disputes.

( It had previously rejected a jurisdictional challenge including that in hearing this Handicap parking dispute ONCAT was allegedly blocked by the Condominium Act 1998's still unamended Dangerous Activities Section 117 ! )

2 - ONCAT rules that the condo governancers' charge-backing ( under the Declarationís so-called indemnification section ) by lien & Powers of Sale process, had been unlawful and was unsupported by the legislation itself.

Bigger, that it was harassment shockingly heading by Power of Sale to strip the Applicant of unit ownership. . . an expulsion for using non-visitor Handicap parking as construed allowable to him under the Declaration !

3 - Construes that the disabled applicant's condo corporation - with counsel here - wrongly & erroneously HAD RULED ( ! ) that with HANDICAP permit & medical confirmation he was nevertheless barred from using disabled parking ( as construed to NOT be "VISITORS-ONLY" off limits to unit owners ) !

The adjudication contains a photo of the signage and deconstructs the relevant text of the Declaration itself as addressing status of outdoor parking.

4 - In addition to ordering the harassment halted, ONCA awards $ 1700 to the disabled SRL self-represented litigant.

Such adjudication is subject to appeal albeit limited to the scope & standard of review framework allowable under Canada's Supreme Court in recent Vavilov judgment.

Rahman v Peel S.C.C. # 779 , 2021 ONCAT 13 issued Feb 16/21
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excerpts with PHOTO : OWNERSHIP-STRIPPING OF DISABLED PARKER- Rahman v Peel SCC #779 2021/02/18 21:17  
xcrpted :

" . . . [28] . . . . .I find that Mr. Rahman is in compliance with Article 4.2 of PSCC779ís Declaration in his use of the handicap, or accessible, parking spaces.

. . . [30] PSCC779 did not quantify the indemnification costs, charges or expenses in this hearing and made no claim for them in its submissions.

Rather, PSCC779 appeared to take the position that it did not need to claim these costs.

As I understand PSCC779ís position, the mere assertion of the costs of compliance, including legal costs, is sufficient to shift the onus to Mr. Rahman to demonstrate that the costs are not recoverable.

It is fortunate that this is not the law of Ontario.

Condominium corporations cannot simply assert a claim against an owner to succeed.

Mr. Rahman objects to the indemnification charges on the grounds that PSCC779ís case is without merit.

I find that Mr. Rahman has complied with Article 4.2 of the Declaration.

It follows that there can be no claim for indemnification for the costs of enforcing compliance with this Article of the Declaration that are recoverable against Mr. Rahman.

[31] Acting on the authority of subparagraph 1.44(1)2 of the Act, I will direct that PSCC779 cease its attempts to enforce its costs of compliance with Article 4.2 of its Declaration against Mr. Rahman.

As will be discussed below, this includes PSCC779ís attempts to enforce these claims against Mr. Rahman by registering a lien on his condominium unit and issuing a Notice of Sale.

. . . [41] . . . On December 31, 2020, a Notice of Sale was registered by PSCC779 against Mr. Rahmanís condominium for an amount of $13,839.68, which was expected to increase by February 1, 2021 to $15,162.51. PSCC779 advised that if payment in full was not received by February 19, 2021, PSCC779 would proceed to sell Mr. Rahmanís condominium.

. . . . .[44] The Amlani case deals with the interpretation of an indemnification clause and the operation of section 134 of the Act.

However, the case does not stand for the proposition that, through deft wording of an indemnification clause, a condominium corporation can deprive an owner of his or her day in court as provided for in subsection 134(5) of the Act.

In fact, the Court says, at paragraph 34,

It is one thing to allow the corporation to enforce, by way of lien, common expenses that are applicable to all unit holders and that a majority of unitholders have approved.

It is entirely another to allow a condominium corporation the unfettered, unilateral right to impose whatever costs it wants on a unitholder, refer to them as common expenses and thereby acquire the right to sell the unitholderís apartment.

[45] Another way of considering the matter is to determine if PSCC779ís interpretation of its indemnification clauses is reasonable.

Here again, reference may be had to the Amlani case, where the Court wrote, at paragraph 46:

Finally, the interpretation the Corporation advances contravenes section 134 (5) of the Act because the costs it claims related to compliance and enforcement costs without being embodied in a court order. An interpretation that contravenes a statutory provision is, by definition, unreasonable

[46] From the outset PSCC779 took an aggressive posture in enforcing compliance despite the fact that it would have been clear to a reasonable person that Mr. Rahman had, at the minimum, a prima facie case for his use of the accessible parking space.

PSCC779ís position became increasingly aggressive. It added its legal costs in enforcing the Declaration, together with associated interest charges, to Mr. Rahmanís common expenses.

Despite Mr. Rahman, correctly, advising PSCC779 that it could not add these costs to his common expenses without a court order as required under subsection 134(5) of the Act, PSCC779 persisted.

It not only added those costs to Mr. Rahmanís common expenses but attempted to collect its legal costs and interest by way of lien and notice of sale.

It proceeded despite hearing from Mr. Rahmanís doctor that its treatment of him was causing him stress and anxiety. . . . " - unquote
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cross-reference 2021/02/21 10:37  
cafcor topic " LIEN ABUSE gets oppression remedy : AMLANI v Y.C.C. # 473 "
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