Retaliation

There are entrenched boards, who having survived a serious challenge to retaining  office, make it their mission to drive their opponents into submission or into exile (sell their units).

That is why losing candidates often sell and move on. They realize that they will be targets for retaliation and that if they have a problem with their unit, they will never get their issue corrected.

However this case, it appears that the board was far too aggressive when they went to Superior Court to insure that a respected political opponent was neutralized, and if required, exiled from their condo community.

PCC No 166 v. Ohri
Ontario Superior Court of Justice
Court File No: CV-16-3739-00
Heard: 22 February 2017 at Brampton, Ontario
Date:  26 October 2017
Before: Justice Price

PCC 166 is a 170 unit condo located at 21 Knightsbridge Road in Brampton. The Directors are:
a)   Parveen Khanna (President);
b)   Manoharadas Manobhavan
c)   Upinder Sheri
d)   Malamurli Kalsi
e)   Bhavdeep Kalsi (Mr. and Ms. Kalsi are husband and wife”).

The directors went to court seeking court orders declaring that Narender Ohri, a unit owner, was in breach of the Condo Act, and the condo's Declaration, By-laws and Rules and wanted an Order requiring him to comply with those documents. It was also clear that if Mr. Ohri failed to do so, they were going to use the court order to kick him out of the corporation.

The Election
Another owner, Peter Singh was a part-time building Superintendent in the condo until his dismissal in August 2015. At the February 2016 AGM, Peter Singh ran for a position on the board. Mr. Ohri supported him and collected 20 proxies supporting Mr. Singh against the incumbents. The board put up a notice urging the owners not to vote for Mr. Singh.

On January 27, 2016, the lawyers for PCC 166 sent a letter to Mr. Ohri that stated, in part:
We understand that you own suite 1709. We also understand that you are supporting Mr. Peter Singh’s candidacy for election at the upcoming Annual General Meeting.

We are also informed that several owners have complained about intimidation and misrepresentation in your solicitation for proxies. Those owners have been advised to outline their concerns in writing and to either attend the AGM in person or issue new proxies. If there is proof, on a balance of probabilities, that proxies collected by you and/or Mr. Singh were obtained by intimidation, misrepresentation or duress, those proxies and any others where there is reason to believe the aforementioned behavior has occurred may be invalidated for use at the upcoming AGM.

The letter did not identify any unit owner who complained, or provide the specifics of such complaints.

Mr. Singh lost the election, by nine or ten votes when the 20 proxies that Mr. Ohri collected were disqualified based the board's claims that he intimidated the owners into providing the proxies. Mr. Singh contested the invalidation of the votes.

Mr. Ohri asserts that following the election, the Board harassed Mr. Singh and him, ultimately causing Mr. Singh and his family to sell their unit and move out of the condo in August 2016.

Conclusion and order
"I find that the Application is, in essence, a dispute between the Board and Mr. Ohri over his efforts to assert his rights as a member of the corporation, especially in supporting Mr. Singh in his candidacy for election to the Board in February 2017. The court must be vigilant, especially in the context of a Board election in a condominium corporation, to ensure that its process is not manipulated by Board members who seek to maintain political control within the condominium by seeking a venue in which the condominium’s superior legal resources, and the indemnification terms of its rules, give it a significant advantage in a contest with a Unit owner."

In Couture v. TSCC No. 2187, (2015), Myers J. states:
"Life would be much neater if all disputes could be terminated unilaterally. The board somehow satisfied itself that it did not need to comply with the condominium’s mediation and arbitration bylaw or the provisions of section 132 of the Condominium Act, 1998 concerning mediation and arbitration. Rather than following the statutory prescription to attempt to resolve matters without resort to formal litigation and within the body of the condominium, the board was inviting a lawsuit against the condominium corporation.

The condominium corporation offers no good faith explanation for its refusal to engage in mediation and arbitration as required by its bylaws and the statute. This matter could have been resolved before the end of 2012 had the parties sat down in good faith to work out their issues. So much of the escalated hostilities could have been avoided had the condominium corporation engaged in mediation I response to the applicant’s notices. If mediation did not yield a settlement, arbitration could have quickly ensued. As with the administration fees/fines issue, this issue may be relevant to an assessment of the oppression remedy below."

 In a footnote, Justice Myers notes:
"Perhaps the board had an eye toward subsection 134 (5) of the statute that entitles a condominium corporation to full indemnity costs in litigation against a unit owner in which the condominium corporation obtains any award of damages or costs. This subsection performs an important role to protect innocent unit owners from paying the price of unmeritorious litigation. However, it also provides a skewed incentive to boards of directors and their advisors who can wield a heavy sword over the heads of unit owners.  In this case, for example, by rejecting the applicant’s common area expense cheques, the board could have a high degree of certainty that it would be entitled to obtain a judgment at least in the amount of outstanding common expenses. Were that the case, it would then attach a lien to the applicant’s unit for its full indemnity costs. This section unfortunately incentivizes recalcitrant, litigious behaviour by condominium boards of directors and their advisors whom may be so inclined."

Outcome
Justice Price found  that PCC #166's  Application, in essence, concerns a dispute over its election of members to the Board of Directors. It is not about conduct by Mr. Ohri that is likely to cause injury to persons or damage to their property.

PCC # 166's application was dismissed because it failed to attempt mediation and/or arbitration before making this application.


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