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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