Court File and Parties

COURT FILE NO.: CV-20-649863

DATE: 20201023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TSCC No. 2510, Applicant

• and -

ALL UNIT OWNERS OF TSCC NO. 2510, Respondents

BEFORE: F.L. Myers J.

COUNSEL: Timothy M. Duggan, for the applicant

READ: October 22, 2020

CASE CONFERENCE endorsement

[1] Yesterday, the applicant commenced this proceeding to seek an injunction prohibiting a unitholders’ meeting from proceeding on October 28, 2020 pursuant to a unitholders’ requisition.

[2] The applicant asserts that the unitholders’ requisition does not comply with the requirements of the Condominium Act, 1998, SO 1998, c 19. Among other things, it submits that the requisition was signed by an insufficient number of unitholders to meet the statutory 15% requirement; the minimum number of days notice was not provided to unitholders; and not all unitholders were notified at their appropriate address as required by the statute.

[3] I convened an urgent case conference today and required the condominium corporation to give broad notice of the scheduling of the case conference to unitholders. In a testament to access to justice over the internet, more than 70 unitholders and members of the public watched the proceeding and many participated as self-represented litigants.

[4] The purpose of the case conference was to discuss the urgent scheduling of the application. However, many unitholders made pleas for the management company to facilitate communication among unitholders independent of apparent conflicts of interest among different groups. For example, many of the unitholders have concerns about management's performance and fear that they are not able to discuss those concerns with other owners without management interfering.

[5] In addition, there seems to be a suggestion that the proponents of the requisitioned unitholders’ meeting have a “hidden agenda” to repeal rule 9 of the condominium’s rules that ensures accountability of unitholders for short term rentals of their units (e.g. Airbnb).

[6] The condominium consists of two buildings with over 1,300 units in downtown Toronto. They have had some highly publicized and significant issues involving short term rentals.

[7] None of the substance of any of these issues was before me at this case conference. It was a conference to discuss scheduling. Nevertheless, many of the unitholders asked me to refuse to schedule the injunction hearing on the basis that management is spending their money to try to limit their ability to meet to discuss issues.

[8] I agree that discussions among and between unitholders and the management company would be most beneficial for all concerned. The difficulty is that the meeting that has currently been scheduled purports to be a voting meeting. That is, not only will there be discussions at the meeting, but binding resolutions may be passed. There must therefore be an assurance that the meeting was lawfully called so that all unitholders are able to exercise their legal rights to participate meaningfully in the manner required by the statute.

[9] If the meeting was simply called for information purposes, without any binding voting, different considerations would apply and management would not be seeking an injunction to prohibit the meeting. Moreover, management has determined to include the issues raised in the unitholders’ meeting as agenda items for the Annual General Meeting of unitholders that is being scheduled for November 28, 2020. Assuming that management provides meaningful information and facilitates the free exchange of ideas in advance of the meeting and that a third-party chair of the meeting is appointed to give unitholders a tangible assurance of fair treatment unaffected by perceived conflicts of interest, this would seem to be a very sensible way to proceed.

[10] However, until the parties agree to a mechanism to resolve their affairs amicably as a community, there is an important legal question at stake. The condominium corporation is entitled to, and might be duty bound to protect the interests of all unitholders to proper notice of the calling of unitholders’ meetings at which lawful business may be conducted.

[11] Therefore, I schedule a hearing of this application for Tuesday, October 27, at 3:00 PM by Zoom before me. The applicant is instructed to give notice of the hearing details and Zoom link to all unitholders by email. In addition, it shall deliver its evidence to the unitholders by hyperlink in an email before 4:30 PM tomorrow, Saturday, October 24, 2020. No acknowledgement of receipt is required.

[12] Any unitholder who wishes to respond with evidence shall email their sworn affidavits and all exhibits to Mr Duggan at tduggan@hldlawyers.com by 4:30 PM on Monday, October 26, 2020. Mr Duggan will upload all parties’ materials to a folder on Sync.com and provide a copy of the link to the folder to the court prior to the hearing in accordance with the directions provided to him with this endorsement.

[13] I urge all parties, including the management company, to engender trust and confidence by engaging in and facilitating reasonable communication on all issues of interest to the unitholders. While some people may have “hidden agendas” the vast bulk of people typically are simply hoping to be treated honestly, decently, and fairly to live in a community harmoniously with their neighbours. It would be far preferable to the community of unitholders and residents if factionalism and extremism are avoided and legal fees and antagonism minimized.

Date: October 23, 2020