Court File and Parties

COURT FILE NO.: CV-20-636863 DATE: 20201112

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Toronto Standard Condominium Corporation No. 1466, Applicant

—and—

Stuart Weinstein, Respondent

BEFORE: F.L. Myers J.

COUNSEL: Joseph Ryan and Francesco A. Deo, for the applicant Stuart Weinstein, on his own behalf

HEARD: November 11, 2020

CASE CONFERENCE endorsement

[1] The applicant seeks to enforce an arbitration decision under the Condominium Act, 1991. Mr Weinstein objects to the enforcement of the arbitration. He also objects to a lien registered against his unit by the applicant to enforce the costs awarded to it by the arbitrator.

[2] In an endorsement dated Aug 31, 2020, Mr. Justice Schabas set a schedule for the hearing of these issues. He gave Mr Weinstein until October 19, 2020 to respond to the applicant’s proceeding and to deliver any materials in support of a motion or application to remove the lien that Mr Weinstein may see fit to bring.

[3] In an endorsement dated September 2, 2020, reported at 2020 ONSC 5269, I tried to clarify the procedural requirements for Mr Weinstein as follows:

[12] As to the proposed counter application, Mr. Weinstein filed a document with the court on June 2, 2020 that particularizes his objections. He titled the document "Notice of Application/Notice of Motion/Statement of Claim" and he asked the registrar to accept it for filing. Technically, under Rule 38.03 of the Rules of Civil Procedure, a counter application is a separate proceeding that is heard together with the initial application. Justice Schabas's August 31, 2020 endorsement provides for Mr. Weinstein to deliver all of his written materials in support of a motion or application to remove the lien by October 19, 2020. As Mr. Weinstein is representing himself, I want to make sure that he understands that this means that if he wants to challenge the legality of the lien, he must have a notice of application issued by the registrar. There are forms to be completed and a fee to be paid to have the registrar issue the notice of application. Then, by October 19, 2020, Mr. Weinstein must serve on the condominium corporation's lawyers and file with the court both his issued notice of application and all affidavit or other evidence on which he relies to oppose the lien. [Emphasis added.]

[4] Rather than issuing a new application to challenge the legality of the condominium corporation’s lien, Mr Weinstein delivered a 600-page record which contains neither a notice of application nor any affidavit evidence. He has titled his material “Response to Application & [Application/ Motion] within Counterclaim”.

[5] The “counterclaim” purports to add claims against the property manager and members of the applicant’s board of directors personally and seeks the following relief:

Relief Sought

• Requesting:
  • Removal of Invalid lien.
  • Dismissal of Application of TSCC#1466.
  • S.135 Oppression under the Condominium Act. and/or s.24 of the Canadian Charter of Rights and Freedoms Include these in index and mention page #s here
  • $75,000 as general damages and damages for oppression.
  • Any other remedy the Honourable Court sees fit.
  • Any and other remedies necessary to remove the invalid lien on my property with whatever required Acts and prevention of TSCC#1466/ Individual Board Members of TSCC#1466/ Gerry Scully/ Colm Brannigan/ Fine & Deo and anyone else business or individually to discontinue s.135 oppression

[6] The narrative text of the response and counterclaim is approximately 25 pages of argument and allegations combined. The rest of the record includes numerous scientific articles and other documents on which Mr. Weinstein relies.

[7] Mr. Weinstein wrote to the court seeking to note his newly-named respondents in default on a summary basis. The applicant objected. I held a case conference on November 11, 2020 to sort out the process going forward.

[8] Mr. Weinstein has himself in a procedurally difficult spot. He wants the lien taken off title to his unit. Although the condominium corporation has undertaken not to enforce the lien pending the outcome of these proceedings, Mr. Weinstein says that it is illegal and should come off immediately. He did not commence a new application to challenge the lien as required. His responding material is not admissible evidence on which he can rely. He wants to expand the relief that he claims.

[9] First, if Mr. Weinstein wants to claim damages against numerous individuals, he needs to sue them in a proper lawsuit. I explained to him that in a lawsuit, the defendants will have time to respond. There will be document and oral discovery and then a trial. The December 17, 2020 date cannot possibly be used for those claims.

[10] What Justice Schabas scheduled, and I explained to Mr. Weinstein in my prior endorsement, was that he could start an application process to try to invalidate the lien as a counter application to the applicant’s effort to enforce the arbitration. They are alternate sides of the same coin in the main.

[11] An application process does not fit for the other claims that Mr. Weinstein wishes to bring against other parties. An application process is especially inapt for a claim for damages.

[12] I thought about deeming Mr. Weinstein’s responding material to be a notice of application. However, for the court to have jurisdiction to hear and grant relief on the validity of the lien, Mr. Weinstein needs to commence a legal proceeding. That requires that a notice of application in Form 14E be completed and issued and that Mr. Weinstein pay the necessary fees.

[13] During the case conference, Mr. Weinstein affirmed his belief in the truth of his response and counterclaim. I am content that the narrative at the front 25 pages of the record be treated as an affidavit so as to allow cross-examinations to proceed.

[14] Mr. Weinstein needs to understand however, that there are laws of evidence. His “affidavit” will be admissible as evidence to prove facts of which he has personal knowledge and are not hearsay (things said or written by others). Most of the documents appended to his record are articles from journals or the internet and Twitter feeds that may not be admissible evidence at the hearing even if I deem the response and counterclaim to be an affidavit. Affidavits that contain inadmissible material will be struck or will not be usable at the hearing.

[15] Hearsay articles cannot be used in court as proof of the things written in them unless the authors of the articles testify or an expert witness is able to give an expert opinion on the point.

[16] In addition, Mr. Weinstein advises that he is relying on s. 47 (2) of the Arbitration Act, 1991 that allows an appeal or an application to set aside an arbitration award to be brought without any limitation period where “corruption or fraud” is alleged. Mr. Weinstein was quite clear and emphatic that he is alleging fraud and collusion occurred in the arbitration that the applicant seeks to enforce.

[17] I make two points to try to be helpful. First, Mr. Weinstein has not brought an appeal or an application to set aside the arbitration award. So, it is not clear what relevancy s. 47 (2) has.

[18] Second, “corruption or fraud” are very serious things to allege. A party who makes that kind of allegation needs to be able to prove it on a balance of probabilities. Assumptions and supposition generally will not suffice. If a party makes serious allegations of wrongdoing and does not prove them, he faces a very real risk being ordered to pay a higher costs award than might otherwise have been made in the legal proceeding.

[19] I make the following directions going forward:

a. The schedule ordered by Schabas J. remains in force except as amended below;

b. Mr. Weinstein may continue to defend the application and bring his own application against the applicant returnable December 17, 2020 only to try to set aside the lien;

c. Mr. Weinstein’s “Response to Application & [Application/ Motion] within Counterclaim” is not a valid lawsuit. The people whom Mr. Weinstein has purported to add are not parties in this application and are not yet facing a duly issued originating process that has actually commenced a legal proceeding in this court;

d. If Mr. Weinstein wishes to bring claims against the applicant or others apart from challenging the legality of the applicant’s lien, he will proceed as he wishes outside this application. If Mr. Weinstein starts an action or issues some other form of proceeding dealing with issues other than the legality of the lien, that proceeding will not be heard on December 17, 2020 with this application and his application to invalidate the lien;

e. Mr. Weinstein has until December 1, 2020 to issue a Notice of Application seeking only to invalidate the applicant’s lien registered against his unit. If he does so, that application will be heard on December 17, 2020 with this application.

f. To issue a Notice of Application, Mr. Weinstein needs to fill out a form 14E and submit is to the Judicial Online Services Portal at https://www.ontario.ca/page/file-civil-claim-online. The Notice of Application can be a very short document that just sets out the one line of relief claimed, a point form summary of the grounds asserted to render the lien illegal, and, in the section asking for a listing of evidence, make reference to the “Response to Application & [Application/ Motion] within Counterclaim”;

For the purposes of upcoming cross-examinations, the parties are to treat Mr. Weinstein’s record as an affidavit in support of both his response and a counter application to invalidate the lien to be commenced. The applicant may not withhold cross-examination based on the lack of an issued Notice of Application.

g. Nothing in these directions deals with any admissibility issues concerning any contents of Mr. Weinstein’s “Response to Application & [Application/ Motion] within Counterclaim”;

h. No motions are to be brought prior to the hearing of the application(s). The judge hearing the application(s) will deal with admissibility issues and any issues that arise during cross-examinations.

[20] This proceeding has consumed more than its fair share of judicial resources. No one is to contact court staff regarding this matter. Documents are to be filed electronically through the JSO Portal and uploaded to Sync.com as already directed. Confirmation Forms, including the link to the folder at Sync.com, are to be emailed to the Motions Coordinator at CivilUrgentMatters-SCJ-Toronto@ontario.ca at least one week prior to the date set for the motion.

[21] This case conference was necessitated by Mr. Weinstein’s communication with the court seeking relief and by his failure to comply with directions made – whether due to a lack of familiarity with the Rules or otherwise. Mr. Weinstein has obtained further indulgences today. It seems to me that the applicant has a justifiable basis to claim costs in the event that it is successful on the merits. Costs of preparing for and attending this case conference are payable to the applicant if it succeeds in enforcing the arbitration award as sought. If that comes to pass, I will hear brief submissions in writing to fix the quantum of costs.

F.L. Myers J.

Date: November 12, 2020