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December 06, 2018 Jonathan H. Fine

A Condominium Corporation’s Records Are Still Not Necessarily An Open Book

Michal Lahrkamp (a Toronto condominium unit owner) lost a condominium law case in a 12-day trial in Ontario Small Claims Court against a condominium corporation represented by Jonathan Fine of Fine & Deo.  Mr. Lahrkamp had commenced or been involved in more than a dozen proceedings, (actions, appeals, motions) against the condominium corporation, substantially all of which dealt with requests to examine records of the condominium corporation.  Among other findings, the judge held that Mr. Lahrkamp litigated for sport and took delight in pestering the condominium’s board of directors and management.  The judge also awarded a precedent setting $21,270 costs against Mr. Lahrkamp.

Fine & Deo then applied to court for an order that Mr. Lahrkamp was a vexatious litigant.  Our lawyers’ application was granted with the result being that the judge ordered that Mr. Lahrkamp was prohibited from commencing any proceeding in any court against the Corporation, its present, future or former directors, or its property manager, except by leave of a judge of the Superior Court of Justice.

On November 1, 2017, the amendments to Ontario’s Condominium Act, 1998 relating to records and the establishment of the Condominium Appeals Tribunal (“CAT”) as the sole forum for records requests disputes came into effect.

Although the vexatious litigant order did not apply to CAT proceedings, a burning question was how the CAT would view the inevitable application to it by Mr. Lahrkamp as a result of his further requests for records under the new regime.

Sure enough, Mr. Lahrkamp requested various records and applied to the CAT when the condo corporation refused to produce them, primarily because he had been found to be a vexatious litigant.

It is important to note that Section 1.41 of the Condominium Act, 1998 (the “Act”) provides that:

The Tribunal may refuse to allow a person to make an application or may dismiss an application without holding a hearing if the Tribunal is of the opinion that the subject matter of the application is frivolous or vexatious or that the application has not been initiated in good faith or discloses no reasonable cause of action.

The decision of the CAT was released November 13, 2018 and held that the condominium corporation did not have to produce the requested records.  More particularly, the CAT held that that Mr. Lahrkamp’s case was vexatious because it was an attempt to continue a dispute already determined by the courts and was brought for an improper purpose.

Mr. Lahrkamp has indicated that he intends to appeal this decision.

Read more here and here.

Jonathan H. Fine

Jonathan H. Fine Partner

B.Sc., J.D., F.C.C.I.
905.760.1800 x226

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