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Oct 27, 2017 Jonathan H. Fine

Michael Lahrkamp v. MTCC 932

We recently completed a 12-day trial with a unit owner (Mr. Lahrkamp) regarding the production of the condominium corporation’s records for his examination.

Since 2007, Mr. Lahrkamp commenced or brought 15 proceedings against the condominium corporation, including motions and appeals.

Among other findings in the most recent case, Justice Prattas found, with respect to the plaintiff’s (Mr. Lahrkamp’s) conduct, that:

  1. “on many occasions, the plaintiff did not always act reasonably in making his requests for access to records”;
  2. “the plaintiff was not genuinely interested in looking into certain specific aspects of the financial operations of the defendant but was either oblivious to the fact that he was wasting other people’s’ time and money or, more likely, that he took certain delight in pestering the Board and others with his demands”;
  3. “the plaintiff is a litigious person”;
  4. “The plaintiff’s relentless pursuit in legal proceedings over the years against the defendant and the plaintiff’s conduct and numerous record requests made is, in the context of condominium living, anything but virtuous”;
  5. “… the plaintiff seems to be mostly on a fishing expedition without a focus and without a rational reason as to the documents and why he is seeking them”;
  6. “the apparent disinterest, indifference and disregard to pick up the records available to him since 2012 casts a suspicious pale over the plaintiff’s real motives in seeking these documents in the first place”;
  7. “I think there may be some merit in defendant’s counsel’s submission that the plaintiff’s battle for access to the records may be purely for sport or maybe he simply enjoys litigating”;
  8. “The plaintiff has made it clear that he wishes to go behind the audited financial statements. His stated purpose: he is not satisfied with the statutory requirement of audited financial statements. Yet, on the evidence in this case I cannot ascertain any apparent or discernable reason for this position. The plaintiff presented no evidence of any impropriety or wrongdoing by the defendant in relation to any of the financial records of the corporation”;
  9. “The plaintiff testified that he is concerned about the materiality standard employed by the auditor even though it is only 10% of the recommended level and the audit was clear and it was carried out in accordance with "Canadian generally accepted accounting principles". In my view there is no reasonable justification for his concern”;
  10. “… the inspection of proxies serves no practical purpose at this stage because the meetings have been held and there is no practical way to change the election results”; and,
  11. “Given the history of litigation between the plaintiff and the defendant and the election results whenever the plaintiff has placed his name on the ballot -- where he has received very few votes -- I am rather skeptical that the other unit owners have any interest or would want to communicate with the plaintiff, except maybe to have him sell his unit and leave the condominium altogether”.

It will be interesting to see whether this case would have been decided differently if the new amendments to the Condominium Act, 1998 had been in force at that time of the trial.

Jonathan H. Fine

Jonathan H. Fine Partner

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

jfine@finedeo.com
905.760.1800 x226
905.760.0050

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