15/01/2018 – Jurisdiction Ontario
Part 61 published on 01/03/2017
Owner declared a vexatious litigant
The owner had commenced numerous Court proceedings against the condominium corporation – including a number of claims in Small Claims Court. The condominium corporation ultimately applied for, and obtained, a declaration that the owner is a vexatious litigant. The Court’s decision included the following:
Mr. Lahrkamp’s counsel summarized his position in argument by saying that he simply wants to ensure that the directors are managing the condominium properly and that there is nothing untoward going on. While condominium owners have the right to oversee a board in that manner, they do not have the right to use the court process to appoint themselves as de facto directors, property managers and auditors in the absence of any evidence of misconduct.
Apart from concerns about misuse of the judicial process, there are good reasons for courts to intervene in matters of a communal nature.
First, there is already a statutory structure in place by which unit holders can exercise oversight of the Corporation. Unit holders elect a board each year, they receive budgets and audited financial statements, they can ask the board questions and, if they wish, they can make reasonable requests for documentation. Mr. Lahrkamp has exercised those rights to an obstructive degree which not only undermines the court process but which has caused his neighbours expense and frustration.
Second, failure to intervene may lead responsible individuals to decline to stand for board election because dealing with individuals like Mr. Lahrkamp is simply not worth the headache. That would in turn undermine the object of the Condominium Act and potentially deprive owners of good candidates for election to the board.
Third, allowing Mr. Lahrkamp to continue unabated, forces other unit holders to devote time and expense to a crusade of which they want no part as their consistent rejection of him as a director demonstrates.
The expense to which Mr. Lahrkamp has put his co-residents is significant. The Corporation’s actual costs of defending the proceedings before Prattas DJ Came to $158,114.81. Ordinarily, cost orders in Small Claims Court shall not exceed 15% of the amount claimed. Mr. Lahrkamp claimed $1,500. In other proceedings he has claimed similarly minimal amounts. Prattas DJ felt sufficiently strongly that Mr. Lahrkamp’s conduct “cries out for a significant cost penalty,” on the high side of what would be acceptable within the cost framework of the Small Claims Court: Costs Endorsement of Prattas DJ at para. 40. Even then, Prattas DJ felt constrained by principles involving the law of costs to limit his award to $19,000 plus HST. This represents only a small fraction of actual costs and is wholly inadequate to compensate the Corporation. None of this is intended to be in any way critical of Prattas DJ. He was limited by principles applicable to cost awards. It does, however, demonstrate that costs orders do not prevent vexatious litigants from causing financial harm to others through their litigation.
Disposition
For the reasons set out above I grant the application and order that Mr. Lahrkamp is 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. Similarly, Mr. Lahrkamp is prohibited from commencing any action in respect of services provided to the Corporation against any service provider to the Corporation without notice to the Corporation and leave of a judge of the Superior Court of Justice. This order shall also apply to the oppression proceeding that Mr. Lahrkamp has issued but not yet served. If Mr. Lahrkamp wishes to proceed with that matter he will need leave to do so.
Editorial Note: I note that it doesn’t appear that this order will necessarily prevent Mr. Lahrkamp from making application to the new Condominium Authority Tribunal (for relief falling within the jurisdiction of that tribunal).