2014 QCCQ 11596, 2014 QCCQ 11596

Syndicate of Co-Ownership Le Cacharel c. Gineys 2014 QCCQ 11596 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division » N°: 500-22-190226-129 DATE: OCTOBER 22, 2014 ______________________________________________________________________ BY THE HONOURABLE MARTINE L. TREMBLAY, J.C.Q. ______________________________________________________________________ THE SYNDICATE OF CO-OWNERSHIP LE CACHAREL and PETER FERST and ELLEN KOM and NICK SCHNITZER Plaintiffs v.

GREGORY GINEYS and ROSLYN STROLL Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Syndicate of Co-Ownership Le Cacharel (the “ Syndicate “) is claiming $4,173.95 from Defendants for the trouble, inconveniences and unnecessary legal and engineering fees incurred to hold a meeting of co-owners on December 13, 2011. [ 2 ] Co-plaintiffs, Peter Ferst (“ Mr. Ferst ”), Ellen Kom (“ Mrs. Kom ”) and Nick Schnitzer (“ Mr.

Schnitzer ”), the three directors of the Syndicate (collectively hereinafter called the “ Directors ”), claim $7,333.33 each from Defendants, solidarily, for the damages caused to their reputation by three e-mails that Defendants sent to all the co-owners of the Syndicate. [ 3 ] Plaintiffs also claim payment from Defendants, solidarily, for all their legal costs on a solicitor-client basis. [ 4 ] Defendants deny that they committed a fault or defamed the Directors.

As Cross-Plaintiffs, they claim $15,000 from the Directors, solidarily, for the extra-judicial fees they incurred as a result of what they consider an abusive action, contrary to the interest of justice. QUESTIONS IN DISPUTE 1. Can the Syndicate be compensated by Defendants for the trouble and inconvenience caused by the meeting of December 13, 2011 and the costs incurred as a result thereof? 2. Were Mr. Gineys’ e-mails of November 14, November 19 and December 4, 2011 defamatory? 3. What damages were caused to Mr. Ferst, Mrs. Kom or Mr. Schnitzer as a result of the alleged defamatory e-mails? 4. Can Mrs.

Stroll be held responsible for Mr. Gineys’ fault? 5. Are the present proceedings taken against Defendants abusive? THE RELEVANT FACTS The Parties [ 5 ] The Syndicate [1] is responsible for the maintenance and preservation of the immoveable situated at […], in Westmount (the “ Building ”), a five-story building comprising 16 divided co-ownership apartments and 18 parking spaces. [ 6 ] In November 2011, Mr. Ferst, a 69-year-old engineer, had been a co-owner, since at least 1989. He was responsible for payment of 11.43% [2] of the condo fees.

He was, and remained until trial, secretary of the Board of Directors of the Syndicate (the “ Board of Directors ”). [ 7 ] Mrs. Kom, then a 58-year-old autonomous worker, had been a co-owner since 1994, responsible for 6.02% of the condo fees. She had been, since 1996, vice-president of the Board of Directors. She remained, until trial, in that capacity because no one else

volunteered and she felt she had to protect her investment and was happy to help other people in the process. [ 8 ] Mr. Schnitzer, then 75 years old, had been a co-owner since 2001, responsible for 6.13% of the condo fees. Since 2004, and until trial, he has been president of the Board of Directors. Prior to his retirement, he was general manager of a manufacturing company. [ 9 ] All three Directors were, and remained volunteers until trial. [ 10 ] Defendant Roslyn Stroll (“ Mrs. Stroll ”), an elderly woman with health issues, lived with her then 36-year-old son and Co- Defendant, Mr. Gregory Gineys (“ Mr.

Gineys ”), in an apartment accounting for 5.18% of the condo fees. Mr. Gineys is a real estate agent. Water leak and Syndicate meetings [ 11 ] In 2010 and 2011, water was leaking from the flat roof of the Building and began gradually to appear in several apartments. The membrane of the roof had reached the end of its useful life. [ 12 ] Mr. Gineys was working at the time for a real estate management and development company. He decided, without the consent or knowledge of the Directors, and as Mrs. Stroll’s mandatary, to obtain estimates to replace the roof from three roofing companies [3] .

The lowest quote that he received was for $72,850 [4] and the highest was for $92,165 [5] , each before taxes. [ 13 ] On May 31, 2011, at the co-owners’ annual general meeting [6] (the “ May 31 Meeting ”), the condition of the roof and the need for its replacement were discussed. A 2011 report regarding the roof condition was available. The report, prepared by the engineering firm LVM (“ LVM ”), estimated the cost for the roof replacement to be $95,000. Seven co-owners, including Mr. Ferst and Mr. Schnitzer, were present; four were represented by proxy, including Mrs. Kom, and four were absent.

The number of votes of the persons present or legally represented at the meeting came to 79.84% of the total eligible votes. [ 14 ] Mr. Gineys did not disclose the three estimates in his possession [7] . The process leading up to the selection of a qualified roofer was explained. LVM was to draw up plans and specifications and set up a data room to which only selected reputable roofers were to be given access in order to prepare and submit quotes which would then be analyzed by LVM. [ 15 ] The minutes of the May 31 Meeting indicate:

a) The assembly’s request for the following year’s financial statements to itemize the maintenance and repair expenses;

b) The increase of the annual operating fee assessment by 3%;

c) A special assessment of $115,000 payable in three instalments to install a new waterproof roofing system after the air conditioning season, in September 2011;

d) The Directors’ willingness to remain on the Board of Directors for the upcoming year;

e) A series of various requests to manager, Mr. Takao Shibata (the “ Manager ”), regarding work to be done and quotes to be obtained. [ 16 ] The co-owners unanimously adopted the 2011 operating and reserve fund budgets and appointed the Directors to the Board of Directors. [ 17 ] After the meeting, LVM proceeded as explained. Three Star Roofing was the lowest bidder at $112,000, but other various expenses increased the forecasted total cost by $38,000, i.e. from $115,000 [8] to $153,000 [9] . [ 18 ] The Directors decided to hold an information meeting on November 7, 2011 (the “ November 7 Meeting ”). Mr.

Gineys and other co-owners were present. No minutes were taken but Mr. Ferst testified that a grid was circulated comparing the bids received via LVM from seven roofers. Again, Mr. Gineys did not mention the quotes [10] that he had previously obtained. [ 19 ] At the trial, Mr. Ferst testified that the discussion at that point between the co-owners only dealt with the need to hire LVM to supervise the work. The proposed contract with Three Stars Roofing was available to the co-owners for consultation, together with drafts of the plans and specifications.

The contract with Three Stars Roofing was signed by the Syndicate after the meeting. [ 20 ] After the November 7 Meeting, Mr. Gineys called co-owner Sovanna Men (“ Mr. Men ”) [11] to discuss the $38,000 increase in cost for the roof replacement. Mr. Men was a co-owner since 1989 and rented out his apartment since 2006. He was a retired engineer of Hydro-Québec and present at the May 31 Meeting. During his career, Mr. Men had drawn plans and specifications for flat roofs.

At the trial, he testified that, at the May 31 Meeting, no plans and specifications were done and available and that the Directors mentioned a replacement cost of $95,000 for the Building’s new proposed flat roof. He was not at the November 7 Meeting because his tenant did not advise him of the notice that had been received by him. [ 21 ] During the conversation with Mr. Gineys, Mr. Men considered the request for additional funds to be abnormal and agreed with Mr. Gineys that it was relevant to further investigate the matter. [ 22 ] Mr.

Gineys decided to ask for a quotation from Toiture Couture & Associés Inc. [12] . He wanted to give them access to information that would allow them to bid properly. He therefore contacted LVM, which replied that their contractual arrangement with Mr. Schnitzer and Mr. Ferst did not allow them to give him access to the plans and specifications and that he had to present his request for same to Mr. Ferst or Mr. Schnitzer [13] . E-mail exchange

[ 23 ] Mr. Gineys therefore sent an e-mail [14] , on November 11, 2011, at 1:24 PM to the Manager, Mr. Ferst and to LVM. It reads as follows: Dear Mr. Ferst and Mr. Shibata, Would you please be so kind as to provide me, for my files, with copies of the following documents: 1. A copy of the roof condition report 2. A copy of the plans and specifications 3. A copy of the various quotes you have received from the tendering process 4. A copy of the contract awarded to the company “Three Star Roofing” My very best wishes, [ 24 ] Mr. Ferst admitted at trial that this received e-mail was polite and non-threatening.

Furthermore, he recognized that he had access to the data room prepared by LVM and that he could have given Mr. Gineys access to the data room. [ 25 ] At 3:48 PM, on the same day, Mr. Ferst replied and copied Mrs. Kom, Mr. Schnitzer and the Manager [15] : Dear Greg, Further to the email below I would confirm with you what is being said below. I think, as a licenced Real Estate Agent, you must understand that a project of this nature cannot have individual co-owners making requests to the Engineers nor Contractor. Not only will it cause chaos in managing, but increase costs.

What may appear to you as a simple request requires time spent by the Engineering Company in both assembling and printing the information and time spent on the phone with you. These would be extra costs that they could very justifiably request payment for and we would have to pay. I have the plans and specs and if you have any questions of a technical nature please feel free to contact me; but I would request that you do not contact the Engineers nor the contractors.

Thanks. [ 26 ] On the following day, Saturday November 12, 2011, an exchange, that could have remained a polite discussion between people who had the same financial interest in the Building, escalated to the point where feelings on both sides were hurt. As a result, they became stubborn and the climate deteriorated. [ 27 ] At 9:24 PM that day, Mr. Gineys wrote [16] : Dear Peter, Ellen and Nick, I would like to take this opportunity to thank you for your e-mail and your concern.

I welcome the opportunity to meet with you, this weekend in order to study the roof condition report and to obtain a copy of the plans for the replacement of the Cacharel roof. I find the proposed budget for the replacement of the roof to be extremely expensive and completely out of line with current market prices. Aras Management Consulting is a real estate management and development company located in Laval. We are currently developing 46 condo units in Laval to be launched this December and a 440 condo units residential project, in phases,

on the site of the Récréatheque to be launched in the summer of 2012. Please find enclosed copies of our architectural plans. We are working with some of the largest general contracting firms in Canada, such as Reliance Construction, Giffels and Tridome. To give you an idea regarding pricing by a reputable inspection firm. For our 46 units condo project, the cost of an independent inspector and engineering firm to supervise the electrical or mechanical and plumbing work is approx 9500$ for 48,000 sq. feet of construction. Charging $ 9210 to supervise a 10 day roof repair job of 6000 sq. ft. is complete non sense.

To give you an example regarding pricing by a major and reputable general contracting firm. Our maximum fixed cost, to build approx. 16,217 sq. feet of roof is approx. $100,000, this before negotiating any discounts. Although our roof type is different, the cost for the Cacharel’s roof should not exceed $90,000 including new insulation and removal and installation of all ac units, on a fix cost total contract price. Furthermore, the idea of requesting significant additional funds for a shortfall in the budget is ridiculous, unnecessary and totally out of question.

Of course, it is in everyone’s interest for the Cacharel building to establish significant economies of scale as we are developing multi million dollar residential projects. Aras Management is also currently managing in excess of 25 million dollars of real estate, from commercial, industrial and residential.

We currently have a full time staff of 2 book keepers, 1 full time accountant and controller, including a full time staff or repair men, ranging from electrician, plumber, carpenter, cleaner, security… I am offering the possibility of managing the Cacharel building for a flat fee of 6,000$ (six thousand dollars) per year, to be adjusted yearly with cpi for inflation. This represents a 50% discount compared to the exorbitant fees we are currently paying.

In times of global economic recession, I would welcome the opportunity for us to meet this Sunday at my place or on Monday at our Laval offices, in order to find an excellent solution which would enable very significant costs savings for all the co-owners. Kindest regards, [ 28 ] At 10:57 PM, Mr. Ferst wrote [17] : Dear Greg, I have not consulted with my fellow directors but I will reply briefly with what I will be telling them as to my thinking to your points

below. 1. The onsite supervision part of the work and as explained at the meeting of the $ 9,500 was $2,500. 2. Pricing from seven reputable and qualified bidders was obtained and to which we selected the lowest bidder. 3. We cannot compare apples to pears. Our building has some unusual conditions for the sq. footage. We have an inordinate number of openings plus an unusual number of individual A/C units. If you look across the road on Demaisonneuve you will see their A/C units are on their balconies. We have to dismantle then re-install 16 units which added tremendous costs compared to a vanilla type of roof.

I am sure you know the cost of plumbers and electricians. We are probably looking at 35-40% of the costs is in the mechanical/electrical portion. I cannot see how you can be talking about numbers without proper detailed plans and specs that appertain directly to this building and not some “rule of thumb” or out of context comparisons.

It was such detailed plans and specifications prepared and sealed by qualified professional engineers in their field (that you are not) that the contractor’s received and bid on and were thus in a position to give a price that directly related to this building and its condition and not some hypothetical case study nor other building examples that bear no relation to our situation. 4. The contract has been signed and there is no turning back. Material orders have been placed by the contractor who we expect to start in the next coming week. 5.

The decisions, that were agreed to by the co-owners at both the GM and the recent info meeting are being implemented and your concerns should have been raised at that time. 6. Thank you for your offer to manage the building but I cannot agree to this since I do not believe you possess the required experience for doing so. From my many years in the Engineering world I can assure you that managing construction and managing in an operating mode is two different things and requires different skill sets. Furthermore, I believe you to be in conflict of interest as you live here and are related to a co-owner.

Also the fact that you went directly to the engineering company and which prompted my original email (repeated below) demonstrates to me one of the reasons that you would not be a suitable candidate to manage this building. I am not even sure why you want to go into detailed engineering issues since I can assure you that as a licenced professional engineer I have been most diligent in monitoring all the lead up phases on behalf of my co-owner and spent many hours and attended numerous meetings.

I have done this on a pro-bono base, as I did for the garage project, since to do otherwise would place me in a conflict of interest and possible sanctions from the ethics dept. of the Order of Engineers. If your motive in requesting detail plans and specs is to look for comparison bidding then I will not be a party to that. Based on my comments above I see no reason why we need to meet since I have no wish to enter into long convoluted and useless debates but focus my efforts on continuing to monitor, with Mr.

Shibata, the daily progress of the project which I believe to be a more beneficial way to help my fellow co-owners. Yours Truly, [ 29 ] At 11:35 PM, Mr. Men wrote [18] to Mr. Gineys, with copies to Mr. Ferst, Mrs. Kom, Mr. Schnitzer and co-owners Mrs. Diane Oelmann (“ Mrs. Oelmann ”) [19] , Mr. Albert Hans Eich (“ Mr. Eich ”) [20] , Mr. Albert Siew (“ Mr. Siew ”) [21] , Mr. Martin Haber (“ Mr. Haber ”) [22] and the Soucy sisters [23] : Dear you all, Quand j’ai lu que LVM ne peut nous donner les détails du projet, je pense que c’est abominable.

Les co-propriétaires doivent simplement payer sans savoir le pourquoi, c’est ridicule. Avec le coût qui grimpe à 40% de plus que prévu, c’est irresponsble [ sic ] de s’organiser seulement entre 2 ou 3 personnes. Il faut reviser la méthode de gestion et surtout pendant cette période il faut minimiser les coûts dans tous les domaines sans exceptions. [ 30 ] At 11:40 PM, Mr. Gineys replied [24] to all the recipients of Mr. Ferst’s 10:57 PM e - mail [25] . Copies of his answer, and

therefore of Mr. Ferst’s e-mail, were sent to the co-owners from Mr. Men’s e-mail and to the Manager: Dear Peter, Thanks for your e-mail. I do not share your point of view. Nevertheless, I would kindly request on behalf of my mother, one last time, that you please provide me with copies of the following documents for my file, as per my e-mail to you of Nov. 11, 2011. 1. A copy of the roof condition report 2. A copy of the plans and specifications 3. A copy of the various quotes you have received from the tendering process 4. A copy of the contract awarded to the company “Three Star Roofing” 5.

A copy of the contract you have awarded to an independent construction inspector 6. A copy of your minutes clearly indicating the basis of your selection process. My mother, as a co-owner has all the legal rights to have access to those documents without any resistance on the behalf of the management and/or the administrators of the Cacharel. Please have certified copies of the following documents delivered to my office, for Monday. Thank you. My very best wishes, [ 31 ] Mr.

Ferst replied to everybody at 11:55 PM [26] : Greg, As per the Quebec Civil Code there is no legal requirement as your elected directors for us to do so and I will not. Yours truly, [ 32 ] Mrs. Kom and Mr. Schnitzer both testified that they did not know about this exchange of e-mails at that time. Alleged defamatory e-mails [ 33 ] On November 14 th , at 5:14 PM, Mr. Gineys wrote what Plaintiffs refer to as the first defamatory e-mail [27] to co-owners Mrs. Oelmann, Mr. Men, Mr. Siew, Mr. Haber and the Soucy sisters. The subject: “Legal Action – Cacharel Administrators & Management Company”: Dear Friends,

The Cacharel’s building administrators, including the management company have tried to intimidate us and prevent us from accessing documents for which we have paid for such as the roof condition report and the plans and specifications. Furthermore, they have also refused to give us access to the roof repair offers they have received and contracts they have awarded to the company “Three Star Roofing” and an independent work inspector, as well as, access to their minute books. The position they have taken so far is completely illegal, totally irresponsible, and unprofessional.

They have been abusing their position, and, we have lost complete trust in the administrators and the management company. What a shame ! In this moment of crisis, I would recommend their immediate resignation, as well as the resignation of the current management company. We look forward to shedding light and full transparency to this file for the benefit of all the co-owners and look forward to your full support. I remain available anytime, and can be reached for questions at my following email address, and phone numbers.

Very truly yours, [ 34 ] On November 15, 2011, at 1:22 PM, a bailiff served the Syndicate and each Director with a letter [28] which referred to case law deemed to support Mr. Gineys’ request for the documents. The letter concluded as follows: You are hereby formally requested to obey by your legal obligation and make the requested documents available to our client (and/or any other person she mandates) and let her make copies of said documents within a delay of 24 hours of reception of the present. (Exact reproduction) [ 35 ] The Directors did not ask for an extension of that delay. Mrs. Kom deferred to Mr.

Ferst’s and the Manager’s opinion as to what should be done. [ 36 ] On November 18, 2011, Mr. Shibata replied directly to Mr. Gineys [29] : Dear Mr. Gineys, Your request for access to the roof project documents will be presented and addressed at the next available board meeting. Most if not all of the documents concerning the roof replacement project that co-owners are entitled to consult were available at the information meeting that you attended on November 7 th , 2011. We will advise you upon receipt of instructions from the board. Yours truly, [ 37 ] On November 18, 2011, Mr.

Gineys, without the consent and knowledge of the Directors, provided a roofing inspector from Le Groupe Solroc with access to the roof. Mr. Gineys wanted him to analyze the various bids he already had received and the one he was expecting from Toiture Couture. [ 38 ] On November 19, 2011, at 7:44 PM, Mr. Gineys wrote what is referred to as the second defamatory e-mail [30] , which read as

follows: Dear Friends, We have not received the important documents regarding the roof repairs, our lawyers have requested from the administrators last week, by Bailiff. Therefore, please find enclosed a letter asking for a special meeting of co-proprietors in order to obtain these documents, without having to resort to the courts. I would kindly ask each co-proprietor to provide me with a sign copy of the document for Monday morning. Please also find enclosed, some roof repair quotes for the building, that I have obtained before negotiating any discounts .

Quote 1: Couverture Dumez $92,165 Quote 2: Royal Roofing $79,000 Quote 3: NDG Roofing $72,850 The administrators and Mr. Shibata wants us to pay $ 112,000 + 1,463.94 + 5,987.9 + 9,210.84 + 10,449.2 + 13,913.21 = $ 153,025 The price is $50,000 too high ! This really explains why the administrators of the Cacharel and Mr. Shibata do not want to release to us any of the roof repair offers they have received… On Friday, November 18th, I had a roofing expert from the engineering firm Solroc complete and audit on the Cacharel’s roof and validate the above quotes I have received.

We will be receiving their completed report early this week. They have confirmed to me, in fact, that the total costs to replace the roof of the Cacharel should not exceed $ 12 to $ 13 per sq. ft. This including new insulation. Our building roof dimensions, are approximately 56 f x 95 f = 5, 320 sq. ft. Therefore, we should be paying approximately 5,320 x 13 = $ 69,160 MAX. After completing our due diligence, we are hereby contesting the following pricing imposed by the administrators and the management company: 1.

Contract to replace roof $112,000 – The price should be $80,000 MAX including removing and reinstallation of AC Units. ( $32,000 saving )

2. Contract for surveillance of work, full time of $9,210 – The price should be $2,500 MAX ( $6,710 saving ) 3. Cost to replace insulation of $10,449 – This should be included in the price of $112,000 ( $10,449 saving ) 4. Contingency of 10% for $13,913.21 – This is not correct, the contract must be awarded on a turn key, fixed costs basis. This indicates that the pricing is contracted for a maximum guaranteed price. - The general contractor, the roofing company then absorbs any costs overruns for the unexpected ( $13,913 saving ) We are looking at potential total costs savings of $ 63,072.

It is not too late to act and it is time that we all get together to contest these unjustified costs and elect new administrators and a new management company. Should the administrators refuse to act accordingly, then we will hold them personally liable for the costs and resort to the courts without delay. I truly look forward to hearing from everyone this weekend. Very truly yours, (Exact reproduction) [ 39 ] The request for a special meeting of co-owners, attached to the e-mail [31] , mentioned not only the wish to discuss the roof repairs but also the desire to remove the Directors.

It was signed by co-owners Mr. Men, Mrs. Oelmann, Mrs. Margaret Griffin [32] (at the time 79 years old) and Mr. Eich (at the time 83 years old), in addition to Defendant Stroll. [ 40 ] Co-owner Mr. Haber did not sign the request for the special meeting, but he met Mr. Schnitzer and told him that Mr. Gineys had contacted him and told him the Board of Directors was hiding information. Mr. Haber was concerned that the co-owners were paying too much, considering the quotes Mr. Gineys had obtained. Mr. Schnitzer tried to reassure Mr.

Haber that the process that was followed had resulted in a fair market price. [ 41 ] Then, Mr. Schnitzer met Mrs. Griffin who had a number of e-mails in her hands. She agreed to the request for a special meeting, but not to the removal of the Directors. Therefore, she asked Mr. Schnitzer for his advice as to whether she should sign the request for a special meeting of co-owners [33] . Mr. Schnitzer replied that she should do what she pleased. [ 42 ] Mr. Schnitzer then spoke to Mrs. Kom and read a copy of what are alleged to be the first and second defamatory e-mails that Mrs. Griffin had given to Mrs.

Kom. [ 43 ] On November 22, 2011, Mrs. Oelmann wrote an e-mail [34] to Mr. Gineys, Mr. Men, Mr. Siew, Mr. Haber and the Soucy sisters which states as follows: Hi Fellow Condo Owners, We have just negotiated a roof replacement of 9900 square feet at one of the condominium properties we manage. The original price quoted was $89,886 and we negotiated them down to $77,500. There seems to be something wrong if we have to pay $50,000 more for a roof that is almost one half the size?? Let me know what you think. I would appreciate your comments.

Best regards, [ 44 ] On December 2, 2011, the co-owners were notified of a special general meeting [35] to be held on December 13, 2011, and that was requested by Mrs. Stroll, Mr. Men, Mrs. Oelmann, Mrs. Griffin and Mr. Eich [36] who, together, accounted for 36.76% of the votes

of all co-owners. [ 45 ] On or about December 4, 2011, Mr. Gineys sent what is referred to as the third defamatory e-mail [37] to Mr. Eich, Mrs. Oelmann, Mr. Men, Mr. Siew, Mr. Haber and the Soucy sisters: Dear Friends, Please find, enclosed, a letter from the Cacharel administrators calling for a Special General Meeting. It will be taking place on Tuesday Dec. 13, 2011 and, unfortunately, after all the roof repairs have been completed.

Nevertheless, the administrators have failed to inform us if the repair works have really gone over our initial budget and if they will be finally requesting an additional $38,045 for the potential shortfall. On Monday, I will be sending to them a registered letter to inform them that we have received 4 quotes to replace the roof for significantly less than their initial assessment budget of $115,000. Therefore, should they exceed that amount, we should and can hold them personally liable for the cost differences as they have been negligent, and we have the right to refuse to pay the additional $38,045.

I truly look forward to your continuing support by electing new administrators at this special meeting and shedding light into the real cost of the roof replacement. I would also strongly suggest that we appoint a new property management firm which would be more courteous and offer better services to all the co-owners for 50% less then the costs we are currently paying. Let’s all touch base this week to discuss the action plan. Under no circumstances should we approve the additional special assessments for the shortfall in the budget of $38,045 !

Best regards, Meetings and developments after the alleged defamatory e-mails [ 46 ] On December 13, 2011, in addition to the co-owners, the Manager, LVM and lawyers for Plaintiffs and Defendants attended the meeting (the “ December 13 Meeting ”). Explanations were given, documents were available for consultation, including a grid comparing the bids. No minutes of the meeting were filed with the Court but Mr. Ferst admitted that the Directors chose to read the three defamatory e-mails and Mr.

Ferst apologized for having wrongfully represented the co-owners’ right to access documents held by the Syndicate, according to the Civil Code of Québec (“ C.C.Q. ”) . [ 47 ] Mr. Men testified that LVM refused to give him a copy of the various roofers’ quote. He left, disgusted with the whole exercise. [ 48 ] Mrs. Griffin testified that some owners said the roof could be replaced for less while others said they were satisfied with what had been done. She was disappointed when she left and testified that there was more dissatisfaction amongst the co-owners after the December 13 Meeting than before.

She stated that when she went to the meeting, she did not think that something was wrong, rather that perhaps something better was available. [ 49 ] Mr. Gineys testified that he raised the fact that the Manager was too expensive. He was told that this matter “ ne relevait pas de lui” . He gave Mr. Schnitzer two offers for management services [38] from reputable firms which were charging at least 50% of the Manager’s fee, but to no avail. The Court notes that the issue of management services was not a subject listed on the meeting agenda. [ 50 ] LVM’s representative admitted to Mr.

Gineys that Toiture Couture had not been invited to bid, even if they could have been invited, given their reputation, and the fact that the guarantee offered by Toiture Couture exceeded by five years the guarantee of Three Star Roofing. When Mr. Gineys asked Mr. Ferst what he thought about Toiture Couture’s bid, Mr. Ferst replied that it was simple to quote below a known price. Mr. Gineys described the mood of the meeting as one where the co-owners were confronted by a “ fait

accompli . Too late, the contract is signed, the documents are there for you to review ”. [ 51 ] Mr. Eich does not remember exactly what happened at the December 13 Meeting, but he knew that it was about dollars and cents; he thought that in a small condominium, with only 15 owners, it was normal for the co-owners to want information. Demand letter and reply [ 52 ] On December 20, 2011, Plaintiffs sent a letter [39] , offering Defendants two options:

a) Pay the Syndicate $26,173.95 by certified cheque no later than January 4, 2012, at 1:00 PM; or

b) Within the same delay, communicate a letter of retraction, apologizing for the false statements, and pay $10,173.95 to the Syndicate. [ 53 ] The letter also alluded to the fact that Mrs. Stroll had only paid on December 19, 2011, four months in arrears of her share of the common expenses. At trial, Mr. Gineys explained that, in fact, Mrs. Stroll had retained that sum since she thought that she was entitled to be compensated because of water damage to her apartment. [ 54 ] In any event, on December 23, 2011 [40] , Mr. Gineys’ attorney replied to the demand letter.

The Court considers it relevant to cite at length the second to last paragraph of the letter: Furthermore, as an additional gesture of good faith, without admission, our client would be ready to forward an email to the co-owners which would clarify the issue of the roof repairs and declare that he is now satisfied with the situation.

A draft of said email is attached to these presents for your comments. [ 55 ] The letter also contained the following paragraph: The parties must continue to live together in this condominium and we would suggest that the parties put this matter behind them and attempt to deal civilly with each other in the future. [ 56 ] The attached draft e-mail read [41] as follows: Dear co-owners of Le Cacharel, I think that we can all agree that the meeting held on December 13th, 2011, was very informative in regards to the process followed by the administrators for the work performed on the roof of the building.

In light of the information given during said meeting, my mother and I are now confident that the works performed were appropriate and the process duly executed by our administrators. I believe the special meeting is a good indication of a better communication to come between all co-owners. I thank all of you for attending and the administrators for the information given during the meeting. I take this opportunity to wish everyone a happy and prosperous New Year! Yours truly, [ 57 ] The attorney’s letter [42] and the proposed e-mail [43] remained unanswered and were not discussed. Mr. Gineys called Mr.

Ferst to ask what follow-up was foreseen for this matter. Mr. Ferst answered that it should be left to the lawyers. [ 58 ] On January 3, 2012, Plaintiffs’ motion to institute proceedings was issued. ANALYSIS 1. Can the Syndicate be compensated by Defendants for the trouble and inconvenience caused by the meeting of December 13, 2011 and the costs incurred as a result thereof? [ 59 ] The Syndicate claims that the December 13 Meeting was useless and a source of trouble and inconvenience.

Therefore, it asks that Defendants pay the fees invoiced by the professionals who attended the meeting [44] . [ 60 ] The December 13 Meeting was called pursuant to

Chapter 9 of the Declaration of Co-Ownership [45] , which reads as follows: SPECIAL MEETINGS OF CO-PROPRIETORS

Special meetings of the co-proprietors may be called by: […] b. By one or more co-proprietors, representing at least one-quarter (1/4) of the votes of all the co-proprietors. They address their request by registered letter to the Administrators, and shall set forth the matters which they are asking to be inscribed in the agenda of the meeting.

After this request is made to the Administrators, if notification of a meeting is not forwarded to the co-proprietors and mortgagees within ten (10) days of the request by the co-proprietors to call such meeting, then any co-proprietor may provoke the calling of a meeting by forwarding a notice to the co-proprietors and the mortgagees, which said notice must contain the signatures of the interested parties, and said interested parties must represent at least one-quarter (1/4) of the votes of all the co-proprietors; […] [ 61 ] This

chapter gives co-owners a right to request a meeting, which is not conditional on paying the cost associated with holding a meeting. [ 62 ] Mr. Gineys initiated the process for his mother but four other co-owners voluntarily supported him and three of them came to Court to explain their reasons. They were not coerced or forced to sign the request; their reasons for doing so were purely financial.

None of them thought that the Directors were bullies but all of them were wondering if the cost to repair the roof could be less. [ 63 ] The Syndicate decided to ask that the professionals, who had been retained to supervise the work, attend the meeting. It was entitled to do so. Therefore, in accordance with

Chapter 12 of the Declaration of Co-Ownership [46] , the Syndicate is responsible for paying the said professional fees. [ 64 ] The Court adds that if the November 7 Meeting served a purpose, considering the substantial increase in the cost of the work, it was reasonable for the co-owners, upon further reflection, to feel they needed more information in order to better understand the cost overruns and the possibility of avoiding them. [ 65 ] Before Mr. Gineys’ e-mail of November 14, 2011 [47] , Mr. Men wanted more information. Mrs.

Oelmann did not testify but her e-mail of November 22, 2011 [48] clearly shows that she questioned the costs and wanted more information, irrespective of Mr. Gineys’ e-mails. [ 66 ] Therefore, the December 13 Meeting cannot be considered to be an abusive request on the part of Defendants, aimed only at annoying or harming the Syndicate and its Directors, or other co-owners.

Furthermore, it gave Directors the opportunity to further and fully explain their decision and their management of the file, which in itself was positive gesture. [ 67 ] The Syndicate’s action against Defendants is therefore dismissed, with costs. 2. Were Mr. Gineys’ e-mails of November 14, November 19 and December 4, 2011 defamatory? [ 68 ] A person seeking a certain right must prove the facts on which his claim is based [49] . Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof [50] . [ 69 ] Mr. Ferst, Mrs. Kom and Mr.

Schnitzer instituted an action in libel. It is an action in civil liability [51] , requiring that Plaintiffs prove the alleged fault, namely defamation, damages and a causal link between the fault and the damages [52] . [ 70 ] The Court will first proceed to determine if there is evidence of a fault, namely defamation. [ 71 ] In Gagné v. Galand [53] , Justice Pierre-C. Gagnon summarized the teachings of the Supreme Court of Canada in Prud’homme c.

Prud’homme [54] as follows: [11] Au paragraphe 34, la Cour suprême s'exprime comme suit : La nature diffamatoire des propos s'analyse selon une norme objective… Il faut, en d'autres termes, se demander si un citoyen ordinaire estimerait que les propos tenus, pris dans leur ensemble, ont déconsidéré la réputation d'un tiers. [12] La Cour suprême cite avec approbation les auteurs Baudouin et Deslauriers et leur traité sur La responsabilité civile 3 , à l'effet que la responsabilité civile est engagée : 1) si les propos sont diffamatoires; 2) si l'auteur des propos est fautif, soit par malveillance (mauvaise foi, recherche du ridicule, de l'humiliation, de la haine ou du mépris envers la victime), soit par négligence (témérité, impertinence, incurie). [13] Selon Baudouin et Deslauriers, il faut abandonner l'idée fausse que la diffamation ne peut être le fruit que d'un acte de mauvaise foi comportant une intention de nuire 4 .

[14] La Cour suprême identifie trois situations susceptibles de constituer faute : 1) propos désagréables à l'égard d'un tiers que l'on sait faux; 2) propos désagréables à l'égard d'un tiers que l'on devrait savoir faux; 3) propos désagréables, mais véridiques, tenus sans justes motifs 5 . (On reconnaît ici la médisance). [15] Finalement, au paragraphe 38, la Cour suprême complète par une règle tout aussi importante.

Dans tous les cas, l'appréciation de la faute demeure une question contextuelle de faits et de circonstances, en tenant compte du besoin de concilier deux valeurs fondamentales : ▪ la liberté d'expression; ▪ le droit à la réputation. ________________________ 3 J.-L. BAUDOUIN et P. DESLAURIERS, La responsabilité civile , 7 e édition, Éditions Yvon Blais, 2007. 4 Cité au paragraphe 35 de l'arrêt Prud'homme . 5 Cité au paragraphe 36 du même arrêt. [ 72 ] In this matter, Plaintiffs are Directors of a Syndicate of co-owners.

This does not give the co-owners a licence to defame them but, as Justice Dalphond, j.c.s., as he was then, wrote [55] : Les dirigeants du syndicat des copropriétaires sont élus annuellement par l’ensemble des copropriétaires. À

titre de président du syndicat, Peyre est l’équivalent du maire d’une petite commune. En d’autres mots, il assume une fonction de gestion qui l’expose à la critique, que ce soit du conseil d’administration, de l’assemblée des copropriétaires, d’un résident ou d’un employé. [ 73 ] With these legal principles in mind, the Court now turns to the context of each of the allegedly defamatory e-mails to determine if the terms used fall within the scope of one of the three situations identified in the Prud’homme decision and if, given the context and circumstances and considering Mr.

Gineys’ right to freedom of speech, which includes the right to criticize the Directors’ decision, the Court may conclude that there was defamation. [ 74 ] From the outset, the Court notes that Plaintiffs offered no evidence to support their allegation that Mr. Gineys acted in bad faith throughout this whole matter. [ 75 ] The Court is convinced that when Mr. Gineys obtained the quotes prior to the May 31 Meeting, he did not intend to entrap the Directors. Given the content of Mr. Ferst’s e-mail of November 12 th , at 10:57 PM [56] and his testimony at trial, it is understandable that Mr.

Gineys did not mention the quotes at the May 31 Meeting. Even if Mrs. Stroll’s financial means were different and probably less than the means of her co-owners and of the Directors, Mr. Gineys did not want to antagonize Mr. Ferst, the Director in charge of the project, unless it became really necessary to question the validity of the estimated amount obtained by the Syndicate for the work. [ 76 ] The fact that Mr. Gineys offered [57] the Syndicate the services of his employer, a real estate management company, to replace the Manager does not mean that he was in bad faith.

In fact, at the December 13 Meeting, he came with quotes from other management companies. The Court concludes that Mr. Gineys was sincerely of the opinion that the Syndicate was paying too much for the Manager’s services. [ 77 ] Was Mr. Gineys insulted by Mr. Ferst’s e-mail [58] of November 12 th , at 10:59 PM [59] , and more particularly by the patronizing remarks contained in point no 6 thereof? Possibly. After all, he is a thirty-six-year old professional real estate manager, with some pride. In the Court’s view, he had reason to be hurt and upset by Mr. Ferst’s remarks.

E-mail of November 14 th , at 5:14 PM. [ 78 ] Plaintiffs have identified, as defamatory, the following words and expressions contained in the e-mail of November 14 th , at 5:14 PM [60] : − “intimidate us and prevent us”; − “they have also refused to give us access”; − “The position they have taken so far is completely illegal, totally irresponsible, and unprofessional”; − “They have been abusing their position, and, we have lost complete trust in the administrators and the management company”; − “What a shame !” − “In this moment of crisis, I would recommend the immediate resignation, as well as the resignation of the current management company”;

− “shedding light and full transparency”. [ 79 ] The use of “us” by Mr. Gineys is questionable. But by November 14, 2011, he clearly had a discussion with Mr. Men and he was under the impression, rightly or wrongly, that he had the support of the co-owners to whom the e-mail was sent. [ 80 ] From the evidence adduced at trial, the Court concludes that Mr. Gineys made a mistake when he assumed that Mr. Ferst’s attitude and statement of November 12 th were also those of Mrs. Kom’s and Mr. Schnitzer’s. Mrs. Kom and Mr. Schnitzer were not the author of Mr. Ferst’s e-mail of November 12, 2011. In fact, Mr.

Ferst wrote to Mr. Gineys that they had not yet been consulted by him. [ 81 ] In the Court’s view, the following content of the November 14 th e-mail constituted “unpleasant remarks” made about Mrs. Kom and Mr. Schnitzer, as individuals, that Mr.

Gineys should have known to be false: − “intimidate us and prevent us”; − “they have also refused to give us access”; − “The position they have taken so far is completely illegal, totally irresponsible and unprofessional”; − “They have been abusing their position, and, we have lost complete trust in the administration and the management company”; [ 82 ] But in a context where, “they” refers to “the administrators”, as the e-mail does throughout, the Court concludes that it is not Mrs. Kom or Mr. Schnitzer, as individuals, who were attacked by these statements but rather the office that they hold. At the time, Mr.

Schnitzer and Mrs. Kom deferred much, and probably rightfully so, to Mr. Ferst on engineering related issues. After all, he had, on behalf of the Board of Directors, successfully managed previous construction projects. Mr. Gineys knew that. Therefore he hastily concluded that Mrs. Kom and Mr. Schnitzer would support Mr. Ferst’s decision not to release the information. [ 83 ] A syndicate of co-owners is a democratic body. Freedom of discussion is essential. Money, or lack thereof, and the collective welfare of all co-owners are at stake.

Co-owners are entitled to criticize a decision of the Board of Directors or to question its decision- making process. As unpleasant as the criticism may have been for Mrs. Kom and Mr. Schnitzer, as individuals, the Court cannot conclude that it constituted defamation. [ 84 ] Mr. Ferst’s action and reaction were deemed by Mr. Gineys to be the Board of Directors’ action and reaction. Therefore, none of these “unpleasant remarks” fall within the scope of the legal criteria outlined in the Prud’homme decision. [ 85 ] Indeed, Mr. Ferst’s e-mail of November 12 th , at 10:57 PM, clearly insinuates that Mr.

Gineys’ requests were ethically questionable. Given the definition of “intimidate” in the Collins English Dictionary [61] , Mr. Gineys could have been, wrongly or rightly, of the opinion that Mr. Ferst was trying to intimidate him and, by extension, the other co-owners who shared Mr. Gineys’ views. [ 86 ] Mr. Ferst’s e-mails of November 11, 2011, at 10:57 PM [62] and 11:55 PM [63] are a clear indication that he would not provide Mr. Gineys with access to the documents in the data room and to the contract with Three Star Roofing.

Access to the grid comparing offers did not constitute an access to the actual quotes. [ 87 ] Mr. Gineys was allowed to express his opinion that such refusal by Mr. Ferst was illegal, totally irresponsible, unprofessional and abusive. It is an opinion, albeit a rather strong one, in a context where

article 1070 C .C.Q. allows access to copies of contracts to which the Syndicate is a party, to plans and specifications of the Building and to other documents relating to the Building and the Syndicate. [ 88 ] Also, the following remarks made in the November 14 th e-mail about the Directors do not fall within the scope of the situations envisaged by the Prud’homme decision: - “What a shame!” is an expression of how Mr. Gineys feels about the situation. - That Mr.

Gineys, on behalf of his mother, “wants to shed light and full transparency” does not mean that the Plaintiffs have not done so themselves, or that Plaintiffs do not agree to do so. - Recommending or demanding the resignation of an elected Director is a right under both the law [64] and the Declaration of Co- Ownership [65] . [ 89 ] Plaintiffs claim that Mr. Gineys is falsely representing there was a “crisis” on November 14, 2011.

In fact, they accused him of creating the “crisis” because he did not mind his own business, that he was in bad faith and that he wanted to obtain a management contract. [ 90 ] The Court has already explained why it concludes that Mr. Gineys was acting in good faith and was more interested in the Syndicate paying less for the management of the Building than in obtaining any contract. [ 91 ] At the November 7 Meeting, the co-owners were informed that the estimated cost of $115,000 for the replacement of the roof would now reach $153,000, an increase of more than $38,000, or one third.

By November 14, 2011, the contract had been signed and the work was to start. The urgency was obvious: Mr. Ferst was firmly set in his refusal to reconsider the Syndicate’s decision. There is, rightly or wrongly, a “crisis” in Mr. Gineys’ opinion. [ 92 ] The Court therefore concludes that a reasonable person could have made the impugned remarks in the same context [66] . E-mail of November 19, 2011 [67]

[93] Plaintiffs argue that the following paragraph is an innuendo of fraud: This really explains why the administrators of the Cacharel and Mr. Shibata do not want to release to us any of the roof repairoffers they have received… [94] The Court disagrees. The sentences that appear in the November 19th e-mail above this one explain that, according toMr. Gineys, the price to redo the roof is $50,000 too high.

It does not mean that the Directors took or diverted that sum. [95] This letter was sent in order to obtain the support of co-owners to call a special general meeting to discuss and possibly review asignificant financial issue. As already mentioned, it is a co-owner’s right to do so under the Declaration of Co-Ownership[68].

E-mail of December 4, 2011[69] [96] Plaintiffs claim this e-mail contains a false accusation that “they have been negligent” and that the request for the co-owners’support in “shedding light into the real cost of the roof replacement” is an innuendo that the Directors are hiding something when theyare not. [97] Given the context of this e-mail, the Court cannot conclude that the statements fall within the situation identified in thePrud’homme decision. As a co-owner and in light of the increase in costs, Mrs. Stroll and Mr.

Gineys could have been of the opinion thatawarding the contract to Three Star Roofing was negligent. It was fair criticism. 3. What damages were caused to Mr. Ferst, Mrs. Kom or Mr. Schnitzer as a result of the alleged defamatory e-mails? [98] Having concluded that Mr. Gineys did not commit defamation or a fault, the Court could simply dismiss the Directors’ action.However, considering the possibility of an appeal, the Court states that had it had found that Mr.

Gineys had committed defamation or afault, it would have concluded that the Directors did not prove their alleged damages or that said damages were the sole and direct resultof Mr. Gineys’ statements. [99] In Bou Malhab v. Diffusion Métromédia CMR Inc.[70], the Supreme Court of Canada wrote that an action in defamation: [22] …The plaintiff is entitled to compensation if fault, injury and a causal connection are all present.

Fault is determined by lookingat the defendant’s conduct, while injury is assessed by looking at the impact of that conduct on the victim, and a causal link isestablished where the decision maker finds that a connection exists between the fault and the injury. This is an area of law where it isimportant to make a clear distinction between fault and injury. Proof of injury is not a basis for presuming that a fault was committed.

Proof that a fault was committed does not, without more, establish the existence of a compensable injury. [32] …First, the court has to determine whether a reasonable person would have made the impugned remarks in the same context.

Second, if the court answers no and finds that the person who made the remarks has committed a fault, it must ask whether the remarkshave decreased the ordinary person’s esteem for the victim…. [33] Given the importance of the ordinary person and reasonable person standards, we should consider what they involve. [40] The reasonable person acts in an ordinarily informed and diligent manner. He or she shows concern for others and takes thenecessary precautions to avoid causing them reasonably foreseeable injury (Ouellet v. Cloutier, (SCC), [1947] S.C.R.521, at p. 526).

He or she respects fundamental rights and therefore cannot disregard the protection established in the charters. Since thestandards maintained by the reasonable person are consistent with Charter values, he or she is careful not to violate the rights of others. [41] Although the ordinary person reacts like a sensible person who, like the reasonable person, respects fundamental rights, caremust be taken not to idealize the ordinary person and consider him or her to be impervious to all negligent, racist or discriminatorycomments, as the effect of this would be to sterilize the action in defamation.

As the Superior Court stated in Hervieux-Payette v. SociétéSaint-Jean-Baptiste de Montréal, (QC CS), [1998] R.J.Q. 131 (reversed by the Court of Appeal on other grounds,)), [translation] “[t]his ordinary person is neither an encyclopedist nor an ignoramus” (p. 143). As I have noted, inassessing injury in an action in defamation, the ordinary person is only an expedient used to identify damage to reputation. Judges musttherefore avoid limiting themselves to an inflexible test that would prevent them from recognizing actual damage to reputation where itoccurs. (Our underlinings) [100] Mr.

Gineys’ comments were directed at a group: the Directors. Therefore, would an ordinary person have less esteem for each ofthe Directors as a result of the alleged defamatory e-mails? [101] All Directors expressed how concerned and upset they were after they read the content of what they considered to be defamatorye-mails. [102] The Court accepts that it may indeed be upsetting for an individual to be accused, by association in the case of Mrs. Kom and

Mr. Schnitzer, of “bullying” or of refusing access to documents. But this is not sufficient to award damages. This is a subjective perception, not the perception of the ordinary person. [ 103 ] The defamatory nature of the comments must be assessed objectively [71] for each Director. [ 104 ] In this relatively small syndicate of co-owners, where the Directors and the co-owners have a longstanding relationship, the Court cannot conclude that an ordinary person would believe that Mr.

Gineys’ remarks, when viewed as a whole, brought harm to the reputation of any of the Directors. [ 105 ] In fact, all the co-owners who testified denied Plaintiffs’ allegation that they were being considered or looked upon as though they were bullies. However, each said co-owner readily admitted that, like Mr. Gineys, they were upset at the costs of repair of the roof and wanted the Syndicate to pay or at least attempt to pay less, if possible. Therefore, if there was resentment on their part, it was due to the monetary impact of the decision and not to Mr. Gineys’ remarks or statements.

This unhappiness about the situation also appears in Mrs. Oelman’s e-mail. [ 106 ] Displeasing co-owners by a decision is a potential consequence of being a Director. It comes with the territory. It is hard to please every one. It is even harder when the decision entails an obligation for the co-owners to spend money. [ 107 ] Despite what they claim to be hurtful false accusations, the Directors remained in office.

In fact, their re-election is additional evidence that the co-owners’ esteem for the Directors was not decreased by the alleged defamatory e-mails. [ 108 ] In terms of causality, the Court points out that until the Directors chose to read the defamatory e-mails at the December 13 Meeting, their circulation was limited. [ 109 ] Furthermore, by refusing to discuss the content of the apologetic e-mail proposed by Mr. Gineys on December 23, 2011 [72] , the Directors contributed to the perpetuation of an unfortunate situation.

They could have agreed on the terms of an apologetic e-mail and attempt to obtain the indemnification sought by the Syndicate for the December 13 Meeting through the Small Claims Division of this Court. [ 110 ] In any event, this judgment clearly affirms that, as of November 14, 2011, Mrs. Kom and Mr. Schnitzer, as individuals, had not attempted to intimidate Defendants or refuse them access to documents. Mr. Ferst was the only Director who had voiced his opposition to the release of the information requested by Mr. Gineys.

This conclusion in itself should suffice to clear their reputation if any harm was suffered. [ 111 ] With respect to the claim for punitive damages, there is no ground to award them under the Charter of Human Rights and Freedoms [73] . Even if Mr. Gineys wrongly attributed Mr. Ferst’s reaction to Mrs. Kom and Mr. Schnitzer, evidence was heard that Mr. Ferst was really in charge and that if they had been consulted by Mr. Ferst, Mrs. Kom and Mr. Schnitzer would have supported him. Mr. Gineys did not intend to attack the Directors’ reputation.

He was sincere in his belief that he was exercising his mother’s right to fair criticism of the Directors’ decision. [ 112 ] Finally, the Syndicate paid Plaintiffs’ legal fees in this matter. The Syndicate had an obligation to defend the Directors. It chose to go a step further and to pay the Director’s legal costs to sue Defendants. Therefore, the legal costs do not constitute damages for the Directors. [ 113 ] In any event, the award of extra-judicial fees is exceptional. Certain criteria must be met [74] , in particular an abuse of procedure, and these criteria were not. 4. Can Mrs.

Stroll be held responsible for Mr. Gineys’ fault? [ 114 ] There is no need to answer this question given the conclusions reached by the Court. Suffice it to say that rules of mandate [75] are applicable. 5. Are the present proceedings taken against Defendants abusive? [ 115 ] The action against Mr. Gineys could probably have been avoided if Plaintiffs had agreed to discuss the text of the apologetic e- mails [76] . Defendants will have to pay important extra-judicial fees for a case that could possibly have been avoided.

This being said, as unfortunate as it may appear, the Court cannot conclude that the criteria to award extra-judicial fees to Defendants were met [77] . [ 116 ] Mr. Gineys exercised his mother’s rights to vigourously criticize the decision of the Board of Directors. He and she have to support the consequences. Therefore, Defendants’ Cross-Demand for payment of their extra-judicial fees must be dismissed. [ 117 ] However, the Court, using its discretion, will not award judicial costs to the Directors and Defendants on the principal action or on the Cross-Demand.

FOR THESE REASONS, THE COURT: [ 118 ] DISMISSES the action of the Syndicate of Co-Ownership le Cacharel, with costs; [ 119 ] DISMISSES the action of Peter Ferst, Ellen Kom and Nick Schnitzer against Defendants, without costs; [ 120 ] DISMISSES Defendants’ Cross-Demand, without costs.

____________________________ MARTINE L. TREMBLAY, J.C.Q. Me Daniel Cooper Marcil & Cooper Plaintiffs’ attorney Me Armand J. Elbaz Colby Monet Demers Delage & Crevier Defendants’ attorney Hearing dates: March 12, 13 and 14, 2014.