I hope this is the correct count, but from the court records it appears that nine different judges have heard arguments on the merits of this case in one form or another. On four different court cases, and three appeals. I could understand the point of judicial bias or incompetence if two or three judges had been involved. The key issue they all have agreed on is that you did not enter into a commercial lease - but that you entered into a timeshare plan.
At some point is the point at law not well settled?
The Honourable Madam Justice Kirkpatrick
The Honourable Madam Justice D. Smith
The Honourable Madam Justice Garson
The Honourable Madam Justice Loo
The Honourable Chief Justice Bauman
The Honourable Madam Justice D. Smith
The Honourable Mr. Justice Goepel
The Honourable Mr. Justice Branch
The Honourable Judge L.D. Young
Do you honestly believe so many judges in your court system are incompetent or on the take?
From the court:
In my view, there is absolutely no support for JEKE’s argument beyond the common fact that both types of relationship are governed by contract. However, unlike a time share, a commercial tenancy involves a one-on-one relationship between a landlord and a tenant that bears little resemblance to the contracts here which govern the collective nature of the interests held by the participants in a time share. The fundamental nature of a time share interest involves not only the creation of a contractual relationship between an owner and the developer, but also a relationship between all owners in the time share. This is evident in many ways.
I sure hope the nine judges are not incompetent or complicit, but the logic they followed in arriving at their decision is disturbing. Not because the TS Users (TSU) lost the case, but because the judges departed so far from the terms of the contracts/leases. Nine justices being in unanimous agreement does not strengthen the case, it weakens it. How is it possible that nine justices could review a mountain of evidence and not one find one point in favour of the TSU? Not one! It defies logic. Seems the decision had already been made in favour of the resort owners, and the duty of the justices was to dress it up in pretty sounding legalese.
I think it was Justice Loo who asked the rhetorical question, "if the timeshare owners don't pay, then who" - and inadvertently revealed her legal myopia.
You say a key issue they have agreed on is that you (we) did not enter into a commercial lease - but that we entered into a timeshare plan. Well so what? In other words, they say we do not have a lease we have a timeshare plan. The justices had to draw that distinction - it was vital to their flawed decision. The reason being that leases, lessors, and lessees have well established legal rights and responsibilities.
Definition of a lease: "A contract by which one party (Lessor) conveys land, property, services, etc. to another (Lessee) for a specified time, usually in return for a periodic payment." Sounds to me like we have leases. But I know for sure I have a lease because my contract says it is a lease, and throughout the contract the resort owner is referred to as the Lessor and the TSU the Lessee. Here are some important characteristics of leases that can be found in any real estate law textbook or online: "The
Lessor is bound to deliver the leased property to the Lessee in good condition." "The
Lessee is not liable for loss or damage resulting from proper use." Clearly Northmont had a legal right to supply the Lessees with a property in good condition and it is their responsibility to maintain it in good condition. So what is the legal recourse if the Lessor breaches his responsibility to deliver and maintain the property in good condition: "In case the leased property is not delivered in a condition suitable for the purpose on which it is leased, the Lessee may terminate the contract." So at this point we can give credit to the nine justices for being competent because they knew the established rights and responsibilities of Lessors and Lessees was going to be problematic to their decision. So nine justices unanimously concluded that it was not really a lease in the usual sense of the word, it was a timeshare plan.
Now that the justices have rebranded the contract, they can proceed to run roughshod over its clauses, the most egregious being adding capital costs to the list of operating costs. Clause 9 lists the operating costs, but nowhere are capital costs to be found. An item as trivial as garbage disposal is included but capital costs for reconstruction of faulty buildings amounting to $40 million are not. How then do the justices conclude that we are responsible for reconstruction of faulty buildings? They simply say it is so: "
I conclude that the plain reading of paragraph 9 is that all costs relating to the operation of the Resort, whether in the nature of capital costs or not, are to be borne by the owners. This applies even in the event of reconstruction of parts of the Resort as needed, whether from deferred maintenance issues or otherwise." Voila, the TSU are now stuck for maintaining the property in pristine condition - some forever and some for the remainder of their 40 year leases, unless they pay the ransom to get out.
Clause 13 in my lease, Default Of The Lessee In Any Payment, seems to be completely ignored by the justices in favour of Northmont's creative cash grab. But Clause 13 clearly states that if the Lessor takes back the timeshare, they pay the Lessee a fractional amount of the value of remaining timeshare.
Clause 38, Modification To Lease which is supposed to prevent unilateral changes to the Lease "if changes in any way prejudice the rights of existing lessees" is similarly ignored, and the courts have allowed modifications to the lease to correspond to the test case lease.
So no, I hope our judges are not complicit in a flawed decision. But were the courts somehow influenced by the Province of B.C. and possibly Alberta who don't want a major tourist destination to fail. Nor do they want to pump in public money, which has been known to defeat governments? I can't help but wonder.
