Your informing us that we can all read the judgement and form our own ideas is not exactly earth shaking. Of course we read the judgement and formed opinions. Then it is time to draw conclusions and summarize the salient points for public consumption in a public forum. It is not selective editing. Not everyone wants to wade through 106 pages of what sometimes is nothing more than legal mumbo-jumbo, which may appear learned and final, but in fact it is not. The legalize has to be condensed to the main message and conclusion. If you think our anger over the 100% rulings in favor of the Defendant is hyperbole, excuse us for getting angry over an egregious injustice.
You also seem to think that Fitzpatrick's ruling is somehow irrefutable truth. But, one such as me has not been a long-time inhabitant of this spinning orb without developing some healthy skepticism. I also know that where there is money there is influence; and where there is big money there is big influence. (Lawyers at Norton Rose tried to cosy up to our lawyer and even asked him "to join the team," and they would direct legal work his way, which of course he declined.) Judges are human, they can be biased, and they can be influenced. I'm not saying the judge was paid off. The Judge or Northmont would not be that stupid. But, a luncheon meeting between a high official within Northmont and a well placed B.C. government official to lay out the problem could occur. The B.C. government does not want a failed major tourist attraction on it's hands. Nor would they want to pump public money into a shoddily built failing commercial facility. The easy way out is to tap into the TS owners. So the government official then has a meeting with a high placed person within the judicial system and advises that the B.C. government would sure hate to see Northmont fail. The high placed person in the justice system then whispers into the Judge's ear that the Government does not want Northmont to fail. There are some plum court assignments and promotions coming up. Conspiracy theory? Maybe. I don't know if this happened. I'm only speculating. But, as I said, I've been on this planet a long time, part at the management level within government, and I have developed some skepticism.
Even after wading through the legalize and cherry-picked case law, I find it incomprehensible that Fitzpatrick could reach the conclusions that she did. To wit:
- Fitzpatrick's ruling holds the TS owners responsible for the re-constuction of shoddily built resort buildings, in some cases not built to code. Buildings that should have a lifetime of 50-60 years or longer are failing after only fifteen years, and Fitzpatrick says we're responsible. The thought does not seem to occur to her that the builder has a legal and fiduciary duty to market a sound product to the public built to normal construction standards, and that when they don't, it is misrepresentation resulting in fundamental breach of contract. Astonishing!
- My contract is a lease. Lessees are not responsible for capital or structural replacement. I don't buy her arguement that ours are not like ordinary commercial leases. A lease is a lease is a lease.
- My lease does not specify "capital costs" in the list of expenses. That capital replacement is somehow included in one of the other catch-all items just does not wash. For example, a relatively minor expense such as insurance is included in a separate line item. Surely, if it was meant to be, capital replacement or major reconstruction that could amount to, say, $50 million dollars would be front and center in the list of expenses so as to not leave any doubt.
- Why after the bankruptcy and the takeover by the new owners, did they try to have lessees convert to co-ownership agreements with new contracts that added the clause, "pay the cost of capital improvements that may from time to time be required." The reason is clear to everyone but Her Ladyship; the original lease agreements did not include capital costs, nor was it ever intended that lessees be responsible for capital improvements.
- My lease gives a formula for settlement in the event I default. Basically, I forfeit the timeshare and they pay me for remaining time at a discounted rate. Fairmont says they don't have to follow the clause in the agreement, but rather I forfeit the timeshare AND pay them a sum of money. In effect paying for the timeshare twice, but being done out of the timeshare.
- Fitzpatrick takes the liberty of combining all leases and co-ownership agreements into one category which, of course, is the one most advantageous to Northmont. Yet it is her that admonishes us to follow the ordinary wording in the agreement. She has, in effect, made everyone financially responsible for all costs including major construction and reconstruction as if they were owners, but without having the financial benefit of ownership. Where is the justice? Where is the common sense?
- My lease states that a Lessee's Association would be formed, or in the case of the co-ownership agreements, an Owners' Association. One was never formed - a breach of contract. Major financial responsibility without representation violates all principles of business associations.
- The latest arrogance of Northmont is, with Fitzpatrick's ruling in hand, to convert all leases prior to 2003 to the 2003 lease. With the sending of an email they think they can nullify my lease that I signed in 2000 to that of a stranger's agreement who signed in 2003. The arrogance is just astonishing.
So, Real World, I don't know what alternate universe you live in, but it's not the same one as me.
