Monday, November 28, 2005

Vancouver, Pendrell Place: Mr. Monk questions the authority of G. Stephen Hamilton to act for the strata corporation





NOVEMBER 28, 2005





 Mr. Monk questions the authority of G. Stephen Hamilton to act for the Strata Corporation, Strata Plan VR 1008, Pendrell Place, 1819 Pendrell Street, Vancouver, BC, Canada








 29     MR. MONK:  My Lady, you'll note at the last case

        30          management conference it's Mr. Hamilton that

        31          brought up this point on behalf of Mr. Lithwick's

        32          clients, who told you that Mr. Oldaker's petition

        33          would affect other lawsuits.  The only other

        34          lawsuit that the strata corporation is involved in

        35          is L0116 -- 11861, which is in reference to a

        36          meeting which was held.  So why is Mr. Hamilton

        37          addressing Mr. Lithwick's clients' concerns to you

        38          at the last case management conference?  That's a

        39          good question, I believe.

        40               My Lady, at the conference held on

        41          October 28th, 2005, Mr. Stephen Hamilton explained

        42          his inability to respond to Mr. Oldaker's petition

        43          was a result of the fact that section 108 of the

        44          Strata Property Act made it necessary to convene a

        45          meeting of the owners so that funds could be

        46          levied for that specific purpose.  An emergency

        47          meeting of the members of the strata council was











         1          held on November 2nd, 2005, at which the members

         2          of the strata council adopted a resolution for the

         3          very first time to engage Mr. Hamilton to

         4          represent the respondent and to authorize the use

         5          of common funds for that purpose.  You will note

         6          that being served with Mr. Oldaker's petition on

         7          October 4th, 2005, did not create as much of an

         8          emergency as did the problem of Mr. Hamilton being

         9          paid.  Mr. Hamilton did not see fit to advise four

        10          members of the strata council, who are

        11          Mr. Lithwick's clients, that they had a conflict

        12          of interest and could neither attend or vote on

        13          those resolutions, nor that section 167(2) of the

        14          Strata Act proscribed the use of common funds to

        15          pay for his services.

        16               My Lady, I'm experiencing deja vu.  I will

        17          explain how.  I here have a tape recording of a

        18          meeting of the members of the strata council that

        19          was held in Mr. Hamilton's office on May 30th,

        20          2001.  I was a member and its vice-chair.  On this

        21          recording you can hear Mr. Gonzales, the husband

        22          of Lynne Gonzales, who was also a member of

        23          council, and myself, repeatedly asking

        24          Mr. Hamilton to explain under whose authority he

        25          was proposing to intervene in Mr. Oldaker's

        26          original petition to have an administrator

        27          appointed or to be acting for the strata at all in

        28          that matter.  In an attempt to intimidate me,

        29          Mr. Hamilton had the notice of call for that

        30          council meeting served to me by a process server

        31          at the expense of the owners.  Upon being

        32          requested about his status as corporate counsel,

        33          Mr. Hamilton can be heard refusing to answer the

        34          question and stating that the council meeting

        35          which he -- which he served me with in order to

        36          attend was only to address how to deal with

        37          Mr. Oldaker's petition and nothing else.

        38          Mr. Stephen Hamilton advises Mr. Gonzales and I

        39          that he was acting on the basis of a request made

        40          by four concerned members of the strata council.

        41          When I arrived at Mr. Hamilton's office that day

        42          with Mr. and Mrs. Gonzales, we were required to

        43          wait in the waiting room for nearly an hour before

        44          being allowed in the conference room while

        45          Mr. Hamilton --

        46     THE COURT:  Mr. Monk, I'm going to stop you for a

        47          moment.  Where are we going with this?  What --














         1     MR. MONK:  Where we're going with this, My Lady, is the

         2          resolutions that were just passed on November --

         3          just last week -- there are four members of

         4          council, who are Mr. Lithwick's clients, who stand

         5          to lose -- who stand to suffer having to pay us

         6          damages, and none of this was disclosed to the

         7          owners.  They stand to gain directly by having

         8          Mr. Hamilton intervene in Mr. Oldaker's petition.

         9          That's where I'm going.  And, My Lady, if I

        10          could --

        11     THE COURT:  Mr. Monk, I don't want to cut you off in

        12          any case, but you do understand that this is a

        13          case management conference.  We're talking about

        14          how to get to the hearing of the petition.

        15     MR. MONK:  I do understand that, My Lady, but I --

        16          Mr. Hamilton has been questioned about his

        17          authority to be acting on behalf of the owners --

        18     THE COURT:  Yes, I understand that.

        19     MR. MONK:  -- before, during and after.  When is the

        20          correct time to find out on whose authority

        21          Mr. Hamilton is acting?

        22     THE COURT:  Mr. Monk, there are various ways, I

        23          suppose, that you can attack that authority, but

        24          the issue has to be before the court in order for

        25          there to be a decision.  And in the context of

        26          simply management conferences, there are not very

        27          many decisions that are there to be made.  The

        28          decisions tend to be about procedural kinds of

        29          matters.  And while I appreciate that this might

        30          be called procedural, it is beyond the usual --

        31     MR. MONK:  But, My Lady, Mr. Hamilton is standing

        32          before you explaining that the owners have passed

        33          resolutions while he has omitted to explain the

        34          fact that none of the owners have been told that

        35          four members of the council are in conflict and

        36          should not be presenting them with resolutions nor

        37          voting on them.  And this information --

        38     THE COURT:  Mr. Monk, what would you like me to do

        39          about that?  What are you saying should occur?

        40          What ...  Is there an order that you are seeking?

        41     MR. MONK:  Actually, if the court could ask

        42          Mr. Hamilton to produce all the resolutions which

        43          have been passed in the last five years to approve

        44          his funding, that would be very helpful.

        45     THE COURT:  Mr. Hamilton?

        46     MR. R. HAMILTON:  Well, this is an issue that has

        47          arisen from time to time over the last six years














         1          while Mr. Stephen Hamilton and I have been

         2          involved in various aspects of these cases.  It's

         3          a concern to my clients, who are two owners, that

         4          they've been co-opted to pay for the defence of

         5          their actions in the past --

         6     THE COURT:  Mr. Hamilton, how do you propose that that

         7          be addressed in the context of this petition?

         8     MR. R. HAMILTON:  I realize we're short of time.  I

         9          think that either Mr. Monk or my client should

        10          perhaps consider a notice of motion that would

        11          determine the validity of Mr. Stephen Hamilton's

        12          continuing to act and if there is a conflict or

        13          not.  That's an issue I haven't resolved in my

        14          mind.  It's an issue that would take some time,

        15          given the history of this case.  And I may not

        16          even get instructions to bring that.  But Mr. Monk

        17          could certainly be able to bring such an

        18          application, if it were considered appropriate.

        19               And how that would affect the ultimate --

        20     THE COURT:  Well, that is a matter for you,

        21          Mr. Hamilton.  I don't direct what motions you

        22          should bring or what issues you should raise --

        23     MR. R. HAMILTON:  I understand.  I understand, My Lady.

        24     THE COURT:  -- before the court.  That is up to you.

        25     MR. R. HAMILTON:  I understand.  You asked me, though.

        26     THE COURT:  Yes.

        27     MR. R. HAMILTON:  I understood your question to be how

        28          could the issue be dealt with, and that is one

        29          way, I would think.

        30     THE COURT:  Do you propose to do that, or are you

        31          just --

        32     MR. R. HAMILTON:  As I say, I have no instructions to

        33          do that.  I am considering it, and my clients are

        34          considering my advice to them on it.

        35     MR. MONK:  My Lady, Mr. Hamilton's illegal involvement

        36          has cost me tens of thousands of dollars.  And to

        37          suggest that a person like myself who staffs

        38          hotels for a living should be the one who

        39          regulates this industry and come up with the funds

        40          to make this motion is somewhat disturbing to me.