161.      The trial judge confirms the defendants failed/refused to approve the required and necessary repairs on east deck that is the responsibility of the defendants under s.72 of the Strata property act [66] and breached their duty of care and allowed the east deck to continue to dilapidate and rot from 1991 to 2008 until the deck collapsed in June 2008. The evidence confirms the defendants’ tarp the east deck from June 2008 to August 2009.

 

162.      The evidence established at the trial confirms that the defendants made no reasonable efforts to carry out their statutory duty and breached that duty on east deck from 1991 to 2009. The evidence confirms the defendants made the wrong determination in 2001 and failed to approve the required repairs on common property that were the responsibilities of the defendants and breached their statutory duty and obligations imposed on them by the Strata Property Act s. 72 to repair and maintain the common property in good repair and allowed the damage to continue to occur to the Hirjis’ unit.

 

163.      The evidence established at the trial confirms that the repairs that were completed on west deck in November 2001 were poorly carried out and water continued to leak intermittently on west deck until 2009 as confirmed by the evidence.

 

164.      The evidence established at the trial confirms the defendants despite the repeated written complaints by the Hirjis’ in trial Exhibits 9, 10, 11, 12 the defendants ignored The Province of British Columbia’s established legal requirements for, among other things, remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater.

165.      The evidence established at the trial confirms despite the repeated requests by the Hirjis’ the defendants failed to take a single action from 2002 to 2006 or investigate the Hirjis’ complaints and carry out their legal obligations imposed by the legislation and allowed the Hirjis’ unit to dilapidated and the damage to continue to occur on east deck and ignored the recommendation of their own engineers CSA from 1991 to 2008 until the deck collapsed in June 2008.

 

166.      The evidence established at the trial confirms the defendants’ engineers JRS in May 12, 2009 estimated the cost of required repairs at $73,296 that were the responsibility of the defendants to remediate that were approved by VR-44 on the legal advice of their legal counsel Mr. Bleay against the average cost of $10,000 to $15,000 for repairs other units as confirmed by the trial judge in paragraph 58 in reasons for judgment.

 

167.      The evidence established at the trial and the trial judge’s findings in paragraph 58 confirms to what extent the defendants neglected their duty of care owed to the Hirjis’ and discriminated against the Hirjis’ and allowed the Hirjis’ unit to dilapidated and forced the Hirjis’ to live in substandard conditions.

____________________

[66] Strata property act  

                                                                                     45

168.      The evidence established at the trial confirms the Hirjis were the only one in the history of the entire complex who had to move out of the unit in alternative accommodation due to the dilapidated condition of the unit from 1991 to 2009. The trial judge in Reasons for Judgment at paragraph 58 confirms the following facts;

 

[58] In addition, Mr. Alexandru testified that all the other units in Lillooet Place were repaired pursuant to the balcony remediation project at an average unit cost of between $10,000 and $15,000. The evidence also established that no other owner had alternate accommodation and moving costs paid for while repairs were done to their unit.

 

169.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  142(t) 147 and 157 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.

[142] t. The amount of money spent on the plaintiffs’ unit was disproportionate to the nature of the repairs that were truly needed. This disproportionality was largely due to the defendant’s cautious and reasonable response to Mr. Hirji’s exaggeration, and what I have found to be misinformation about the water leaks and structural problems of his unit. 


[147] The plaintiffs have failed to prove that the defendant did not meet the applicable standard of care. I find the evidence demonstrates that the defendant responded promptly, diligently, and fairly to Mr. Hirji’s every complaint. I make this conclusion on a bare assessment of what happened with Mr. Hirji’s unit.

 

[157] Taking everything into account, I conclude the plaintiffs have failed to prove the defendant was negligent. I find the defendant met the standard of care with regard to all of the plaintiffs’ complaints.

170.       The trial judge’s falsehood in Reasons for Judgment at paragraphs speaks for itself. The trial judge contradicts her own findings in paragraphs 58, 69, and 135. The trial judge in Reasons for Judgment suppressed the real facts and falsified the facts in paragraph 142t, 147, and 157 and acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.

                                                                       46

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 142(t), 147, and 157 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

HIRJIS' WRITTEN SUBMISSION PARAGRAPH 82

 

171.      Evidence at the trial confirms that John Boatman Second amended response to the civil claim filed on Feb 21, 2012 at paragraph 4.2 (c) states:


"the Strata never retained JCB to investigate, renovate or replace "Beam Bl" nor did JCB undertake any work related to "Beam BI".

TRIAL EXHIBIT 17 MR. BLEAY'S LETTER TO VR-44 ON MAY 14, 2007.

 

172.      The evidence established at the trial in said Exhibit 17[67]  that was admitted as evidence with the consent of the defense who confirmed that the content thereof had been communicated to the defendants confirms the following;


a). On May 7, 2007 Mr. Bleay than legal counsel for VR-44 attended a meeting at Hirji’s residence.


b). Mr. Bleay was given a tour of the residence and was informed of problems and unreasonable refusal of the defendants VR-44 to complete the agreed repairs in 2001.

c) Mr. Bleay after observing the uncompleted repairs on both decks confirms the following in his letter of May 14, 2007 to VR-44: “I can state that there is a certain amount of unfinished work with respect to the rear deck off of the living room and the front facing deck.”

     

d) In my view, it is important at this time to identify and rectify the water ingress problems that are the responsibility of the Strata Corporation to address. In the event that the strata corporation is not confident that the current contractors and/or engineer(s) are able to properly identify the source of water ingress problems and repair the problems, the strata corporation should take steps to retain a qualified professional to investigate the problems and provide a detailed report, including a structural report to ensure that any structural issues are addressed, with recommendations on what further repairs are needed to remedy the problems.”

 

173.      Evidence established at the trial confirms that the defendants ignored/refused to act on the sound advice of their legal counsel Mr. Bleay and failed to obtain a detailed report on the structure of the unit in May 2007 and neglected their duty of care owed to the Hirjis’.

 

174.      Evidence established at the trial confirms that despite the fact that the Hirjis’ specifically requested in the council meeting on August 21, 2001 that everything done by Van Condo and the council and all communications with the Hirjis’ be done in writing and faxed the defendants ignored and failed to put anything it in writing and failed to inform the Hirjis’ the agreed repairs in 2001 to avoid any arguments latter relating to the repairs that were going to be carried out by the defendants on the Hirjis’ unit in 2001.

____________________

[67] See [Binder 2 page 107 to 108] Trial Exhibit 17 Mr. Bleay’s letter of May 14, 2007.

     47

 

 THE PLAINTIFFS' NINTH FURTHER AMENDED NOTICE OF CIVIL CLAIM.

 

175.      The Hirjis’ in their Ninth Further Amended Notice of Civil Claim[68] at paragraph 37 states:

 

“In or about late August or early September of 2001, Ms. Lynn Campbell, an agent, servant and/or employee of VCS informed the Hirjis’ by telephone that the Strata Council of the Defendant VR 44 had approved all the repairs listed in August 12, 2001 quotation it had received from John Charles Boatman, doing business as JCB MANAGEMENT. Ms. Campbell informed Mr. Hirji that the repairs would be carried out “soon” Had the defendants acted reasonably and carried out a simple request made by the Hirji and faxed the details via fax than the approved repairs would not have been an issue”.

 

176.      The Hirjis’ in their Ninth Further Amended Notice of Civil Claim at paragraph 44 states:

 

“In or about November of 2001, Ms. Lynn Campbell of VCS informed the Hirjis’ by telephone that the remainder of the repairs would be completed in early 2002. After the work was done in the early fall of 2001, the Defendant VR 44 and its agents failed or refused to finish the repair work left undone in the fall of 2001, and failed and/or refused to remediate the leak or leaks on east deck. The west deck which had recommenced leaking 10 months it had been remediated in the fall of 2001. The Defendant VR 44 sent in the same contractor, namely JCB to repair the leak or leaks in the west deck. That said second repair lasted for about 8 months and then the west deck started leaking again. From the time of that second repair of the west deck in rnid-2002”. Again had the defendants acted reasonably and carried out a simple request made by the Hirji and faxed the details via fax than this would not have been an issue”

 

177.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 2 that contains notes made by Ashraf Lalani who attended the said Strata Meeting of August 21, 2001. A copy of these notes was delivered by Mr. Hirji and was provided to the defendants soon after that meeting before VR-44 commenced the repairs on east and west decks in 2001. Mr. Hirji informed everyone in that council meeting on August 21, 2001 including strata manager Ms. Campbell who prepared the strata minutes of August 21, 2001 and Mr. Peter brown who were present in the meeting. Mr. Hirji informed the council amongst other things the following:

 

“Mr. Hirji drew a diagram of center post and the support beam and pointed out the potential structural problems which are components of the structure known as “Beam B1" in this litigation”.

____________________

[68] The Plaintiffs' Ninth Further Amended Notice of Civil Claim.

     48

 

178.      The  evidence confirms the trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court. The trial judge states the following;


[142]b. Mr. Hirji did not make a verbal complaint to Ms. Campbell about the east deck or centre post in November 2001, or at any other time.

 

[98] Mr. Hirji claims this was not the first mention of “structural” complaints. He says that the same time that he made a complaint about the west deck in July 2001, he also complained about the condition of a centre post or beam in his unit. As noted above, I conclude that Mr. Hirji never made the verbal complaint to Ms. Campbell that he claims.


[142] k. Mr. Hirji did not make any complaints about structural issues prior to January 2007. At that time, his only complaint was cracking around or above a centre post in his living room.

179.     The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  142(b), 98 and 142(k) to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 142(b), 98, and 142(k) and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

180.      Evidence established at the trial confirms that during 2002- 2008 Hirjis’ complaint several times to the defendants in writing to carry out the required repairs on “East deck” as confirmed by the trial exhibits 9, 10, 11, 12. The evidence confirms the defendants discriminated against the Hirjis’ from 1991 to 2008 and breached their duty of care owed to the Hirjis’.

 

181.      In order for the defendants to succeed the Hirjis’ claims of discrimination, the defendants have to negate the Hirjis’ claim and demonstrate to the court with convincing documented evidence that the Hirjis’ were not the only one in the complex and that there was at least one other owner in the complex who’s decks were not remediated from 1991 to 2008. No such evidence was submitted by the defendants at the trial for the trial judge to make an informed decision that the defendants did not discriminate against the Hirjis’ from 1991 to 2008.

 

182.      The following finding of facts at paragraph 72 and 73 in Reasons for Judgment by the trial judge’s own findings confirms the defendants refused to carry out their duty of care owed to the Hirjis’ from 1991 to 2008. The trial judge’s findings established conclusively that the defendants have breached their statutory duty owed to the Hirjis’ from 1991 to 2008 and made no reasonable efforts to carry out their statutory duty on east deck from 1991 to 2008.

     49

 

183.      The trial judge’s own findings established beyond a reasonable doubt that the trial judge has willfully fabricated the material facts in entire Reasons for Judgment and has unlawfully denied justice to the Hirjis’ either on trial judge’s own accord or on the instructions of the senior official of the “Administration of Justice” to deprive the Hirjis’ of justice and their legitimate claim for damages to protect the interest of the defendants Insurers.

 

184.      The trial evidence confirms the trial judge suppresses the vital and material evidence in Reasons for Judgment that the defendants breached the Strata Plan VR-44 bylaws s. 5(1), (2) and unreasonably refused to grant the conduct of the repairs to the Hirjis’ on strata’s own terms and conditions granted to other owners of VR-44 that would have ended this litigation in September 2007.

 

185.      The trial judge in Reasons for Judgment at paragraph 72, 73 confirms the following;


[72] Ms. Campbell testified that she had no recollection of that conversation. She also testified that she would never have agreed to the east deck being replaced, or even repaired, without receiving express instructions from the defendant, and she denied she received those instructions. There was no other evidence indicating the strata council gave that instruction. As noted above, I found Ms. Campbell to be a credible and reliable witness and I accept her testimony in preference to Mr. Hirji’s.

​ 

[73] I find that Mr. Hirji was not promised the east deck would be repaired or replaced. I also find it more likely than not that Mr. Hirji did not make a verbal complaint about the condition of the east deck to Ms. Campbell at any time.


The evidence confirms the trial judge systematically suppresses the evidence at Para. 72 and 73 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

COMMON SENSE AND LOGICAL ANALYSIS AND REASONING.

186.      Hirjis submits that if the trial judge’s findings in paragraphs 72 and 73 based on the testimony of the witness Ms. Lyn Campbell whom the trial judge throughout the reasons for judgment has described as credible and reliable witness despite the fact that the evidence confirms that the witness has proved to be dishonest and has concocted the earlier evidence that did not exist at VCS is to be relied on and believed by the trial judge then the trial judge by her own findings confirms and establishes the fact that the defendants refused/failed to carry the recommendations of their own engineers CSA in 1991 and have blatantly refused to carry out their legal obligations imposed on them by the Strata Property Act s. 72 and the Province of British Columbia’s established legal requirements for remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater from 1991 to 2008.

 

187.      On the other hand if the prime written evidence of the defendants own legal counsel Mr. Bleay in Trial Exhibit 17 is to be believed then the evidence confirms that the defendants failed to approve the required repairs on a 30 year old deck and only approved partial repairs on the east deck that should have been replaced by the defendants in 1994.

                                                                                     50

 

188.      The evidence confirms that in either of the above scenarios the defendants’ statutory breach is established by the Hirjis evidence. The defendants had no viable defense and in essence and were advised by the chambers judge Honourable Justice Mr. Silverman in chambers Hearings on October 24, 2008 as well as by their own legal counsel Mr. Bleay to settle this litigation amicably as soon as possible.

 

CHAMBERS HEARINGS ON OCTOBER 24, 2008 BEFORE HONOURABLE MR. JUSTICE SILVERMAN.

 

189.      At the trial the trial judge was fully aware of the following findings and the views expressed by well experienced and well respected chambers Judge the Honorable Mr. Justice Silverman indicating to the defense counsel Mr. Bleay the statutory breach of the defendants and the passage of time and the possible outcome of this litigation. The chambers judge clearly indicated to Mr. Bleay to put pressure on his clients to carry out their duty and settle this litigation amicably as soon as possible.

​ 

190.      The Honorable Mr. Justice Silverman in the Chambers Hearing on October 24, 2008[69] expressed his views on passage of time and the possible outcome of this litigation in no uncertain terms to the defendants and their legal counsel Mr. Bleay. Mr. Justice Silverman confirmed the following on pages 36, 37, 42 and 43;

 

36

Discussion


39 THE COURT: I understand that, but it's their
40 responsibility to ensure they're done. Assuming

41 -- when I see a balcony involved, as you know
42 probably better than I, you know, that's pretty

43 classic leaky condo stuff.

44 MR. BLEAY: An envelope is part of the exterior, which
45 is the strata corporation's responsibility to

46 repair and maintain.

47 THE COURT: Is he the only one in this position?


37

Discussion


1 MR. BLEAY: He is the only one that is in this
2 particular position.

____________________

[69] See chambers hearing transcript of October 24, 2008 pages 36, 37, 42 and 43.

     51

 

42

Discussion


10 My concern at this point in time isn't

11 with their motives. It's simply with the passage
12 of time, which is really out of Mr. Hirji's

13 control. It's completely in their control.

14 If they were to move quickly and come up with
15 a conclusion that none of it's their

16 responsibility, okay, the passage of time issue is
17 then dealt with, then we move on to the next

18 issue.

19 But if it's, gee, give us another six months,
20 and, yeah, it looks like after six months it

21 really is still our responsibility, that's
22 unacceptable to me. I, of course, don't know what
23 the evidence would produce. What I do know is too
24 much time has passed and I'm trying to put
25 pressure on your clients simply to move to get the
26 information so that decisions can be made and a
27 settlement arrived at, if there is one to be 28 arrived at.


37 THE COURT: And let's face it, again I suspect that
38 you've had a great deal more involvement in these
39 kinds of issues than I have, but it seems to me
40 likely, otherwise I wouldn't be saying this, that
41 the strata council is going to end up conceding
42 responsibility not necessarily wrongdoing in the
43 sense of being a tort failure, but responsibility
44 for repairing and perhaps even paying for some
45 past matters for at least a portion of what
46 continues to be the problem. That just seems to
47 me to be the likely result based on what


43
Discussion

1 admittedly is limited evidence that I've more
2 heard about than actually looked at.
3 MR. BLEAY: Right.
4 THE COURT: If I thought otherwise, I wouldn't be saying
5 this. While I do have the sense that Mr. Hirji is
6 clearly emotionally involved, one can't blame him
7 for that, I don't have the sense that he's sort of
8 off the wall, unreasonable at all.

     52

 

191.      The following evidence further confirms the trial judge systematically suppressed all material facts that proved the Hirjis’ case and willfully made up facts in Reasons for Judgment and denied the justice to the Hirjis’.

 

192.      The evidence confirms the trial judge willfully committed “Fraud upon the court” and “Fraud upon the Hirjis”. The trial judge abused the judicial independent and judicial privileges for propose other than the good of public and defrauded the Hirjis’ out of their legitimate claim for damages particularly after the Hirjis’ have fulfilled their burden of proof and have proved their case and the defendants’ negligence.

TRIAL EXHIBIT 2 HIRJI'S LETTER TO VCS DATED AUGUST 21, 2001

 

193.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 2[70] that contains notes made by Ashraf Lalani who attended the said Strata Meeting of August 21, 2001. A copy of these notes was delivered by hand by the Hirji and was provided to the defendants soon after that meeting before VR-44 commenced the repairs on east and west decks in 2001. Mr. Hirji informed everyone in that council meeting on August 21, 2001 including strata manager Ms. Campbell who prepared the strata minutes of August 21, 2001 and Mr. Peter brown who were present in the meeting. Mr. Hirji informed the council amongst other things the following:


a) “I had my wife call for last 15 months for someone to take care of these water leaks and they have been completely ignored; and


b) “as a result of that the center beam is rotted and the deck is about to collapse as one of your member has seen for himself”


c) “The wood is completely rotten underneath and all it needs is a little bit of snow to accumulate on the deck for it to collapse”

d) Mr. Hirji drew a diagram of center post and the support beam and pointed out the potential structural problems which are components of the structure known as “Beam B1" in this litigation”.


TRIAL EXHIBIT 3 STRATA COUNCIL MINUTES AUGUST 21, 2001 PREPARED BY MS. LYN CAMPBELL.

 

194.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 3[71] the minutes of the strata of August 21, 2001 states the following under the Heading Guest Presentation”

“Mr. Hirji and his daughter were present to discuss the concerns with the garden and condition of the deck and leaks that are occurring into their unit”

____________________

[70] See [Binder 3 page 68 to 71]Trial Exhibit 2 notes made by Ashraf Lalani of Strata Meeting of August 21, 2001

[71] See [Binder 2 page 87 to 92] Trial Exhibit 3 Strata monthly minutes dated August 21, 2001

     53

195.      The evidence in trial Exhibit 2 and trial Exhibit 3 confirms the trial judge systematically suppressed the prime facts and evidence with falsehood and unlawfully denied justice to the Hirjis’.

 

196.      The evidence established by the Hirjis at the trial in trial exhibit 2 dated August 21, 2001 confirms the following:

 

a) “I had my wife call for last 15 months for someone to take care of these water leaks and they have been completely ignored; (15 months from August 2001 would make it from May 2000 to August 2001)

 

197.      The Evidence in the trial judge’s Reasons for Judgment at paragraphs 62, 63, 64, 67, and 142a speaks for itself and establishes the falsehood and the integrity of the trial judge and the credibility of the defense witnesses that the trial judge throughout the Reasons for Judgment has described as credible and reliable witnesses.

198.      The trial evidence confirms the trial judge ignored the rule law and rule of evidence and disregarded and the Hirjis’ prime evidence in trial exhibit 2 and 3 that proves the negligence of the defendants. Trial judge violated Hirjis’ fundamental rights to a fair trial and equal benefit of the law.

 

199.      The evidence confirms the trial judge systematically suppressed the facts and made up the facts in Reasons for Judgment which the trial judge knew to be false. The evidence confirms the trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.

200.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  62, 63, 64, 67, and 142(A) to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.


[62] This issue does not arise because I find there is no credible or reliable evidence that the plaintiffs made any complaints about water leaks before February 2001.

     54

 

[63] Apart from my concerns about Mr. Hirji’s credibility, there is no reference in any document entered into evidence to a complaint by the plaintiffs about water ingress prior to 2001. Mr. Hirji explained the lack of documents to support his testimony of water leaks prior to 2001 by saying he was being patient, waiting his turn and not being “one to complain”. All of the evidence points to the opposite being true; I find Mr. Hirji was easily aggrieved and quick to pursue his complaints. In my view, it is inconceivable that Mr. Hirji simply accepted the lack of action by the defendant prior to 2001. Because of this, I conclude it is highly unlikely Mr. Hirji did complain about water leaks prior to 2001.

​ 

[64] But I also find there is reliable and credible evidence that supports the defendant’s position that the plaintiffs made no complaints about water ingress prior to 2001. Lyn Campbell and two former council members who served between 1998 and 2001 (Diane Wykes and Peter Brown) testified that they have no memory of any complaint about water ingress made by the plaintiffs prior to 2001.


[67] I conclude the plaintiffs did not complain about water ingress before 2001.


[142] Based on the evidence discussed above and all the evidence presented at trial, I make the following findings:

 

a. The plaintiffs did not complain about water ingress at their unit prior to June 2001.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 62,63, 64, 67 and 142(a) and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

201.      The evidence established by the Hirjis' at the trial confirms the witnesses Ms. Campbell and Mr. Alexandru fabricated testimonies about the procedures for handling complaints at VCS that never existed at VCS. The trial judge was made fully aware of the fabricated testimonies of the witnesses in EXHIBIT ‘I" (49 pages) attached to Affidavit# 12 of Mohd Ali Hirji filed on February 18, 2016[72] The evidence confirms the trial judge willfully refused to correct the facts in the reasons for judgment at paragraph 65 before the order was sealed.

 

202.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  65 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.

[65] Furthermore, I am satisfied that complaints about water ingress would not have been ignored. Ms. Campbell and Mr. Alexandru testified about the procedures for handling complaints at VCS over the relevant time period. Both testified that their office had a strict policy of date stamping documents relating to any complaints received from owners. Those witnesses also testified that an extremely high priority was given to water ingress complaints; both were clear and firm in their testimony that it was “impossible” that any complaint about water ingress would have been ignored or not acted upon. I find these witnesses were credible and reliable and I accept their testimony on these points.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 65 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

____________________

[72] See [binder 3 page 39] Notice of Motion to judge or Registrar Mr. Hirji’s Affidavit # 12 filed on Feb 18, 2016.

     55

 

203.      The evidence established by the Hirjis at the trial in trial exhibit 3 the strata minutes dated August 21, 2001 confirms the following:


“Mr. Hirji and his daughter were present to discuss the concerns with the garden and condition of the deck and leaks that are occurring into their unit”.

 

204.      The trial judge willfully turned a blind eye to the testimony of the strata manager Mr. George Alexandru who confirmed in his testimony that he presented all the Hirjis complaints to the Strata Council. The evidence confirms the strata council neglected their duty of care and failed to address the Hirjis complaints in any strata meetings or entered the Hirjis complaints in any strata minutes.

 

205       The trial judge willfully suppressed the Hirjis’ prime evidence in Mr. Alexandru's testimony that proves the negligence of the defendants and made up the facts in reasons for judgment at paragraph 66 and violated Hirjis’ fundamental rights to a fair trial and equal benefit of the law.

​ 

206.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  66 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.

 

[66] Additionally, no strata minutes entered into evidence mentions a complaint being made by the plaintiffs prior to 2001 about water leaks. Based on the testimony of Mr. Alexandru, Ms. Campbell and the four former council members, and the consistency of their testimony with the strata minutes that were entered into evidence, I am satisfied that the minutes accurately recorded any complaints received and considered by the defendant.

The evidence confirms the trial judge systematically suppresses the evidence at Para. 66 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

207.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 2 that contains notes made by Ashraf Lalani who attended the said Strata Meeting of August 21, 2001. A copy of these notes was delivered by hand by Mr. Hirji and was provided to the defendants soon after that meeting before VR-44 commenced the repairs on east and west decks in 2001. Mr. Hirji informed everyone in that council meeting on August 21, 2001 including strata manager Ms. Campbell who prepared the strata minutes of August 21, 2001 and Mr. Peter brown council member who were present in the meeting. Mr. Hirji informed the council amongst other things the following:


a) “I had my wife call for last 15 months for someone to take care of these water leaks and they have been completely ignored; and


b) “as a result of that the center beam is rotted and the deck is about to collapse as one of your member has seen for himself”


c) “The wood is completely rotten underneath and all it needs is a little bit of snow to accumulate on the deck for it to collapse”

d) Mr. Hirji drew a diagram of center post and the support beam and pointed out the potential structural problems which are components of the structure known as “Beam B1" in this litigation”.

     56

 

208.      The trial evidence confirms the trial judge willfully suppressed the Hirjis’ prime evidence that proves the negligence of the defendants and made up the facts in reasons for judgment at paragraph 98 and 99. The trial judge violated Hirjis’ fundamental rights to a fair trial and equal benefit of the law. The evidence confirms the trial judge acted in in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.

209.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  98, and 99 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.


[98] Mr. Hirji claims this was not the first mention of “structural” complaints. He says that the same time that he made a complaint about the west deck in July 2001, he also complained about the condition of a centre post or beam in his unit. As noted above, I conclude that Mr. Hirji never made the verbal complaint to Ms. Campbell that he claims.


[99] Based on my assessment of all the evidence on this point, I find Mr. Hirji made no complaints about “structural” issues prior to 2007.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 98, and 99 and violated Hirjis fundamental rights  to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).


TRIAL EXHIBIT 9 HIRJIS' LETTER TO VCS DATED APRIL 14, 2003.

 

210.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 9[73] The said Exhibit 9 was admitted as evidence with the consent of the defense who confirmed that the content thereof had been communicated to the defendants as stated on the document. Hirjis’ wrote to VR-44 the following amongst other things on April 14, 2003:


1. “our balcony repairs was approved about 2 years a go”.
2. “We have waited very patiently nothing has been done”.
3. “The balcony at the front by the bed room is extremely rotten”.
4. “The deck is rotted too”

 

211.      Evidence at the trial indicates that: JCB management quote of August 12, 2001 entered into evidence as trial Exhibit 8 states under the heading Upper Front Deck “East Deck” “Provide new roof membrane and associated flashings to remediate rotted deck caused by the water leaks”.

____________________

[73] See [Binder 2 page 48 ] Trial Exhibit 9 April 14, 2003- complaint of uncompleted repairs pending since 2001.

     57

 

212.      The Evidence at the trial established by the Hirjis' confirms the defendants refused to authorize the proposed work and instead authorized only some of it. Mr. John Boatman in his pleadings confirms the defendants refused to authorize the required repairs to remediate the east deck. The trial judge in reasons for judgement confirmed the defendants refused to approve the required repairs on east deck that should have been replaced in 1994. The trial judge at paragraph 69 in reasons for judgement confirms the following;

[69]        The quotation was $14,749 plus GST. That quotation was not an authorization for work to be done, but rather an estimate of what work was recommended and its cost. The defendant determined that some of the quotation items were not its responsibility to repair, but it approved all others. The repairs done to the plaintiffs’ unit cost $12,233. The plaintiffs admitted that the repairs relating to that complaint were completed by the end of November 2001.

213.      The following Trial testimony of the Strata manager Mr. George Alexandru on page 2 and 3[74]  confirms the defendants neglected and breached the standard of care and failed to address the Hirjis’ complaint in the strata meetings or recorded the complaint in any of the strata minutes or responded to the Hirjis’ complaint. The evidence confirms the defendants failed to take any reasonable actions and failed to carry out their duty of care and their legal obligation owed to the Hirjis’. At the trial the Strata manager Mr. George Alexandru testified and confirmed the following ;

 

2

George Alexandru (for Defendants)
Cross-exam by Mr. Hirji, continuing

 

42 Q Okay. Do you recall tab 9, that we had just gone
43 through, and I'll point out again.

44 THE CLERK: Exhibit 9?

45 MR. HIRJI: Exhibit 9. Yes, please.


3

George Alexandru (for Defendants)
Cross-exam by Mr. Hirji, continuing


32 Q Okay. The question is, do you recall this --
33 receiving this letter?

34 A Yes, sir.

35 Q Okay. Did you take any action?
36 A I presented it to council.

37 Q Okay. Did you follow up with the council?
38 A Yes I did, obviously. Yeah.

39 Q And what was the result of that phone call?
40 A I do not recall, sir.

____________________

[74] See Trial transcript of the defense witness Mr. George Alexandru on page 2 and 3.

     58

 

41 Q Was it your responsibility to -- to follow up, you
42 know, on the letters, you know, if council has

43 missed it, you know, or something like that?

44 A It is my duty to present to council the letters for

45 their own -- it is council's responsibility to

46 follow up.

 

214.      The Evidence at the trial established and confirms the defendants failed to do any of the following;


1. Failed to act reasonably and respond to the Hirji’s complaint;

2. Failed to address the Hirji’s complaint in strata meeting;

3. Failed to record the Hirji’s complaint in strata minutes;

4. Failed to give any specific instructions to strata manager to investigate rotted condition of the deck that should have been replace in 1994;
5. Failed to instruct strata manager to investigate structural issues that were brought to the attention of the defendants in strata meeting by the Strata manager.

 

215.      The trial judge was aware and knew from Ninth Further Amended Notice of Civil Claim Amended pursuant to Order of Madam Justice Sharma on 24th April, 2015 during the trial in paragraph 19.9 that states the following;

​ 

a) 19.9) by the year 1998, building envelope failures in British Columbia's coastal climatic zone were widespread and commonly known as the "leaky condo crisis." By the year 2000, this crisis resulted in the Province and City prescribing construction standards and practices for the remediation of building envelope systems as described in paragraphs below These standards and practices included requirements that:


b) remediation of envelope systems and repair of damage caused by the failure of the Envelope systems must be under the supervision and certification of a professional architect or engineer with demonstrated competence and skills in the art and science of building envelope remediation,


c) remediation of envelope systems and repair of damage caused by the failure of the envelope systems must be arranged for, managed and carried out only by contractors who were licensed building envelope renovators with demonstrated competence and skills in the art and science of building envelope remediation,


d) any new construction of envelope systems, or remediation of existing envelope systems must be to a "rain screen" design, and, e) provision of warranties for new or remediation of envelope systems must be backed by financially reputable and reliable warranty insurance.

THE PROVINCE OF B.C LEGAL REQUIREMENTS FOR REMEDIATION ENVELOPS. 

     59

 

216.      The Province of British Columbia also established legal requirements for, among other things, remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater. The Province of British Columbia’s legal requirements for remediation of building envelope failures are prescribed in the Homeowner Protection Act, S.B.C. 1998, c. 31 (the “HPA”) and the Building Envelope Renovation Regulation, B.C. Reg. 240/2000 as amended (B.C. Reg. 240/2000).

 

217.      The evidence confirms the defendants refused and neglected to remediate the defective building envelope from 1991 to 2008 and the damage to the interior to Suite 1084 in compliance with the VBBL and B.C. Reg. 240/2000.

 

218.      The trial judge in the Reasons for Judgment at paragraph 80, 81, and 82 confirms the trial judge ignored and or refused to follow the law and the legal requirements of the Province of British Columbia and failed to apply the applicable law.

 

219.      The trial judge suppressed the real issue of the failure of the defendants’ to respond to the Hirjis’ complaints and investigate the conditions of the deck. The evidence confirms the defense witness Mr. Alexandru put all of the Hirjis’ complaint before the council members in the council meeting. The evidence confirms that the council repeatedly neglected their duty of care owed to the Hirjis’ and failed to respond to any of the Hirjis’ complaint.

​​

220.      Trial judge’s reasoning as a trier of the facts in Para. 80, 81, and 82 defies the logic and common sense. The trial judge confirms the deck is “extremely rotten”. At this point in time the deck has reached the age of 36 years against the life expectancy 20 years. The east deck could have easily collapsed completely and could have resulted in serious injuries or even a death of an owner or any other person standing underneath the deck. The trial judge ignored The Province of British Columbia established legal requirements for, among other things, remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater.

 

THE TRIAL JUDGE'S FAILURE TO APPLY THE APPLICABLE LAW.

 

221.      The trial judge in Reasons for Judgment at paragraph 80, 81, and 82 failed/refused to apply the applicable law and the legal requirements established by the Province of British Columbia remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater. The trial judge confirms the following;


[80] The form the plaintiffs completed is dated April 14, 2003. In relation to balcony repairs, Mr. Hirji wrote that repairs had been approved for his balcony about two years ago (which would have been 2001), but that nothing had been done. He also wrote on the form that both decks are “extremely rotten”. No mention is made on that form of any instances of water ingress of the plaintiffs’ unit.

    60

 

[81] The second document Mr. Hirji relies upon is his hand-written letter dated June 10, 2004 addressed to VCS. In that letter Mr. Hirji complains again that he believes he had been promised over two years ago that both (not just the east deck) of their upper decks would be replaced (not just repaired), and he says the “partial” repair work done in 2001 needed to be inspected because there were cracks in the walls. He goes on to mention other complaints about a painted door, people not cleaning up after their dogs, cars backing up into his lawn, and landscaping deficiencies. No mention is made in that document of any kind of water ingress of the plaintiffs’ unit.


[82] The third document is dated June 12, 2004, and titled “Balcony Remediation Questionnaire”. It is a form that was sent out by Touwslager Engineering to provide it with information upon which it could give initial advice about deck repairs. The form has a series of questions about the decks. Again, no mention is made on the form completed by the plaintiffs of any kind of water ingress of their unit.

222.      The trial evidence confirms the trial judge systematically made up the facts and refused/failed to apply the applicable law and the legal requirements of the Province of British Columbia in the Reasons for Judgment. The evidence confirms the trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.

 

223.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  6, 147, and 157 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.


[6] Far from being a victim, I find that the evidence shows that Mr. Hirji has threatened, harassed, and taken any action he thought necessary to get what he wanted, with little regard for the impact he has had on reasonable people, most especially the 64 other owners in the complex. Rather than being unfair, I find that the defendant responded promptly, fairly, and diligently to all of Mr. Hirji’s complaints.


[147] The plaintiffs have failed to prove that the defendant did not meet the applicable standard of care. I find the evidence demonstrates that the defendant responded promptly, diligently, and fairly to Mr. Hirji’s every complaint. I make this conclusion on a bare assessment of what happened with Mr. Hirji’s unit.


[157] Taking everything into account, I conclude the plaintiffs have failed to prove the defendant was negligent. I find the defendant met the standard of care with regard to all of the plaintiffs’ complaints.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 6, 147 and 157 and violated Hirjis fundamental rights  to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

    61

 

TRIAL EXHIBIT 10 HIRJIS' LETTER TO VCS DATED JUNE 10, 2004

224.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 10[75] The said Exhibit 10 was admitted as evidence with the consent of the defense who confirmed that the content thereof had been communicated to the defendants as stated on the document.


The Hirji wrote to VR-44 the following amongst other things on June 10, 2004:


1. “This is to let you know that we are still waiting for our upper balcony/deck to be replaced”;

2. “This work was approved and supposed to be carried out over 2 years ago”.
3. “All the details regarding this job should be in your files”;
4. “The partial work that was completed also needs to be inspected since cracks are already evident in the walls”.

225.      Evidence at the trial indicates that: JCB management quote of August 12, 2001 entered into evidence as trial Exhibit 8 states under the heading Upper Front Deck “East Deck” “Provide new roof membrane and associated flashings to remediated rotted deck caused by the water leaks”.

 

226.      The Evidence at the trial established and confirms the defendants acknowledged the Hirjis’ complaint in strata minutes of September 16, 2004 but failed to do any of the following;


a) Failed to act reasonably and respond to the Hirji’s complaint;

b) Failed to give any specific instructions to strata manager/engineer to investigate rotted condition of the deck that should have been replace in 1994;

c) Failed to give any specific instructions to strata manager/engineer to investigate structural issues that were brought to the attention of the defendants.

 

227.      The trial judge in Reasons for Judgment refused/failed to apply the Province of British Columbia legal requirements for, among other things, remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater. The Province of British Columbia’s legal requirements for remediation of building envelope failures are prescribed in the Homeowner Protection Act, S.B.C. 1998, c. 31.

 

228.      The trial evidence confirms the trial judge systematically made up the facts and refused/failed to apply the applicable law and the legal requirements of the Province of British Columbia in the Reasons for Judgment. The evidence confirms the trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court. 

____________________

[75] See [Binder 2 page 49 to 50] Trial Exhibit 10 June 10, 2004- complaint of uncompleted approved repairs pending since 2001.

     62

 

229.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  6, 147, and 157 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.


[6] Far from being a victim, I find that the evidence shows that Mr. Hirji has threatened, harassed, and taken any action he thought necessary to get what he wanted, with little regard for the impact he has had on reasonable people, most especially the 64 other owners in the complex. Rather than being unfair, I find that the defendant responded promptly, fairly, and diligently to all of Mr. Hirji’s complaints.


[147] The plaintiffs have failed to prove that the defendant did not meet the applicable standard of care. I find the evidence demonstrates that the defendant responded promptly, diligently, and fairly to Mr. Hirji’s every complaint. I make this conclusion on a bare assessment of what happened with Mr. Hirji’s unit.

[157] Taking everything into account, I conclude the plaintiffs have failed to prove the defendant was negligent. I find the defendant met the standard of care with regard to all of the plaintiffs’ complaints.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 6, 147 and 157 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).


TRIAL EXHIBIT 11 HIRJIS' LETTER TO VCS DATED JUNE 15, 2004

 

230.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 11[76] The said Exhibit 11 was admitted as evidence with the consent of the defense who confirmed that the content thereof had been communicated to the defendants as stated on the document. Hirjis’ wrote to VR-44 the following amongst other things on June 15, 2004:


1. “Deck facing the Playground is extremely rotted”;

2. “The deck was never waterproofed”;

3. “Work was never completed”

4. “It would be appreciated if the engineer can visit our unit”.

 

231.      The Evidence at the trial established and confirms the defendants failed to do any of the following;

 

a) Failed to act reasonably and respond to the Hirji’s complaint;
b) Failed to address the Hirji’s complaint in strata meeting;
c) Failed to record the Hirji’s complaint in strata minutes;
d) Failed to give any specific instructions to strata manager to investigate rotted condition of the deck that should have been replace in 1994;

____________________

[76] See [Binder 2 page 51-52]Trial Exhibit 11 June 15, 2004- complaint of uncompleted repairs pending since 2001.

     63

 

232.      Evidence at the trial indicates that: JCB management quote of August 12, 2001 entered into evidence as trial Exhibit 8 states under the heading Upper Front Deck “East Deck” “Provide new roof membrane and associated flashings to remediated rotted deck caused by the water leaks”.

 

233.      The trial judge in Reasons for Judgment refused/failed to apply the Province of British Columbia legal requirements for, among other things, remediation of building envelope failures evidenced by leaks, rot, mould, unintended water ingress and penetration of rainwater. The Province of British Columbia’s legal requirements for remediation of building envelope failures are prescribed in the Homeowner Protection Act, S.B.C. 1998, c. 31.

234.      The trial evidence confirms the trial judge systematically made up the facts and refused/failed to apply the applicable law and the legal requirements of the Province of British Columbia in the Reasons for Judgment. The evidence confirms the trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.

235.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  6, 147, and 157 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.


[6] Far from being a victim, I find that the evidence shows that Mr. Hirji has threatened, harassed, and taken any action he thought necessary to get what he wanted, with little regard for the impact he has had on reasonable people, most especially the 64 other owners in the complex. Rather than being unfair, I find that the defendant responded promptly, fairly, and diligently to all of Mr. Hirji’s complaints.


[147] The plaintiffs have failed to prove that the defendant did not meet the applicable standard of care. I find the evidence demonstrates that the defendant responded promptly, diligently, and fairly to Mr. Hirji’s every complaint. I make this conclusion on a bare assessment of what happened with Mr. Hirji’s unit.

 

​[157] Taking everything into account, I conclude the plaintiffs have failed to prove the defendant was negligent. I find the defendant met the standard of care with regard to all of the plaintiffs’ complaints.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 6, 147 and 157 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

     64

 

TRIAL EXHIBIT 12 HIRJIS' LETTER TO VCS DATED OCTOBER 27, 2004

 

236.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 12[77] The evidence confirms Exhibit 12 was admitted as evidence with the consent of the defense who confirmed that the content thereof had been communicated to the defendants as stated on the document. The Hirji wrote to VR-44 the following amongst other things on October 27, 2004:

 

“I am unable to carry out the paint work and the renovations until these water leaks and balance of the approved work in 2001 is carried out”.

 

THE TRIAL TESTIMONY OF THE DEFENSE WITNESS MR. ALEXANDRU ON PAGE 17-18. 

237.      The evidence established in trial testimony of Mr. Alexandru’s confirms he presented all Hirjis complaints to the defendants.

 

238.      At the trial the Hirjis’ established their prima facie evidence in Mr. Alexandru's testimony Mr. Alexandru  confirmed the protocol relating to water ingress inside the unit and confirmed that he reported every complaint to VR-44 and he recommended to the strata council to investigate and mitigate the damage. The evidence confirms this complaint was neglected by the defendants same as all other complaints in Trial exhibit 9, 10, and 11 and was neither responded to, nor addressed in any strata meetings, nor entered into any strata minutes. Mr. Alexandru testified and confirms the following at the trial in his testimony on page 17 and 18[78];


Page 17 of the transcript.
George Alexandru (for Defendants)
Cross-exam by Mr. Hirji, continuing

____________________

[77] See [Binder 2 page 53] Trial Exhibit 12 October 27, 2004-complaint of water leaks and pending repairs since 2001 east deck.

[78] see Mr. Alexandru’s trial transcript on page 17 and 18.

     65

 

29 Q Okay. So if I called and said my deck, the balcony
30 living space is leaking, I would have to wait for
31 my turn to come? Is that correct? Is that what
32 you are saying?

33 A It depends on the gravity and severity of your
34 leak, sir. If it would have been a leak water
35 ingress inside the unit, I believe counsel would
36 have investigated that particular instance right
37 away.
38 Q But that's your understanding?
39 A That's what I know the protocol was.
40 Q Okay. And to the best of your knowledge, would
41 strata instruct you to inspect somebody if there
42 was a complaint? To investigate it?
43 A That is correct.

44 Q Okay. Now, Mr. Alexandru, you were aware of the
45 problems in Unit 1084 from 2003 to 2005, and

46 then 2007 to 2008; is that correct?

47 A I was aware. Yes, you can say I was aware. Yes.


Page 18 of the transcript.

George Alexandru (for Defendants)
Cross-exam by Mr. Hirji, continuing


1 Q Did you take any precaution, or did you take any
2 [indiscernible - accent] to send somebody along to
3 investigate what the problem was?

4 A As a strata manager, I'm not allowed to dispatch
5 unless council is backing me up.

6 Q Okay. Did you advise the council at any time, you
7 know, that, look, this guy's complaining all the

8 time. Why don't we send somebody along?

35 A Every time I have a complaint I submit in my
36 complaint in front of the council and I advise them
37 that certain actions be taken to mitigate the

38 damages.

     66

 

39 Q Okay. So basically if I understand you correctly,
40 you did advise the strata council when you

41 presented the letters and everything that we should
42 investigate that?

43 A Well, it's up to them. I -- as I said, my

44 recommendation was on the table. Yes, please,

45 investigate. Yes.

 

239.      The trial judge knew that the October 27, 2004 letter was the only letter amongst four letters that the trial judge pointed out in paragraph 70 of Reasons for Judgment that does contain a complaint about water leaks in 2004. Mr. Alexandru confirms in his testimony that he presented all the letters to the council and recommended to the council to investigate and mitigate the damages contrary to his earlier testimony that all complaints were date stamped by VCS.

 

240.      The trial judge’s Reasons for Judgment in the following paragraphs defy the logic and common sense. There was not a single evidence or document entered into evidence or presented to the trial judge by the defendants to confirm or demonstrate to the trial judge that VCS had a strict procedure for recording complaints by owners in writing and anything in writing was immediately date-stamped for the trial judge to make an informed decision.

 

241.      The trial evidence confirms that this evidence of VCS recording the owners complaints in writing was immediately date-stamped never existed at VSC. The evidence confirms this evidence was concocted by the defense counsel and the witnesses during the trial primarily to mislead the court and defeat the Hirjis case by fraudulent means in the judicial proceedings and willfully obstruct the course of justice in violations of criminal code s. 131 and s. 139. As described earlier.

 

242.      The evidence confirms the trial judge failed to use the basic logic and common sense that if such policy of date stamping the owners complaints ever existed at VCS than all the Hirjis’ and the defendants trial exhibits entered into evidence would be inadmissible and void and there would be no trail because none of the complaint letters submitted by either the Hirjis’ or the defendants as evidence has a date stamped on it, and the defense counsel would have vigorously objected to every complaint letter submitted by the Hirjis’ that did not have a date stamp by VCS before it was entered in to evidence by the trial judge.

​​

243.      The evidence confirms that these facts were brought to the attention of the trial judge and the trial judge was requested to correct the misstated facts in reasons for judgment on at least three occasions by Mr. Hirji before the trial judge’s order was sealed. The evidence confirms the trial judge willfully declined to correct the facts in reasons for the judgment and unreasonably refused to grant the Hirjis’ the hearing requested on January 28, 2016 and dismiss the defendants fabricated defense with prejudice.

    67

 

244.      The trial evidence confirms the trial judge willfully refused/failed to follow the rules of evidence and ignored the prime evidence and the supporting testimony of the defense witness Mr. George Alexandru above confirming that he presented all the complaints letters to the defendants.

 

245.      The evidence confirms the trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court. 

246.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  84, 85, 86, 87, 88 6, 142g, 147, and 157 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.

[84] I note that this letter only refers to “minor water leaks” from 2003 on, which is at odds with Mr. Hirji’s testimony about the nature and timing of the water leaks he experienced in this time period. In any event, I am not satisfied that this letter was received by VCS.


[85] Mr. Alexandru testified that VCS had a strict procedure for recording complaints by owners whether by phone or in writing. He said anything in writing was immediately date-stamped and phone messages would also have a date. This evidence about VCS’s standard practice for receiving and responding to owner complaints was completely consistent with Lyn Campbell’s testimony.


[86] There is no date-stamp on the letter and Mr. Alexandru had no recollection of receiving a written complaint from Mr. Hirji at that time. He had no recollection of speaking with Mr. Hirji several times about water leaks. He was firm in his testimony that it would not be the case that he would have spoken to an owner “several times” and not followed up on complaints. This accords with other evidence adduced at trial where a complaint was recorded and responded to promptly. In particular, unlike the June 10, 2004 letter, no responsive document from VCS was produced, and no strata minutes were produced that references this complaint.

​ 

[87] I find Mr. Alexandru’s evidence is credible and reliable and I prefer it to Mr. Hirji’s. I find Mr. Hirji’s October 27, 2004 letter was never received by VCS.


[88] In my view, there is no credible or reliable evidence that Mr. Hirji complained to the defendant about water leaks left unaddressed between 2002 and 2006.


[142] g. Mr. Hirji’s October 27, 2004 letter was not received by VCS.

     68

 

[6] Far from being a victim, I find that the evidence shows that Mr. Hirji has threatened, harassed, and taken any action he thought necessary to get what he wanted, with little regard for the impact he has had on reasonable people, most especially the 64 other owners in the complex. Rather than being unfair, I find that the defendant responded promptly, fairly, and diligently to all of Mr. Hirji’s complaints.

[147] The plaintiffs have failed to prove that the defendant did not meet the applicable standard of care. I find the evidence demonstrates that the defendant responded promptly, diligently, and fairly to Mr. Hirji’s every complaint. I make this conclusion on a bare assessment of what happened with Mr. Hirji’s unit.


[157] Taking everything into account, I conclude the plaintiffs have failed to prove the defendant was negligent. I find the defendant met the standard of care with regard to all of the plaintiffs’ complaints.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 84, 85, 86, 87, 88 6, 142g, 147, and 157 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

ANALYSIS OF THE NEGLIGENCE CLAIM BY THE TRIAL JUDGE

 

247.      The trial judge in Reasons for Judgment at paragraph 59 and 60 determined under the heading “IV. ANALYSIS OF THE NEGLIGENCE CLAIM” that in order for the Hirjis’ to succeed the Hirjis’ must prove the following;


[59] The plaintiffs’ complaints fall into two categories: complaints about water ingress and complaints about structural deficiencies. To be successful in their negligence claim, they have the initial evidentiary burden of proving that their complaints about water ingress and structural deficiencies were truthful and were reported to the defendant. These are factual issues.

[60] They also have the burden of proving on a balance of probabilities that the issues identified in their complaints were either not remedied or not adequately remedied according to the applicable standard of care. I turn first to the factual issues.

EVIDENCE OF SERIOUS DECAY ON “BEAM B1” CAUSED BY CONTINUED WATER LEAKS FROM 2000 TO 2006 ON WEST DECK DUE TO THE NEGLIGENCE OF THE DEFENDANTS.

     69

 

248.      The following evidence established by the Hirjis’ confirms the defendants neglected their duty of care from 1991 to 2008 on east deck and from 2002- 2006 on west deck. The evidence confirms that Hirjis’ fulfilled their burden of proof and have proved the defendants negligence and breach of the standard of care owed to the Hirjis’. The evidence confirms the Hirjis’ fulfilled their obligations to succeed in their claim for negligence as required in trial judge's reasons for judgment at paragraphs 59, and 60. The evidence established at the trial confirms the following:

 

​a) The evidence confirms the defendants allowed the Hirjis’ unit to deteriorate and forced the Hirjis’ and his family to live in substandard conditions from at least 2001 to 2009. The trial judge confirmed at paragraph 135 that repairs totaling $ 73,256 were required against the average cost of $10,000 to $15,000 other units in the complex.


b) The evidence established the fact in the defendants’ engineers’ reports of Mr. Sunderland and Mr. Touwslagers that confirms the water leaks existed in the west upper deck above the living room and as a result of those continued leaks the "serious decay had occurred on Beam B1" that is a component of the Structure of the building.


c) The evidence confirms the defendants neglected their duty of care and breached the standard of care owed to the Hirjis’ and failed to act reasonably to fulfill their duty of care after the failed remediation in 2001 and allowed the leaks to continue from at least 2001 to 2007 on west deck. The evidence confirms the defendants failed to take a SINGLE action to fulfill their legal obligation.


d) The evidence of severe decay on Beam B1 based on logic and common sense confirms that on balance of probabilities this severe decay on Beam B1 could only have occurred in this case due to the failures and the negligence of the defendants to respond to the Hirjis’ complaints and investigate and remediate the leaks in upper west deck in the Hirjis’ unit. The evidence confirms the defendants failed to follow the protocol and carry out their duty of care owed to the Hirjis’ from 2001 to 2007 and beyond.


e) The evidence of the defendants failures to take any steps to investigate and address the water leaks immediately as per protocol confirms the defendants neglected their duty of care and allowed the water leaks to continue from the upper west deck above the living room space from at least 2001 to 2007 that continuous water leaks penetrated onto the Beam B1 and resulted in serious decay to occur on Beam B1.

​ 

f) The evidence confirms on balance of probability and commonsense that the Hirjis’ must have complaint several times to the defendants in writing and over the emergency telephone line between 2002 and 2007 whenever it rained and water leaked into their living room.

 

g) The evidence confirms that the defense witnesses’ strata manager Ms. Lyn Campbell, Mr. George Alexandru knowingly misled the court with their false testimonies that they knew never existed at VCS and committed perjury either on their own accord or on the advice of their legal counsel Mr. Eged or his associates.

     70

 

249.      At the trial the Hirjis’ established their prima facie evidence and proved their burden of proof and the negligence of the defendants and fulfilled their obligations as determine by the trial judge in paragraphs 59, and 60 with cogent evidence in Trial Exhibits 2, 3, 9,10,11, and 12 entered into evidence and the corroborating evidence of the defendants’ engineers reports of Mr. Sunderland and Mr. Touwslager entered into evidence and Marked as Trial Exhibits, 106, 150, 69 and corroborating evidence and testimony of the defense witness the Strata Manager Mr. George Alexandru together with the transcripts of Chambers Hearing held before Honourable Mr. Justice Silverman that the trial judge confirmed and referred to in the Reasons for Judgment rendered on November 6, 2015 at paragraph 120 and 125. Following documents and evidence fulfills the plaintiffs’ legal obligations.

EVIDENCE OF DECAY ESTABLISHED BY THE HIRJIS' AT THE TRIAL WITH TRIAL EXHIBITS.


1.          The notes made by Ashraf Lalani who attended the said Strata Meeting of August 21, 2001.

                                                                                                                                 Trial Exhibit 2[79]
2.           Strata monthly minutes dated August 21, 2001. 

                                                                                                                                  Trial Exhibit 3[80]
3.           April 14, 2003- complaint of uncompleted approved repairs pending since 2001 

                                                                                                                                   Trial Exhibit 9[81]
4.           June 10, 2004- complaint of uncompleted approved repairs pending since 2001 

                                                                                                                                 Trial Exhibit 10[82]
5.           June 15, 2004- complaint of uncompleted approved repairs pending since 2001 

                                                                                                                                  Trial Exhibit 11[83]
6.           Mr. Sunderland’s report dated September 13, 2007. 

                                                                                                                                 Trial Exhibit 106[84]
7.           Mr. Sunderland’s report dated November 29, 2007.

                                                                                                                                 Trial Exhibit 150[85]
8.           Mr. Touwslagers report dated January 11, 2007. 

                                                                                                                                   Trial Exhibit 69[86]

9.           October 27, 2004-complaint of water leaks on west deck pending since 2001 east deck. 

                                                                                                                                    Trial Exhibit 12[87]

____________________

[79] See [Binder 2 page 44 to 47]Trial Exhibit 2 notes made by Ashraf Lalani of Strata Meeting of August 21, 2001

[80] See [Binder 2 page 87 to 92]Trial Exhibit 3 Strata monthly minutes dated August 21, 2001.

[81] See [Binder 2 page 48 ]Trial Exhibit 9 April 14, 2003- complaint of uncompleted repairs pending since 2001.

[82] See [Binder 2 page 49 to 50]Trial Exhibit 10 June 10, 2004- complaint of uncompleted repairs since 2001.

[83] See [Binder 2 page 51-52]Trial Exhibit 11 June 15, 2004- complaint of uncompleted repairs pending since 2001.

[84] See [Binder 2 page 110 to 112]Trial Exhibit 106 Mr. Sunderland’s report dated September 13, 2007.

[85] See [Binder 2 page 133 to 135]Trial Exhibit 150 Mr. Sunderland’s report dated November 29, 2007.

[86] See [Binder 2 page101-104] Trial Exhibit 69 Mr. Touwslager’s report and photos taken by Mr. Touwslager.

[87] See [Binder 2 page 53] Trial Exhibit 12 October 27, 2004-complaint of water leaks on west deck

    71

 

TRIAL EXHIBIT 2 HIRJIS' LETTER TO VCS DATED AUGUST 21, 2001.

 

250.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 2 that contains notes made by Ashraf Lalani who attended the said Strata Meeting of August 21, 2001. A copy of these notes was delivered by the Hirji and was provided to the defendants soon after that meeting before VR-44 commenced the repairs on east and west decks in 2001. Mr. Hirji informed everyone in that council meeting on August 21, 2001 including strata manager Ms. Campbell who prepared the Strata Minutes of August 21, 2001 and Council Member Mr. Peter brown who were present in the meeting of August 21, 2001 amongst other things the following:


a) “I had my wife call for last 15 months for someone to take care of these water leaks and they have been completely ignored; and

 

b) “as a result of that the center beam is rotted and the deck is about to collapse as one of your member has seen for himself”


c) “The wood is completely rotten underneath and all it needs is a little bit of snow to accumulate on the deck for it to collapse”


d) “Mr. Hirji drew a diagram of center post and the support beam and pointed out the potential structural problems which are components of the structure known as “Beam B1" in this litigation”.


TRIAL EXHIBIT 3 STRATA MINUTES OF AUGUST 21, 2001.

 

251.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 3 that confirms the following under the Heading Guest Presentation”

 

“Mr. Hirji and his daughter were present to discuss the concerns with the garden and condition of the deck and leaks that are occurring into their unit.

 

252.      The indisputable evidence confirms in Trial Exhibit 2 and Trial Exhibit 3 that the trial judge in Reasons for Judgment suppressed the prime evidence of the Hirjis’ that proves the negligence of the defendants and breached the standard of care by the defendants.

 

253.      The evidence confirms the trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court. 

     72

254.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  62, 63, 64, 66, 67, 6, 98, 99, 142(A), 6, 147, and 157 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.

[62] This issue does not arise because I find there is no credible or reliable evidence that the plaintiffs made any complaints about water leaks before February 2001.

 

[63] Apart from my concerns about Mr. Hirji’s credibility, there is no reference in any document entered into evidence to a complaint by the plaintiffs about water ingress prior to 2001. Mr. Hirji explained the lack of documents to support his testimony of water leaks prior to 2001 by saying he was being patient, waiting his turn and not being “one to complain”. All of the evidence points to the opposite being true; I find Mr. Hirji was easily aggrieved and quick to pursue his complaints. In my view, it is inconceivable that Mr. Hirji simply accepted the lack of action by the defendant prior to 2001. Because of this, I conclude it is highly unlikely Mr. Hirji did complain about water leaks prior to 2001.


[64] But I also find there is reliable and credible evidence that supports the defendant’s position that the plaintiffs made no complaints about water ingress prior to 2001. Lyn Campbell and two former council members who served between 1998 and 2001 (Diane Wykes and Peter Brown) testified that they have no memory of any complaint about water ingress made by the plaintiffs prior to 2001.


[65] Furthermore, I am satisfied that complaints about water ingress would not have been ignored. Ms. Campbell and Mr. Alexandru testified about the procedures for handling complaints at VCS over the relevant time period. Both testified that their office had a strict policy of date stamping documents relating to any complaints received from owners. Those witnesses also testified that an extremely high priority was given to water ingress complaints; both were clear and firm in their testimony that it was “impossible” that any complaint about water ingress would have been ignored or not acted upon. I find these witnesses were credible and reliable and I accept their testimony on these points.

​ 

[66] Additionally, no strata minutes entered into evidence mentions a complaint being made by the plaintiffs prior to 2001 about water leaks. Based on the testimony of Mr. Alexandru, Ms. Campbell and the four former council members, and the consistency of their testimony with the strata minutes that were entered into evidence, I am satisfied that the minutes accurately recorded any complaints received and considered by the defendant.


[67] I conclude the plaintiffs did not complain about water ingress before 2001.


[98] Mr. Hirji claims this was not the first mention of “structural” complaints. He says that the same time that he made a complaint about the west deck in July 2001, he also complained about the condition of a centre post or beam in his unit. As noted above, I conclude that Mr. Hirji never made the verbal complaint to Ms. Campbell that he claims.

     73

 

[99] Based on my assessment of all the evidence on this point, I find Mr. Hirji made no complaints about “structural” issues prior to 2007.


[142] Based on the evidence discussed above and all the evidence presented at trial, I make the following findings: a. The plaintiffs did not complain about water ingress at their unit prior to June 2001.


[6] Far from being a victim, I find that the evidence shows that Mr. Hirji has threatened, harassed, and taken any action he thought necessary to get what he wanted, with little regard for the impact he has had on reasonable people, most especially the 64 other owners in the complex. Rather than being unfair, I find that the defendant responded promptly, fairly, and diligently to all of Mr. Hirji’s complaints.


[147] The plaintiffs have failed to prove that the defendant did not meet the applicable standard of care. I find the evidence demonstrates that the defendant responded promptly, diligently, and fairly to Mr. Hirji’s every complaint. I make this conclusion on a bare assessment of what happened with Mr. Hirji’s unit.


[157] Taking everything into account, I conclude the plaintiffs have failed to prove the defendant was negligent. I find the defendant met the standard of care with regard to all of the plaintiffs’ complaints.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 62, 63, 64, 66, 67, 6, 98, 99, 142(A), 6, 147, and 157 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

TRIAL EXHIBIT 69 STRATA ENGINEERS REPORT DATED JANUARY 11, 2007.

 

​255.      At the trial the Hirjis’ established their prima facie evidence in Trial Exhibit 69[88] the defendants engineers report of Mr. Touwslagers dated February 16, 2007 entered into evidence that amongst other things confirms the following:


“Mr. Touwslager concluded from the flood test the leaks were due to “membrane below the flashing is not likely continuous”


TRIAL EXHIBIT 89 STRATA ENGINEERS REPORT DATED FEBRUARY 16, 2007.

 

256.      At the trial the Hirjis’ established their prima facie evidence in Trial Exhibit 89 the defendants engineers report of Mr. Touwslagers dated February 16, 2007 entered into evidence that amongst other things confirms the following:

____________________

[88] See Trial Exhibit 69 in [Application for leave to Appeal Binder 2 pages 101]

    74

 

Mr. Touwslager carried out flood test on the west deck and took the following photos entered into evidence;


a) At trial, the Appellant established their prima facie evidence in Trial Exhibit 89[89] 

photograph # 20 taken by the engineer Mr. Touwslager shows how quickly the water entered the living room within 5 minutes and resembled as if water tap was opened;

 

b) Photograph # 21 taken by the engineer Mr. Touwslager shows how quickly the water entered the basement within 5 minutes;


c) Photograph # 22 taken by the engineer Mr. Touwslager shows how quickly the water was dripping in the basement from the ceiling tiles within 5 minutes and resembled as if water tap was open.


d) Mr. Touwslager concluded from the flood test the leaks were due to "membrane below the flashing is not likely continuous"

 

257.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  88, 92, 6, 147, and 157 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.

[88] In my view, there is no credible or reliable evidence that Mr. Hirji complained to the defendant about water leaks left unaddressed between 2002 and 2006.


[92] On the basis of all of the evidence, I find the plaintiffs have failed to prove on a balance of probabilities that they experienced water leaks as they described between 2002 and 2006. They have also failed to prove that they complained about any leaks to either VCS or the strata council, and that those complaints were ignored or minimized.


[6] Far from being a victim, I find that the evidence shows that Mr. Hirji has threatened, harassed, and taken any action he thought necessary to get what he wanted, with little regard for the impact he has had on reasonable people, most especially the 64 other owners in the complex. Rather than being unfair, I find that the defendant responded promptly, fairly, and diligently to all of Mr. Hirji’s complaints.

____________________

[89] See Trial Exhibit 89 in [Application for leave to Appeal Binder 2 pages 102 to 104]

     75

 

[147] The plaintiffs have failed to prove that the defendant did not meet the applicable standard of care. I find the evidence demonstrates that the defendant responded promptly, diligently, and fairly to Mr. Hirji’s every complaint. I make this conclusion on a bare assessment of what happened with Mr. Hirji’s unit.


[157] Taking everything into account, I conclude the plaintiffs have failed to prove the defendant was negligent. I find the defendant met the standard of care with regard to all of the plaintiffs’ complaints.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 88, 92, 6, 147, and 157 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).


TRIAL EXHIBIT 106 STRATA'S ENGINEER MR. SUNDERLAND'S REPORT DATED SEPTEMBER 13, 2007.

 

258.      At the trial, the Hirjis’ established in evidence Mr. Sunderland's report of September 13, 2007 entered into evidence as Trial Exhibit 106[90] that states the following amongst other things:


a) ".1 Repair the damage and deficiencies caused by repairs carried out in 2001 as soon as possible to avoid further damage"


b) ".2 Expose and examine the west end of beam B1 for damage due to the jacking in 2001 and water damage due to the leaks in the upper deck".

TRIAL EXHIBIT 150 STRATA'S ENGINEER MR. SUNDERLAND'S REPORT DATED NOVEMBER 29, 2007.

 

259.      At the trial, the Hirjis’ established in evidence Mr. Sunderland's report of November 29, 2007 entered into evidence as Trial Exhibit 150[91] that states the following amongst other things:


a) "l. Brown stains on the wall below the beam confirmed that in the past water had leaked through the beam pocket, suggesting that the likelihood of decay".


b) "2. Exposure of the end of the beam indicated clearly that serious decay had occurred to the center lamination, with some decay of the two side members. The beam consists of three 2xl0's laminated vertically".

____________________

[90] see [Binder 2 page 110 to 112]Trial Exhibit 106 Mr. Sunderland’s report dated September 13, 2007.

[91] See [Binder 2 page 133 to 135]Trial Exhibit 150 Mr. Sunderland’s report dated November 29, 2007.

    76

 

TRIAL EXHIBIT 126 STRATA PLAN VR-44 BY-LAWS s. 8

260.       At the trial Hirjis’ established their evidence in Trial exhibit 126 [92] that VR-44 owed a duty of care to Hirjis’. VR-44 admitted that they owed a duty of care to Hirjis’ and was not an issue at the trial. The Strata Plan VR-44 bylaws imposes following duty on VR-44 and provides:


"Strata Bylaws s. 8 (II), (A) impose the duties on VR-44 to repair and maintain “The structure of a building”

 

261.       The trial judge in Reasons for the judgment at paragraph 142 l. and 142 r. suppressed the facts and failed/refused to apply the applicable law in the Strata Plan VR-44 s. 8 in Trial exhibit 126.

 

262.       The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  142(l), and 142(r) to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.

[142] l. Based on the opinion of Mr. Sunderland, it is more likely than not that this cracking was caused by seasonal differences in atmospheric moisture and was unrelated to water ingress, or the 2001 repairs.


[142] r. I find that the main structural complaints of the plaintiffs (problems with the centre beam in the living room, and the alleged instability of beam B-1) had no relationship to water ingress issues. Those structural issues were internal to the plaintiffs’ unit and therefore not the responsibility of the defendant because they were unrelated to common property.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 142(l), and 142(r) and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

 

TRIAL EXHIBIT 12 HIRJIS'  LETTER TO VCS DATED OCTOBER 27, 2004.

 

263.      At the trial Hirjis’ established their prima facie evidence in Trial Exhibit 12. The said Exhibit 12 was admitted as evidence with the consent of the defense who confirmed that the content thereof had been communicated to the defendants as stated on the document. Mr. George Alexandru the Strata Manager testified the following regarding numerous complaints made by the Hirjis’ none of the complaints are date stamped by VCS relating to the water ingress or the structural issues or uncompleted repairs.

 

264.      Mr. Alexandru’s testimony confirms the policy of date stamping the owners complaints never existed at VCS. Mr. Alexandru confirmed that he reported Hirjis’ every complaint to the strata council. Evidence confirms none of the complaints presented to the council by Mr. Alexandru are date stamped by VCS. Mr. Alexandru confirmed that he recommended to the strata council to investigate the damage caused by water ingress and mitigate the damage during 2003 and 2005.

_________________

[92]Trial exhibit 126

     77

 

THE TRIAL TESTIMONY OF THE DEFENSE WITNESS MR. ALEXANDRU ON PAGE 17-18. 

 

265       On May 4, 2015 Mr. Alexandru confirmed and testified the following[93] At the trial on page 17 and 18;


Page 17 of the transcript.

George Alexandru (for Defendants)

Cross-exam by Mr. Hirji, continuing


29 Q Okay. So if I called and said my deck, the balcony

30 living space is leaking, I would have to wait for

31 my turn to come? Is that correct? Is that what

32 you are saying?

33 A It depends on the gravity and severity of your

34 leak, sir. If it would have been a leak water

35 ingress inside the unit, I believe counsel would

36 have investigated that particular instance right

37 away.

38 Q But that's your understanding?

39 A That's what I know the protocol was.

40 Q Okay. And to the best of your knowledge, would

41 strata instruct you to inspect somebody if there

42 was a complaint? To investigate it?

43 A That is correct.
44 Q Okay. Now, Mr. Alexandru, you were aware of the

45 problems in Unit 1084 from 2003 to 2005, and

46 then 2007 to 2008; is that correct?

47 A I was aware. Yes, you can say I was aware. Yes.

Page 18 of the transcript.

George Alexandru (for Defendants)

Cross-exam by Mr. Hirji, continuing

____________________

[93] See Trial testimony of the defense witness mr. Alexandru on page 17-18

     78

 

1 Q Did you take any precaution, or did you take any

2 [indiscernible - accent] to send somebody along to [indiscernible - accent]= Actions

3 investigate what the problem was?

4 A As a strata manager, I'm not allowed to dispatch

5 unless council is backing me up.

6 Q Okay. Did you advise the council at any time, you

7 know, that, look, this guy's complaining all the

8 time. Why don't we send somebody along?

 

35 A Every time I have a complaint I submit in my

36 complaint in front of the council and I advise them

37 that certain actions be taken to mitigate the
38 damages.

39 Q Okay. So basically if I understand you correctly,

40 you did advise the strata council when you

41 presented the letters and everything that we should

42 investigate that?

43 A Well, it's up to them. I -- as I said, my

44 recommendation was on the table. Yes, please,

45 investigate. Yes.

 

266.       The above testimony and evidence of Mr. Alexandru confirms and established the evidence that he reported all Hirjis’ complaints and presented the Hirjis' complaint letters to the Council. The testimony indicates that beside the Hirjis’ complaint made in a letter dated October 27, 2004 relating to the water ingress entered into evidence as trial Exhibit 12. Mr. Alexandru’s testimony indicates there were other letters relating to water ingress that were in the possessions of the defendants besides Trial Exhibit 12 that were presented to the council by the strata manager Mr. Alexandru.

 

267.      Mr. Alexandru’s testimony confirms that he was aware of the problems in the Hirjis’ unit during 2003 -2005 and during 2007-2008 and presented all the letters to the defendants and advised them to investigate and mitigate the damage during 2003-2005.

 

268.       The trial evidence confirms the defendants neglected their duty of care and the protocol and breached the standard of care and failed to address the Hirjis’ complaints in any of the strata meetings from 2002-2006 on west deck and from 2001 to 2008 on east deck or entered them into any strata minutes nor responded to the Hirjis’ complaints and allowed the damage to continue to occur on the east and west deck.

269.       The trial evidence confirms the defense counsel in his closing submissions willfully misled the court with the concocted and made up evidence that he knew to be false and never existed at VCS and obstructed the course of justice.

     79

 

THE DEFENSE COUNSEL CONTINUED TO MISLED THE COURT AND OBSTRUCT THE COURSE OF JUSTICE IN JUDICIAL PROCEEDINGS.

 

270.      The trial evidence confirms the defense counsel in his closing submissions willfully misled the court with the concocted and made up evidence that he knew to be false and never existed at VCS and obstructed the course of justice and violated criminal code s. 139. All trial exhibits entered into evidence confirms that the policy of date stamping not just the Hirjis’ complaints but all VR-44 owners’ complaints never existed at VCS as testified by the witnesses and was false and contrary to the above testimony of Mr. Alexandru.

271.       The defense counsel Mr. Eged at paragraph 58 and 59 continued to obstruct the course of justice and acted in a manner that is directed to judicial machinery itself that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.

 

272.       Trial exhibit 12 was one of the prime evidence that established the defendants’ negligence and breach of duty of care. The above testimony of Mr. Alexandrue confirms that he presented all complaint letters to the council and recommended them to investigate the complaint. The defense counsel continued to mislead the court with the made up facts which he knew never existed at VCS. The defense counsel in paragraph 58 and 59 confirms the following to the court;


“58. The October 27, 2004 letter Mr. Hirji says he delivered by hand to Van Condo does contain a complaint about water leaks”.

 

“59 It is submitted that based on the evidence of George Alexandru it is highly unlikely that this letter was ever delivered to the strata manager. Mr. Alexandru testified that Van Condo's policy is that any correspondence delivered by hand by an owner from one the complexes managed by it is given an acknowledgment stamp and placed in his inbox. He did not recall ever seeing this letter. He testified that he did not recall speaking to Mr. Hirji a number of times about water ingress at this time as stated in the letter and further that he would not speak to an owner about water ingress even one time without doing anything about it. Mr. Alexandru did not recall any dealings with the Hirji's during the period 2003 – 2005”.

273.       The trial evidence confirms there was not a single document presented to the trial judge to confirm or demonstrate to the trial judge that VCS had a strict procedure for recording complaints by owners in writing and anything in writing was immediately date-stamped. The trial evidence confirms that this evidence of VCS had a strict procedure for recording complaints by owners in writing and anything in writing was immediately date-stamped never existed at VSC. The evidence confirms this evidence was concocted by the defense counsel and the defense witnesses to willfully obstruct the course of justice in violations of criminal code s. 131 and s. 139. As described earlier.

     80

 

274.      If such policy of date stamping ever existed at VCS then logically every complaints submitted by the defendants, by the Hirjis’, and by all the owners of VR-44 should have a date on the documents stamped by VCS on the complaint documents. The evidence confirms neither the defendants nor the Hirjis’ documents nor the owners documents relating to the complaints have a date stamped on it.

 

275.       The trial judge failed to follow the rules of evidence and ignored the prime evidence and the supporting testimony of the defense witness Mr. George Alexandru above confirming that he presented all the complaints letters to the defendants.

 

276.       The trial judge failed to use the basic logic and common sense that if such policy of date stamping the owners complaints ever existed at all at VCS than all the Hirjis’ and the defendants trial exhibits entered into evidence would be considered void and there would be no trail because none of the complaint letters submitted by either the Hirjis’ or the defendants as evidence has a date stamped on it, and the defense counsel would have vigorously objected to every complaint letter submitted and entered into evidence by the Hirjis’ that did not have a date stamp by VCS before it was entered into the evidence.

 

277.       The evidence confirms the trial judge acted in a manner that is directed to judicial machinery itself, that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.

278.       The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  65, 85, 86, 87, 88, 6, 147, AND 157 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.

[65] Furthermore, I am satisfied that complaints about water ingress would not have been ignored. Ms. Campbell and Mr. Alexandru testified about the procedures for handling complaints at VCS over the relevant time period. Both testified that their office had a strict policy of date stamping documents relating to any complaints received from owners. Those witnesses also testified that an extremely high priority was given to water ingress complaints; both were clear and firm in their testimony that it was “impossible” that any complaint about water ingress would have been ignored or not acted upon. I find these witnesses were credible and reliable and I accept their testimony on these points.

     81

 

[85] Mr. Alexandru testified that VCS had a strict procedure for recording complaints by owners whether by phone or in writing. He said anything in writing was immediately date-stamped and phone messages would also have a date.This evidence about VCS’s standard practice for receiving and responding to owner complaints was completely consistent with Lyn Campbell’s testimony.


[86] There is no date-stamp on the letter and Mr. Alexandru had no recollection of receiving a written complaint from Mr. Hirji at that time. He had no recollection of speaking with Mr. Hirji several times about water leaks. He was firm in his testimony that it would not be the case that he would have spoken to an owner “several times” and not followed up on complaints. This accords with other evidence adduced at trial where a complaint was recorded and responded to promptly. In particular, unlike the June 10, 2004 letter, no responsive document from VCS was produced, and no strata minutes were produced that references this complaint.


[87] I find Mr. Alexandru’s evidence is credible and reliable and I prefer it to Mr. Hirji’s. I find Mr. Hirji’s October 27, 2004 letter was never received by VCS.


[88] In my view, there is no credible or reliable evidence that Mr. Hirji complained to the defendant about water leaks left unaddressed between 2002 and 2006.


[6] Far from being a victim, I find that the evidence shows that Mr. Hirji has threatened, harassed, and taken any action he thought necessary to get what he wanted, with little regard for the impact he has had on reasonable people, most especially the 64 other owners in the complex. Rather than being unfair, I find that the defendant responded promptly, fairly, and diligently to all of Mr. Hirji’s complaints.


[147] The plaintiffs have failed to prove that the defendant did not meet the applicable standard of care. I find the evidence demonstrates that the defendant responded promptly, diligently, and fairly to Mr. Hirji’s every complaint. I make this conclusion on a bare assessment of what happened with Mr. Hirji’s unit.


[157] Taking everything into account, I conclude the plaintiffs have failed to prove the defendant was negligent. I find the defendant met the standard of care with regard to all of the plaintiffs’ complaints.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 65, 85, 86, 87, 88, 6, 147, and 157 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

     82

 

VR-44 BYLAWS s. 5(1), (2)


ONE OF THE MOST IMPORTANT ISSUES AT THE TRIAL PUT BEFORE THE TRIAL JUDGE TO ADJUDICATE.

 

279.       The central and the prime issue and the essence of this litigation put before the trial judge to be adjudicated was the defendants breach of Strata plan VR-44 bylaws s. 5(2) for unreasonably withholding their consent to grant the conduct of the repairs to the Hirjis’ on the same terms and conditions granted to other owners of VR-44 that would have ended this litigation in September 2007.

HIRJIS GENEROUS OFFER TO END THIS LITIGATION.

 

280.       At the trial Hirjis’ established their prima facie evidence that confirms that had the VR-44 acted reasonably and had accepted the most generous terms offered by Hirjis’ to forgo the negligence, breach of contract, statutory breach and bulk part of rental losses amounting to around $150,000 and other losses suffered from 2001 until 2007, and had the VR-44 granted the conduct of the repairs to Hirjis’ in September 2007 on strata’s own terms and condition granted to other owners of VR-44 than this litigation would have ended in September 2007 and neither the Hirjis’ nor the VR-44 would have suffered any major damages. The VR-44 had nothing to lose and everything to gain by being reasonable and granting the conduct of repairs to Hirjis’ that would have released the strata corporation from almost all liabilities.

 

281.       This would have released the defendants from their statutory breach and allowed the Hirjis’ to get the required repairs done in September 2007 initially with their own money and then get it reimbursed from the defendants in the same manner as the defendants reimbursed other owner of the VR-44. This would have ended this litigation in 2007 and would have allowed the Hirjis’ to sell their unit and released the required capital of $500,000 to inject in their lucrative currency arbitrage and hedging business.

 

282.      At the trial Hirjis’ established their prima facie evidence that VR-44 neglected their duty of care owed to Hirjis’ and violated Strata Plan VR-44 bylaws s. 5(1), (2) and unreasonably refused to grant the conduct of repairs to Hirjis’. The evidence confirms that VR-44 neglected their duty of care owed to Hirjis’ and did not discuss the issues to grant the conduct of repairs to Hirjis’ in the council meeting at any length and breached their duty of care that resulted in Hirjis’ enormous injuries.

283.       The evidence confirms the defendants unreasonably opposed the Hirji's application to grant the conduct of repairs on their own terms and conditions and then failed to carry out the required repairs in a timely manner and tarp the east deck in June 2008 to August 2009 and breached their duty of care.

    83

 

TRIAL TESTIMONY OF DEFENSE WITNESS Ms. BARBARA MACLELLAN

284.       At the trial Hirjis’ established their prima facie evidence that confirmed the defendants neglected their duty of care and did not even discuss the granting of conduct to the Hirjis. On April 28, 2015 Ms. Barbara MacLellan the strata’s ex-president testified and confirmed the following at the trial on page 55-56[94];


55 Barbara MacLellan (for the VR-44 )

Cross-exam by Mr. Hirji


40 Q Yes. 41 A And as there seemed to be a dispute about the
42 scope of the repairs, it's unlikely that the

43 council would have been in favour of having you
44 proceed with the repairs on your own.

45 Q Okay.

46 A But again, I'm -- I think there may have been
47 discussion of that, but I don't think it was

 

56 Barbara MacLellan (for the VR-44 )
Cross-exam by Mr. Hirji


1 Q Yes.

2 A -- very lengthy.
10 Q Also in the letter in the last paragraph I am

11 putting strata on notice that this is affecting my

12 business.

13 A M'mm-hmm.

14 Q And I would like something done fairly quickly,

15 you know.

16 A M'mm-hmm.

17 Q Would you agree with that?

18 A I see that in the -- there, and I remember that

19 being an issue.

TRIAL EXHIBIT 124 THE DEFENDANTS AMENDED NOTICE OF CIVIL CLAIM.

285.       The trial evidence confirms the Hirjis’ applied to the Supreme Court in the within Action on October 24, 2008 for conduct of the repairs to be granted to Hirjis’ at the Strata's expense. The Strata objected to granting the conduct of repairs to Hirjis’, and subsequently refused or failed to carry out the required repairs in a timely manner and tarp the east deck in June 2008 to August 2009.

____________________

[94] See Trial Transcript of Barbara MacLellan strata’s ex-president defense witness on pages 55-56

     84

 

286.      At the trial Hirjis established the evidence In Trial Exhibit 124 the defendants Further Amended Response to Second Further Amended Notice Of Civil Claim filed on February 22, 2011[95] Paragraph 21; In reply to paragraph 93 of the Notice of Claim, VR-44 admit that Hirjis’ made application to the Court and that VR-44 opposed the application but deny that they have refused or failed to carry out repairs in a timely manner.

 

287.      VR-44 in above paragraph states: “VR-44 opposed the application but denies that they have refused or failed to carry out repairs in a timely manner”.

 

288.      VR-44’s false claim is negated at the trial by the prima facie evidence established by the Hirjis’ that confirms VR-44 failed to carry out a SINGLE remediation from 1991 to 2008 on east deck nor made a single attempt to address and remediate the east side deck or responded to any of Hirjis’ written complaint relating to the common property on the east side deck from 1991 to 2008 and neglected their duty of care owed to the Hirjis’.

 

289.       In Ninth Further Amended Notice of Civil Claim Amended pursuant to Order of Madam Justice Sharma on 24th April, 2015[96] the Hirjis pleaded the following in paragraph 46;


"46) As a result of the failure and/or refusal of the Defendant VR 44 to properly remediate Unit I 084, the Hirjis’ lost the rental income from the two upstairs east side bedrooms, which income was vital for the Hirji Ali Hirji's business. The said loss of rental income created a short fall and cash flow problems for Mr. Hirji from 2001 to 2005 and Mr. Hirji's business came to a holt due to cash flow and other problems. The Hirjis’ are not seeking any business losses or loss of opportunities suffered from the Strata from 2001 to 2007. But the Hirjis’ are seeking full damages from VR-44 Defendants from the time they were put on notice from 2007 to 2010. the Hirjis’ were unable to raise or obtain a mortgage, or sell their unit, at market value and as a direct result of the Strata's unreasonable actions Hirji's were powerless to raise money to fund Mr. Hirji's foreign exchange trading operation, the Hirjis’ have sustained loss of income. By E-mails dated May 21, 2007, August 31, 2007 and September 5, 2007, the Hirji put the Defendant VR 44 on notice that the failure of VR 44 to remediate Unit 1084 was causing ongoing and accumulating damages, including loss of trading income, and the Hirjis’ rely upon the line of cases stemming from Hadley v. Baxendale, 1854 9Ex 341 156 ER 145".

____________________

[95] See Trial Exhibit 124 para 21 the defendants Further Amended Response to Second Further Amended Notice Of Civil Claim.

[96] Ninth Further Amended Notice of Civil Claim Amended pursuant to Order of Madam Justice Sharma on 24th April, 2015

     85

 

290.      The Hirjis’ above evidence speak for itself and confirm the defendants were first put on notice relating to the business income in May 21, 2007, August 31, 2007 and September 5, 2007.

 

291.      The evidence confirms the trial judge and the defense counsel Mr. Eged both knew from the evidence that neither the Hirjis’ nor the defendants then legal counsel Mr. Bleay had any desire to continue with this litigation and wanted to end it as soon as possible. The trial judge and Mr. Eged knew that the Hirjis’ were willing to give up most of the damages they have suffered from 2001 to 2007 and end this litigation in September 2007. The evidence confirms that the trial judge and the defense counsel knew that had the defendants acted reasonably and not breached the strata plan VR-44 bylaws s.5 (1),(2) and had granted the conduct of repairs to the Hirjis’ than this litigation would have ended in September 2007 and neither the Hirjis’ nor the defendants would have suffered any major damages.

 

292.      The trial judge suppressed the evidence in above paragraph 277 and the real evidence of the defendants’ breach of Strata Plan VR-44 s. 5(1),(2) in Reasons for Judgment and compromised the judicial oath of office to act impartially and uphold the rule of law and failed to carry out the judicial duties required of a judge. The trial judge in Reasons for Judgment at paragraph 25, and 26 states the following;

293.     The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  25, and 26 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.


[25] The defendant points to the timing of these amendments and says “[i]t is inconceivable that a highly litigious person such as Mr. Hirji would not plead facts supportive of a business loss or loss of sale of the unit if he had believed these losses had been incurred”. The defendant further states in its written submissions:


"It is submitted that the above evidence suggests that Mr. Hirji was making new claims and new facts upon which to base those claims as this action progressed. It is further submitted that Mr. Hirji did so for the purpose of increasing the value of his lawsuit thus putting maximum pressure on [the defendant] and the other named defendants to bend to his demands to repair the Unit exactly in the manner he himself thought it should be repaired and pay him significant amounts of damages in a settlement he routinely testified throughout the proceedings that he wanted".


[26] These are serious allegations. Based on my review, however, these allegations are not exaggerated and have a sound basis in the evidence.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 25, and 26 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

 

294.      The evidence confirms the trial judge failed to carry out the judicial duties required of a judge to act impartially and honestly that is the primary requirement of responsible position of any judicial officer. In paragraphs 6, 147, 157 the trial judge acted in a manner that is fraudulent and directed to judicial machinery itself that is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth, that is positive averment or is concealment when one is under duty to disclose, that deceives court.

     86

 

295.      The trial judge can neither substantiate the made up findings with the trial evidence nor can the trial judge justify the unlawful acts of willfully denying justice to the Hirjis'.

 

296.      The evidence confirms the trial judge falsified the evidence/facts in reasons for judgment at para  6, 147, and 157 to willfully deny justice to the Hirjis and unlawfully make them homeless. The trial judge can neither substantiate the falsified findings of facts in the reasons for judgment to the United Nations General Assembly or to the Human Rights Committee with the evidence submitted at the trial nor can the trial judge justify her unlawful violations of Hirjis fundamental rights under ICCPR to defraud the Hirjis out of their claim for damages against the defendants and their insurers.


[6] Far from being a victim, I find that the evidence shows that Mr. Hirji has threatened, harassed, and taken any action he thought necessary to get what he wanted, with little regard for the impact he has had on reasonable people, most especially the 64 other owners in the complex. Rather than being unfair, I find that the defendant responded promptly, fairly, and diligently to all of Mr. Hirji’s complaints.


[147] The plaintiffs have failed to prove that the defendant did not meet the applicable standard of care. I find the evidence demonstrates that the defendant responded promptly, diligently, and fairly to Mr. Hirji’s every complaint. I make this conclusion on a bare assessment of what happened with Mr. Hirji’s unit.


[157] Taking everything into account, I conclude the plaintiffs have failed to prove the defendant was negligent. I find the defendant met the standard of care with regard to all of the plaintiffs’ complaints.

 

The evidence confirms the trial judge systematically suppresses the evidence at Para. 6, 147, and 157 and violated Hirjis fundamental rights to a fair trial and equal benefit of the law that are enshrined under ICCPR Article 2(3) Article 6, Article 9, Article 14, Article 16, and Article 26 that are binding on Canada as well as under the Canadian Constitution and Charter of Rights and Freedom s. 7, s. 11(d), s. 15 and s. 24(1).

 

B. COLLAPSED SALE OF UNIT.

 

297.      The Hirjis’ written Evidence in Chief submitted at the trial to trial judge and the defense counsel at paragraph 52 states that: "In January 2007 Mr. Hirji attended the Strata council meeting. The Strata assured Mr. Hirji that strata will carry out the required repairs. Strata minutes of January 22, 2007[97] confirms the following: “The Council continued to assure Mr. Hirji they were intending to proceed with the necessary steps to repair his deck to eliminate the problem of water ingress followed by any interior repairs relating to the water ingress”.

 

TRIAL EXHIBIT 34 MR. HIRJI'S EMAIL TO MR. BLEAY.

298.      Hirjis’ established their prima facie evidence at the trial in Trial Exhibit 34[98] in an email sent to Mr. Bleay that confirms on January 28, 2008 Mr. Hirji again put the Defendant VR 44 on Notice that it’s continuing delay in carrying out the promised and required repairs since January 22, 2007 was preventing Hirjis’ from selling Unit 1084 in a favorable market.

____________________

[97] See [binder 5 Page 384 Para. 52] in Notice of motion to a judge or the registrar.

[98] See [binder 2 Page 116] Trial Exhibit 34 in appellants Application for leave

    87

 

TRIAL EXHIBIT 36 MR. BLEAY'S EMAIL WARNING THE STRATA COUNCIL OF THE CONSEQUENCES OF COLLAPSE SALE OF THE UNIT.  

 

299.      At trial, Hirjis’ established in evidence Trial Exhibit 36[99] that On April 1, 2008 Mr. Bleay wrote the following email to VR-44 and warned VR-44 of the consequences of collapse sale of the unit.


“I am told there are outstanding repairs to be done to Mr. Hirji's unit and promises have been made to carry them out. I am not sure why they have not been done but as you can see from Mr. Hirji's e-mail, he has an interested buyer of his unit but the outstanding work must be completed. I am told the work must be done by April 6th in order for the purchase to move forward. The sale of the unit will be good news for all. Please arrange among yourselves to have the outstanding work completed ASAP and for a certificate of completion to be provided. If the work is not completed and the sale collapses, I am confident that Mr. Hirji will pursue a further claim for damages suffered by him as a result of the collapsed sale.”

 

TRIAL EXHIBITS 21, 22, 23 AND 110 PURCHASE AND SALE AGREEMENT AND COLLAPSED SALE OF THE UNIT.

 

300.      At trial, Hirjis’ established in evidence that: VR-44 failed to act on the sound advice of Mr. Bleay and failed to authorize the required repairs on January 22, 2007 that were the responsibility of VR-44. VR-44 failed to carry out the agreed and or required repairs that was the responsibility of the defendants from January 22, 2007 to April 9, 2008 that resulted in collapsed sale of the unit “On April 9, 2008” Trial exhibit 110. effectively preventing Hirjis’ from completing “The agreed sale” Trial exhibits 21, 22, 23[101] of their unit and injecting the required capital in Hirjis’ business.

 

301.      VR-44 unreasonably discriminated and refused/failed to grant the Conduct of repairs to Hirjis’ in September 2007 on their own terms and conditions granted to other owners of VR-44 that would have prevented the collapse sale of the unit and prevented any major damages to Hirjis’ or the strata corporation.

 

302.      Had the sale of the unit not collapsed and had the sale completed on the agreed date at $650,000, less commission that was 5% on the first $100,000 and 1% on the balance, which would have amounted to $10,500.00 after paying out the mortgage in the sum of $130,000, and $10,500.00 in commission, Hirjis’ would have cleared $509,500.00 to inject in their business as they had planned.

____________________

[99] See [Binder 2 page 118 to 120] Trial Exhibit 36 in appellants Application for leave

[100] See [Binder 2 page 146] in Application for leave to Appeal collapsed sale on April 9, 2008 Trial exhibit 110

[101] See [Binder 2 page 136-144] in Application for leave to Appeal agreed sale of unit Trial exhibit 21, 22, 23 .

    88

 

TRIAL EXHIBIT 179 STRATA'S ENGINEER CONFIRMING THE UNCOMPLETED REPAIRS.

 

303.      At trial, Hirjis’ established in evidence in Trial exhibit 179[102] the defendants engineer report of Mr. Touwslager’s dated April 9, 2008 that confirmed that repairs were not completed by VR-44 as of April 9, 2008.

 

304.      At paragraph 135 in Reasons for Judgment trial judge confirms and states the following:

 

[135] The defendant approved the engineering firm to proceed with the recommendations in the May Report that it decided, based on legal advice, were its responsibility. The defendant received a quote for that work from Rudy Sedlak for $73,296, which was approved. The plaintiffs were given the ability to choose accommodation, to be paid for by the defendant, to allow them to leave the unit while it was being repaired. Originally, the defendant agreed to pay for one month’s accommodation which was approved. Hirjis’ were given the ability to choose accommodation, to be paid for by the defendant, to allow them to leave the unit while it was being repaired. Originally, the defendant agreed to pay for one month’s accommodation.

 

305.      The trial judge’s conclusions in paragraph 135 unquestionably established the Hirjis’ prima facie evidence and confirm that VR-44 failed to act reasonably and on the sound advice of their own legal counsel Mr. Bleay’s who had warned them of the consequences of their failure and collapsed sale of the unit. VR-44 neglected and failed to act on the advice of Mr. Bleay and neglected to approve the required repairs promised on January 22, 2007 that were the responsibility of VR-44 and breached their promise or contract which resulted in collapse sale of the unit.

 

306.      The evidence established one of the reasons for the delay and collapsed sale of the unit on April 9, 2008. The evidence establishes VR-44 neglected their duty of care and failed to approve the required repairs that were the responsibility of VR-44 that should have been approved in January 2007 instead of May 12, 2009 which resulted in collapsed sale of unit on April 9, 2008 and resulted in the Hirjis’s enormous injuries which VR-44 knew and were put on notice and were fully aware of the magnitude of damages that will occur.

____________________

[102] See [Binder 2 Page 131 to 132]In Application for leave to Appeal Trial exhibit 179. Mr. Touwslager’s report.

     89        CLICK ON PAGE 3 ON MENU TO CONTINUE..........

    Mohdhirji.com                        PETITION TO: UNITED NATIONS HUMAN RIGHTS COUNCIL

                                                                       UNITED NATIONS GENERAL ASSEMBLY