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DETAILED TIMELINE OF MAJOR EVENTS
ORIGINAL METAXIDES LAWSUIT (2006) APPLICATION FOR JOINDER (2010) LAWSUIT AGAINST CONSENT ORDER (2010) APPEAL OF JUDGMENT (2012-2013) SECURITY OF COSTS OF APPEAL (2012) APPEAL TO PRIVY COUNCIL (2013)
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OVERVIEW In 2006, Apollon Metaxides, on behalf of himself and five other unit owners, brought a lawsuit against Silver Point, primarily to deal with allegations of misappropriations of insurance funds by the Board of Directors after the hurricanes of 2004-2005. In addition, the lawsuit sought to have the court declare whether windows were considered common property or not. Mr. Metaxides himself was on the Board of Directors in 2004, when the first insurance distribution was received, but did not continue on the Board after the end of January, 2005. He was represented by Mr. Edwin Knowles of Sessions House Chambers, a fellow unit owner, who was on retainer for Silver Point in 2004-2005 during the time the first distribution was received. Mr. Knowles received nearly $15,000 from Silver Point for legal services rendered during the two months Mrs. Knowles (his wife) and Mr. Metaxides served on the Board. Mr. Knowles, despite having advised Silver Point on these same matters only a few months earlier and still being the retained attorney for Silver Point at the time, was representing Mr. Metaxides in suing Silver Point. Robert Adams of Graham Thompson & Co. was hired as Silver Point counsel, and upon his advice, the Board of Directors took steps to mount a defense against Mr. Metaxides. At the 2007 AGM, a committee was established to deal with the lawsuit, consisting of two previous Board Members (Larry Biswanger and Graham Groves) and two new Board Members (Brian Cromwell and Peter Kaklamanakis). This committee was given the authority to negotiate a settlement with Mr. Metaxides if possible, and bring the results back to the owners at a General Meeting. No correspondence on the matter was provided to the owners by the Board of Directors until June, 2009, when it was announced that a Consent Order had been already been agreed to by the Board of Directors and signed into the record of the court by a judge. The assigned committee did not meet, nor was the committee made aware of the Consent Order until it had already been signed. Robert Adams, counsel for Silver Point, was not consulted. This Consent Order created many new rules for the management of Silver Point, including a provision to force owners to change out their windows and doors at their own expense, many of whom did not install the windows in the first place, and others who had made these changes decades ago, often at the urging of the Board of Directors. It also paid $25,000 to Mr. Metaxides attorney, fellow owner Edwin Knowles, and relinquished rights to the $33,000 that Silver Point had already spent in litigation. Should Silver Point have prevailed in litigation (as their attorney advised that they would have), then Mr. Metaxides would likely have had to reimburse Silver Point for these costs. All told, $52,000 of owners' money was surrendered by the Board of Silver Point to Mr. Metaxides without the knowledge or consent of the committee or or the owners. An eruption followed, and a committee was formed to deal with the matter. In late 2009, Doug Collins brought a lawsuit against the Board of Directors and Brian Cromwell seeking to have the Consent Order set aside (removed). He also sought an injunction to stop enforcement of the Consent Order. The Board of Directors ignored the advice of the committee, and instead decided to go to court to defend against Mr. Collins. The owners were again not consulted. This decision led to the resignation in protest of two board members, Johann Swart and John Manley. During the injunction hearing, the judge declared that the provision declaring windows and doors as common property was not in accordance with the law, and instructed all parties to engage in discussions to resolve the issues with the legality of the Consent Order. Instead, Mr. Metaxides and the Board of Directors signed an Amended Consent Order and filed it with the court without any notification given to Mr. Collins or his attorney, or any unit owner. No discussions were held. Robert Adams, the attorney for Silver Point, sent two letters to Silver Point advising them that the Consent Order was illegal, but the advice was ignored. Instead Robert Adams was advised that he had been fired. The attorney of record for Silver Point in the Collins action was Edwin Knowles, the attorney for Mr. Metaxides, who had just sued Silver Point. Ultimately, Mr. Collins withdrew his action, with leave to file another one if he saw fit. A group of six owners - Johann Swart, Larry Biswanger, Bill & Susan Taylor, Scott Moncrieff, Carol Haythorne and Toni Donato - filed an application in 2009 to be joined to the action for the purpose of appealing the Consent Order. They hired Fred Smith of Callenders & Co, who advised that they pursue a separate action, rather than joining in the current action, and subsequently the joinder application was withdrawn, with no cost being incurred by Silver Point. Callender's & Co. sent multiple letters to the Board of Directors and Mr. Metaxides, requesting to negotiate a settlement to avoid litigation, with no response. As a result, a Summons was filed in November, 2010 by four unit owners - Johann Swart, Larry Biswanger, Bill Taylor and Scott Moncrieff, seeking to set aside (remove) the Consent Order and have it declared illegal. Callender's & Co. sent another letter to the Board of Directors asking them to voluntarily agree not to enforce the Consent Order until the end of litigation. Again, no response. As a result, an application for injunctive relief was filed to stop enforcement until the end of the litigation. Three days of injunction hearings took place, ending with the Board of Directors agreeing not to enforce the Order until the end of litigation - the very request that could have been granted before with no money spent, wasting hundreds of thousands of owner dollars. In May, 2011, the Board of Directors and Mr. Metaxides each applied to the court for leave to file a counterclaim against the four unit owners. The court denied their request, stating it was without merit, and assigned the costs of the counterclaims to be paid by Mr. Metaxides and Silver Point to the four unit owners. Three new Board members, Toni Donato, Ben Zuk and Larry Biswanger, all resigned from the Board in protest when informed by the Plaintiffs (not the rest of the Board) that the counterclaims had not only been filed without their knowledge or consent, but that now as a result of this action by the original four Board members, another estimated $100,000 of owner's money had been wasted. In November, 2011, the trial finally took place, after being postponed three times, and after four days of trial, and four months more, the Justice Longley issued his judgment in favor of the defendants, dismissing the action, on March 16, 2012. On March 16, 2012 the Plaintiffs notified the Defendants of their intent to Appeal the ruling, and requested that they agree not to enforce the judgment until the Appeal could be heard, in order to save costs to all parties. The Defendants again refused and on April 4, 2012, the Plaintiffs filed for Stay of Enforcement Pending Appeal. The Stay was granted by the Court of Appeals. On April 26, 2012, the Plaintiffs filed a notice of Appeal, alleging 34 different points of law on which Justice Longley erred in his judgment of March 16, 2012. The Court of Appeal took on the first of 34 points as a preliminary point, and after 3 days of hearings, ruled in favor of the Appellants. The judgment of Longley J was overturned, and all costs awarded to the Appellants. As expected, Silver Point's counsel, directed by the remaining BoD members in a clear conflict of interest, did not argue that the owners should be spared costs or that the Directors or Metaxides should have to pay instead of the owners. The BoD continued their stance that since the owners did not throw them off the board, the owners had thereby "approved" of all of their actions. Few owners objected to this stance. As a result of the Appeal, the Consent Order has been declared void and invalid and removed from the record. Metaxides has been ordered to repay the $25,000 of owners' money in legal fees that he was gifted in the Consent Order. Owners rights and governance of the condo have been restored. The Original Metaxides Action from 2006 has been declared a nullity. SPCA may now seek to recover the remaining legal fees for the action from Metaxides, but this is unlikely to happen until a new Board of Directors is elected. SPCA and Metaxides are appealing to the Privy Council, but costs of the action to this point will likely become due and payable before the hearing takes place. Callender's & Co. has already filed bills of costs in excess of $1.6 Million, and this does not include the fees for Silver Point counsel, which have recently been revealed to be approximately $256,000.00, of which $196,000.00 remain unpaid, or additional costs which have been awarded to Callender's for the failed objections to the Court of Appeal taxation hearings. If Silver Point and Metaxides win in Privy Council, the matter will return to the Court of Appeals to hear point #2 of 34. If they lose, then the entire action is final and additional costs will be payable by Silver Point and Metaxides for both their counsel and that of the Plaintiffs. MORE INFORMATION See our Frequently Asked Questions for more information about how your rights and your finances may be affected by the outcome of the action. Anything you don't see, you are always welcome to ask us.
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