Mad about Harry
Nov. 12, 2006. 07:16 AM
Harry Stinson. Presenting all in grey. A sliver of a man. Phantomesque, whooshing through the lobby at 1 King West, the startlingly svelte condo-hotel that elegantly graces, without argument, the Toronto skyline.
He is wary, Mr. Stinson is. And he is weary.
The reasons are numerous. He is in the middle of relaunching — any day, he says — his Sapphire Tower development on Temperance St. He is busy micromanaging "deficiencies" at 1 King, which he says he must personally fix. He is frustrated as all get out over a tax matter that, not to put too fine a point on it, is crucifying the vast majority of 1 King unit owners.
Oh and he owes David Mirvish $12 million. Well, 11.8.
Speaking to this last point Stinson sighs. "There are," he says, "a lot of players within this soap opera who love to characterize virtually everything they can in a scary way. I don't think either David or I are out to scupper each other ... We're both saying we want to get this resolved. We both know it's difficult."
On Sept. 15, Stinson Hospitality Inc., of which Harry Stinson is sole owner, issued an offering memorandum in which the condo entrepreneur announced that he was looking to raise $30 million.
In many ways there was nothing new in this. Anyone who has followed Stinson's career, or invested in one of his developments, knows that Stinson is always looking to raise money from individual investors, conventional bankers having little interest, Stinson has often said, in providing any backing.
Still, they were some eye-catching elements to this particular offering.
That the minimum investment sought was $10,000 made it seem rather sad, rather small. That Stinson Hospitality defined itself as the owner of the "critical operational components" at 1 King — the front desk, the valet service, the service elevator and other elements — certainly seemed unconventional.
Most revealing, the use of proceeds as outlined in the document disclosed that a deadline to pay $6 million to 1 King West Inc. had come and gone in June and that an extension had been agreed to giving Stinson until Oct. 31 to pay up.
Readers may have been confused. While Harry Stinson is the face of 1 King, the condo-hotel that he created, the owner of the company that developed the building, 1 King West Inc., is David Mirvish, who long ago rode to Stinson's financial rescue. Mirvish sold to Stinson the components of the enterprise that constitute Stinson Hospitality for $11.8 million. It was on this that Stinson owed a first payment of $6 million. That deadline had come. And gone. And come again.
Additionally, the memorandum disclosed that Stinson's company was subject to a claim for $2.4 million, again by 1 King West Inc., for unspecified work done on the suites in the building. There was a further loan, for $1.7 million, that Stinson was seeking to discharge. Finally, Stinson Hospitality had accounts payable of approximately $2 million and accrued liabilities of approximately $3.9 million. In addition to parcelling all of his debts on the property into one neat package, Stinson further hoped to buy David Mirvish out of the unsold 1 King West units that Mirvish still owns: the project's three penthouses as well as 30 modestly sized suites. All in, he was looking for 30 mil.
On Oct. 16, a throng of more than 120 gathered in a banquet room in the old, now refurbished, Dominion Bank building — the grandly historic part of the 1 King project. Individually, and in pairs, this group represented a hefty cross section of the 1 King unit owners. At the front of the room, Bob Verdun, president of the condominium corporation, walked the attendees through what we will gently call their dilemma.
To understand the root cause of the dilemma, one must travel back not to the very beginning, when Harry Stinson first dreamt of his King Street spire, but the point at which Stinson was seized by a novel idea.
Stinson tends to be seized by novel ideas. Lots of them.
This particular idea was to market 1 King not as a plain vanilla condominium, but a "unique condominium which will operate as if it were a private hotel."
In his typically indefatigable way, Stinson pitched the concept on his daily infomercials and printed reams of material outlining the project's investment details. While 1 King would carry the imprimatur of a private hotel, wrote Stinson, "it must be emphasized that the complex is ENTIRELY a residential condominium and all suites are individually owned. At One King West, there is no separate `public' hotel, (or hotel owner)."
The individually titled condominiums could be leased through a centralized management system for any period of time. The appeal of owning such a residential property, leased as a hotel room, was Stinson's promised return on investment. Under the "Canadian Plan," by example, "an owner receives a fixed rental income equal to a 10 per cent return on funds invested."
"Throughout history," said the 1 King marketing materials, "successful investors (no matter their original career) have always protected themselves by including in their assets some prime real estate. One King is an address that will soon become an international status symbol ... more durable than a dot.com stock ... more enjoyable than a mutual fund ... more cash flow than a T-bill ... less depreciation than a Porsche!"
Under "Frequently Asked Questions" was this query. "What are the property taxes?" To which this answer was given: "Residential property taxes in the City of Toronto are currently 1.07 per cent of the property value."
Piers Hemmingsen was one of many investors to be smitten by 1 King. He talked to Stinson. "He just impressed us with his big ideas about the space," says Hemmingsen. "It doesn't get any more central than Yonge and King." Hemmingsen was particularly enamoured of the Canadian Plan promise. "When I was looking into it, a 10-per-cent yield was really good," he says. "I thought it was a real enticement."
He had no way of knowing that there was trouble brewing, and on more than one front.
Sandy Kilgour is a lawyer at Miller Thomson, which, on the matter of 1 King, acts for the Mirvish interests. It was Kilgour, recalls Stinson, who raised the possibility that what was being marketed to investors was entering into the realm of the Ontario Securities Commission.
"I flagged the situation with respect to the advisability, prudence, of getting an exemption order from the OSC," concurs Kilgour, though he and others recall rumblings emanating from the OSC over Stinson's promises of a guaranteed investment return.
Kilgour knew that should 1 King be viewed by the commission as a security, it would be required to file a prospectus, unless an exemption order was applied for, and granted.
"We don't take a jurisdiction or regulate real estate transactions," says Erez Blumberger, assistant manager and senior legal counsel at the Ontario Securities Commission. "But the moment the transaction crosses into the world of securities, that's our bailiwick. One King West was selling condo hotel units and they had securities features to them because they had a rental pool feature." By virtue of that rental pool arrangement, continues Blumberger, Stinson was offering an investment contract.
As such, it triggers the requirement, under the Ontario Securities Act, to register a prospectus. "In the past," says Blumberger, "we've granted relief from registration of prospectus requirements in a number of instances because for public policy reasons we were comfortable that in effect the transaction was more real estate than security, if you will."
On Nov. 22, 2004, the OSC ruled that 1 King would be exempt from issuing a prospectus, under certain conditions, which, in part, compelled 1 King to issue to all purchasers a Rental Management Disclosure Memorandum.
The following month, the memorandum was packaged off to investors.
This document, along with a Condominium Disclosure Memorandum that went to purchasers the previous August, unravelled some of Stinson's early promises. No longer were purchasers being guaranteed a fixed return on their investment. Gone too was Stinson's breezy suggestion that the units would necessarily receive residential tax treatment. On the contrary, the latter memorandum made clear that it is "anticipated" that the taxes would be based on a commercial assessment, and that the commercial realty tax rate "would be significantly higher then [sic] the level of realty taxes that would otherwise apply to the unit on a residential assessment basis."
The ruling makes clear that "trades" — that is, sales — to existing purchasers of residential units, "Have been made in contravention of the prospectus and registration requirements of the Act." All purchasers were given the right of rescission: a 10-day cooling-off period to exit the investment.
"He has acknowledged to the existing investors via the ruling, which he has delivered to them, that he has not complied with securities laws," says the OSC's Blumberger. "And via the same ruling acknowledged to those investors that he is not to make these types of projections ... All of the existing investors were given a free pass, if you will, to back out of the investment."
`There are a lot of
players within this
soap opera who love to characterize virtually everything they can
in a scary way'
creator of 1 King West, commenting on the saga
Who among them read it? Who among them understood what it was?
The package itself bore the hallmarks of Stinson's salesmanship. The first page was a newspaper column — from this paper, as it happens — about 1 King and its architectural contribution to the city's downtown. Pages two and three consisted of a letter from Stinson himself: "The physical structure of One King West is now very real, and by all accounts has become a widely admired landmark on the Toronto skyline." And so on.
In the third paragraph Stinson says the enclosed memorandum "will provide a better understanding of subtleties [sic] of the financial and legal structure of the leasing program." He then devotes two pages to the building's management team, followed by a page of colour photos of a sample hotel suite. Sure enough, after that, comes the all-important disclosure memorandum.
Did Piers Hemmingsen read it? "Oh my God, it was like a 100-page document," says Hemmingsen. (It's 58 pages.) "I thumbed through it." He says he did not understand that the nature of his investment had changed, nor that he could be facing a seismic tax hit.
A woman we will call Helena, who asks that her name not be used, purchased a unit at 1 King with her husband. "We have put most of our life savings into it," she says. "We've been in the country 15 years. I worked so hard. The thought of the guarantee made us sign on the dotted line." Neither she, nor her husband, read through the package.
Question for Harry Stinson: Did he feel that he was signalling to his purchasers that this was a vitally important document they should read? "I'm choosing my words carefully here," he says. "This document was fully approved and edited and re-edited by Miller Thomson. Interesting how much I'm held responsible for considering how tight the controls from Mirvish Productions and Miller Thomson have been for the last five years."
He then pushes the responsibility puck over to the OSC. "It wasn't like I was doing this in a secret back alley," he says. "I've been all over, since 1998, infomercials and ads. This has gone on for seven years and all of a sudden they're thinking, oh, this might be a security? Well, that's fine. But you know I'm two blocks away from you [the commission] and I have been (for) my entire career, on television every night saying the same thing. And now you're showing up and saying this just crossed our minds?"
The narrative trope that Harry Stinson has written for himself, which has played out in the media time and again, is that he is a man misunderstood and often under siege. From his days at the Candy Factory, when he was ahead of the curve in predicting the popularity of loft conversions with hip urbanites, Stinson has bemoaned that the financial establishment has found him, to use his word, "bewildering." As evidence, he would point to the Candy Factory itself, a project over which he lost control and was broken-hearted.
In order to sustain such a narrative, a character or characters have to play the role of the bad guy.
At 1 King, Peter Kofman was the project manager and it is Kofman who has been stuck wearing one of the black hats.
Seated in the boardroom at Mirvish Enterprises on King Street, surrounded by wall-to-wall art books, Kofman says he was hired by Mirvish "to ensure that his interest and the bank's interest and the fundamental components of the project were met."
David Mirvish had entered the project long before, at a time when Stinson owned only a sliver of property at 5 King. "He was being foreclosed on, and I thought, oh, this is too bad," recalls Mirvish. "I was drawn in. I was not unsympathetic. I wanted to be drawn in."
It was Mirvish who made the purchase of the Dominion Bank happen, passionate, as he was, about preserving a historic building in the downtown core. And so it was Mirvish who enabled the growth of the development, securing a construction loan from the Caisse de dépôt et placement du Québec for, roughly, $90 million. "Every month," says Kofman, "they [the Caisse] would come in. Before they would issue a construction draw they would come here and I would have to answer for what was going on in the project." The loan has since been discharged.
The project morphed. Dramatically. "There was a stage in the middle of this when he changed all the apartments on us," says Mirvish. "That costs money." The appointments and finishes being offered to purchasers changed dramatically too.
In September, leading a quick tour of the premises, Stinson repeatedly bleated about what he saw as execrable carpeting and cheap lighting fixtures. This, he said, was the fault of the project manager. "He has extreme disdain for me," says Kofman. "He has said all kinds of terrible and nasty things about me."
Kofman is not alone in suffering the enmity of Harry Stinson. Steven Dean runs a company called Parking Specialists Inc., which signed on for the Herculean task of shunting cars in and out of the bowels of 1 King. Know this: the below-ground parking at the site is unramped. There is one elevator. One. Plus, there is the fleet of Stinson vintage automobiles to be managed, cars that are used to limo hotel guests about town.
Dean seems still shell-shocked by the experience. He says it took 30 employees to staff the operation. It was madness. The ceilings are so low down there, he says, "If you put the wrong cars in the garage we'd rip the roofs off, and we did."
Stinson was not temperate in his demands. "He yelled at us every day," says Dean. "But that's just Harry." He recalls Stinson's fury when he failed to find his black Cadillac, which Dean, needing the space, had parked in an uptown lot. So Stinson drives to the lot and Dean drives to the lot and it's 2 in the morning and Stinson is yelling and there's spit coming out of the side of his mouth. "You have three days to write me and tell me why you should be running this business," yelled Stinson.
In the early fall, Parking Specialists exited the project, having spent a year trying to make Harry Stinson happy.
Steve Dean is not, however, licking his wounds. In his absence, Stinson has assessed the parking, which he himself now manages, as a "disaster." He has recently had conversations with Dean about a new contract. Dean is interested, but, he says, "I won't be answering my emails. Just because Harry has a brainfart at 3 in the morning doesn't mean I'm going to get up and answer it."
In his understated fashion, David Mirvish offers this thought on Harry Stinson: "Visionaries are fun and complex."
In mid-September, Piers Hemmingsen received his tax bill from the City of Toronto for the 560-square-foot condominium he owns at 1 King. In company with more than 400 other unit holders, Hemmingsen had placed his condo in the hotel pool, eagerly awaiting a return on his investment.
When asked about the hotel, Stinson will repeatedly say that "to everyone's surprise," the hotel is working. Occupancy currently, he says, is running at 90 per cent. The lobby is humming. 1 King has been blessed by this one thing: location.
A quick viewing of a unit on the 37th floor reveals a majestic view of the lake. The linens are nice. It is, however, the size of a modest hotel room and as much as it has a microwave and a mini-fridge, it is not any kind of accommodation for long-term living. (Stinson says the "cooktops" are now being installed.)
Any observer would quickly understand that the space had been created for a commercial purpose. As a hotel room.
And this is precisely the way these units have been taxed. In Hemmingsen's case, his tax bill was a whopping $11,264.19, reflecting a commercial tax rate in excess of 4 per cent. Bob Verdun's tax bill: 16 grand.
To all affected taxpayers — and this group includes David Mirvish — the inequity is clear. While those units placed in the hotel pool have been taxed commercially, they have been valued residentially — in Hemmingsen's case, a valuation of $294,000. "Traditional hotels are valued on an income approach," says Peter Milligan, a lawyer at Miller Thomson and counsel to the Greater Toronto Hotel Association. The Municipal Property Assessment Corp. makes its assessment on a hotel's pro forma income statement, based on its actual performance. The difference: on a per room basis, the taxes paid in an upper-end hotel room similar to 1 King are less than half what the 1 King condo owners currently face.
"They in truth have destroyed the value of everyone's ownership," says Mirvish of the tax treatment. One King owners have been encouraged to appeal their assessments. They have until next week to do so.
On Oct. 31, Finance Minister Greg Sorbara sent a letter to Brian Smith, vice-president of the 1 King condo corporation. "It has become clear that the condo hotel concept is gaining in popularity as a means of financing the construction of new hotels," wrote the minister in response to 1 King's plea for a review of the tax treatment.
A spokesperson for the ministry confirms that a review is under way, evaluating the current property assessment and tax treatment for each type of hotel.
How long that might take, no one knows. "These are typical Canadians," Stinson says of 1 King investors. "If this were Arkansas they'd get in their trucks and go down and shoot out the Legislature." It seems fair to ask: Why does the responsibility for due diligence never seem to rest with Harry Stinson.
On Monday of last week, Harry Stinson met with David Mirvish. At his side were Bob Verdun and Brian Smith. The deadline had come. And gone. Mirvish says that an "answer" has been found, though he declines to say what that answer is. "I think Harry will fulfil that obligation to me regarding that answer."
David Mirvish concurs with Stinson's assessment that 1 King has been a soap opera. But he persists in saying he wants nothing but good things, nothing but success for Harry Stinson.
Stinson has consistently said that Mirvish has been astonishingly patient. He will not clarify what arrangement he has now made with the theatre impresario, though one thing is clear: David Mirvish has not been paid. Stinson, uncharacteristically, sounds utterly spent.
"If Bill Gates and Sheik al-Waleed were to make an offer, I think we would collectively consider it," he says wryly. "We'd all take our marbles and go home."
Additional articles by Jennifer Wells