Condo Law Digest - January 2014

Peel Condominium Corp. No. 98 v. Pereira, 2013 ONSC 7340
Decision Date: November 28, 2013
http://canlii.ca/t/g2b2r

Mr. Pereira has been the owner of a unit in the condominium since 2001.  Since 2003 he has been accused of repeatedly violating section 117 of the Condominium Act (which prohibits activity likely to damage property or cause injury), with more serious incidents occurring after 2010.  Specific complaints against him include that he conducted car repairs in the underground garage, that he made defamatory postings on a website, that he threw cat feces and cat litter from his balcony, that he assaulted a former employee of the corporation (criminal charges were laid and withdrawn after he entered into a Peace Bond), that he transferred a bench from the lobby to the tenant workshop, and that he threatened and used extremely crude language when interacting with staff and other residents.  Some of the accusations were supported by sworn affidavits.

The corporation asked that Mr. Pereira be required to sell and vacate his unit within 6 months and that he remove any animal from his unit within ten days.  Justice Donohue found that while Mr. Pereira had acted in an  “inappropriate and abusive manner” and his actions were “extremely serious and troubling” a forced sale of his unit would be too severe a sanction.  Instead the court ordered him to comply with all provisions of the Condominium Act and with the rules, declaration and by-laws of the corporation.

Comment: Justice Donohue quoted the ruling in York Condominium Corporation No. 136 v. Roth according to which an order of forced sale is “extraordinary relief” and “draconian.”


Welch v. Peel Standard Condominium Corp. No. 755, 2013 ONSC 7611
Decision Date: December 10. 2013
http://canlii.ca/t/g2b4c

In February 2008 Mr. Welch, a resident of the condominium corporation, slipped and fell on an icy sidewalk within the common area of the facility and injured his back. In November 2008 an associate with the law firm retained by Mr. Welch spoke with the adjuster assigned to the case, asked if there were any other maintenance companies involved, and was told that there were not.  (This conversation was confirmed by a handwritten note.) In September 2009 plaintiff counsel placed the corporation and the property management company on notice.  Examinations for discovery were scheduled for June 2010 but did not go ahead because defense counsel were informed by their clients that they had contracted with a maintenance company, Forest Contractors, at the time of Mr. Welch’s injury.  All counsel involved agreed that the plaintiff would add Forest as a defendant.  Mr. Welch’s lawyer provided a draft amended statement of claim in November 2010.  The defendants did not provide their consent until April 2011, and the plaintiffs issued the claim against Forest at the end of August 2011.  The condominium corporation and property management company then cross-claimed against Forest Contractors.

In this action, Forest Contractors brought a motion for summary judgment to dismiss both the plaintiff’s claim and the cross-claim, on the grounds that they exceed the two year limitation period.  They argued that the plaintiff’s limitation period expired in February 2010 and the limitation period for the cross-claim expired in September 2011, two years after they were served with the statement of claim.  Justice Baltman found that the issue of whether the plaintiff had made adequate efforts to learn about Forest Contractors’ involvement before June 2010 could not be resolved on a summary judgment motion.  However he allowed the motion against the condominium corporation and the property management company.

A follow-up to an earlier case:

In the June 2013 Digest I summarized York Condominium Corporation No. 62 v. Superior Energy Management Gas L.P., 2013 ONCA 789.  An appeal was dismissed in December 2013.

Domestic Violence - New Post at Nautil.us

Nautilus is a new science magazine with a different focus each issue.  Their latest focus is "Home,"  and you'll find great articles on a wide variety of topics related to homes.  You can also find my contribution: Not so Sweet Home: The Persistence of Domestic Violence.

Condo Law Digest – December 2013

Stanley Gordon v. York Region Condominium Corporation No. 818, Ed Rotman, Ahsan Zaiyouna, Harold Davis, Eugene Katz & Manfred Kapp
Decision Date:  August 21, 2013
Text of Ruling: http://bit.ly/1eWv8aC
Judgment on Costs: http://canlii.ca/t/g1qtp

Mr. Gordon, together with the named defendants, are members of the Board of Directors of York Region CC No. 818.  The corporation’s by-laws contain a provision that a Director may be removed if he or she violates the Director’s Code of Ethics on three occasions over the course of a term.  The by-laws also contain a procedure for an ethics review. In November 2011 Mr. Gordon was accused of breaching the standard of care of a corporate director and of failing to act honestly and was removed as Director following an ethics review.  Mr. Gordon asked the court 1) to have his disqualification as Director to be declared invalid; 2) to have the by-law declared contrary to section 33 of the Condominium Act and therefore invalid; 3) to be re-instated as Director; and 4) other relief.  The Respondents brought a counter-application asking for 1) a declaration that the by-law is valid; 2) a declaration that Mr. Gordon’s removal from the Board be upheld; 3) an order upholding the determination of the ethics review; or failing that 4) a finding (on the evidence before the court) that Mr. Gordon breached the standard of care of a corporate director.

Judge McCarthy ruled that while the by-law was acceptable and not contrary to the Condominium Act, the ethics review conducted by the Board did not conform to minimal standards of procedural fairness or natural justice.  Rather, it was “plain and obvious” that one of the Directors was seeking to unite the others in removing Mr. Gordon.  The judge set aside the disqualification but declined to re-instate Mr. Gordon.  The Board is at liberty to conduct a fresh ethics review within 90 days.

Comment:  I’ve written about some of these issues before, in the context of Bill 168 and workplace investigations: How to Write a Code of Conduct, Investigating Complaints under your Policy, and Investigations Gone Wrong.

Condo Law Digest – November 2013

Ottawa-Carleton Standard Condominium Corporation No. 671 v. Friend, 2013 ONSC 5775 (CanLII)
Decision Date: October 9, 2013
http://canlii.ca/t/g0x7z

At a meeting of owners in November 2008 it was decided that the water meters would be replaced with energy meters, so that the energy costs for each unit could be fairly determined.  The condominium agreed to pay for the purchase and installation of the new meters.  After about a year meters had been replaced in 49 of the 50 units.  The owners of the remaining unit, Mr. and Mrs. Friend, advised the corporation that they would allow access to their unit only under certain conditions.  The condominium found these conditions unacceptable and informed the Friends that if they did not provide access for the purpose of installing the new meter they would ultimately be required to pay the installation costs themselves.  Over the next 18 months the corporation continued to request access to the unit and warned the Friends about the possibility of bringing a court application.  The Friends continued to refuse access, a court application was brought, and a case conference was held in November 2012.  At that time it was agreed that a new water meter would be installed, and that payment for the installation, obligations to pay outstanding water charges, legal costs and various bylaw violations related to storing sports equipment on the unit’s balcony, would be the subject of a future hearing.

At the hearing, Judge Maranger found that the condominium acted in a manner that was “fair and reasonable” and that the respondents (particularly Mr. Friend), “simply decided that the rules of the condominium were not going to apply to him.”  He ordered the Friends to comply with all bylaws, and to pay for installing the meter, for outstanding water charges as calculated by the condominium, and for $15,000 in legal costs incurred by the corporation.

Comment:  I can only quote the judge: “That a matter such as this ended up in Court is unfortunate, the cost consequences here are 5 to 10 times the value of the claim.”


A follow-up to two cases I reported in the September Condo Law Digest:



In Green v. York Condominium Corporation No. 834 and ThyssenKrupp Elevator (Canada) Ltd. the plaintiff was ordered to pay to the defendant $20, 000 in legal costs and over $8000 in disbursements.

In 673830 Ontario Limited v. MTCC 673 the plaintiff was ordered to pay the defendant costs in the amount of $15 000.

Condo Law Digest – October 2013

Mitchell v. The Printing Factory Lofts Inc., Beaverbrook Homes Inc. and Anthony Lanni 2013 ONSC 5603 (CanLII)
Decision Date: September 5, 2013
http://canlii.ca/t/g0d7j

In February 2007 Ms. Mitchell entered into a written agreement to purchase a unit in The Printing Factory Lofts on Carlaw Ave., with the understanding that her unit would have an exterior door onto the street.  After construction began Toronto Hydro informed the developer that duct banks were to be placed in an area that prevented the proposed exterior door.  In November 2009, after Ms. Mitchell complained about the exterior door loss, she was given three options:  Accept the unit as is; move to another available unit of the same size with an exterior door for the same price; or mutual release from the written agreement.  None of these options was acceptable.  Ms. Mitchell took possession of the unit in January 2010 and closed the sale “under protest” in June 2010.  She submits that the condominium corporation, the developer, and Mr. Lanni, an employee of the developer, are liable to her regarding removal of the door.

In this action Beaverbrook Homes and Mr. Lanni moved for a summary judgment to dismiss the claims against them, on the grounds that they were not privy to Ms. Mitchell’s agreement with the Printing Factory Lofts.  The judge found no evidence that Beaverbrook or Lanni were liable to Ms. Mitchell as agents of the Printing Factory Lofts. He agreed to grant the motion and ordered that Ms. Mitchell pay $5000 in costs to Beaverbrook Homes and Mr. Lanni. (The parties had agreed previously that the successful party in the motion would be entitled to costs in that amount.)

Comment: The door is not closed on Ms. Mitchell’s action against the Printing Factory Lofts, which includes claims of deficient work and Ontario Building Code issues.


Dhillon Group v. Peel Standard Condominium Corporation No. 919, 2226828 Ontario Inc. and Rajiv Kumar Johri 2013 ONSC 5719 (CanLII)
Decision Date: September 16, 2013
http://canlii.ca/t/g0lht

In 2010 Mr. Dhillon purchased a unit in PSCC 919 for use as an accounting office, with the understanding that the condominium’s Declaration contained a restrictive covenant prohibiting any other unit from also operating as an accounting office.  Shortly after, Mr. Johri (director of 2226828 Ontario) renovated his dry cleaning business in PSCC 919 and began preparing tax returns there, as well as offering tax and financial planning (and dry cleaning).  PSCC 919’s Declaration states that it is not the responsibility of the Corporation to enforce restrictive covenants, and that PSCC shall not be added as a defendant for failing to enforce a restrictive covenant.

The issues for determination were 1) whether Johri’s use of his unit constitutes an “Accounting Office”; and 2) whether the portion of PSCC 919’s Declaration denying responsibility for enforcing restrictive covenants was contrary to the Condominium Act and therefore unenforceable.  Judge Firestone found that 1) Johri’s activities in his unit did indeed come under the scope of running an “Accounting Office” and that he must cease or cease permitting the use of his unit for any services carried out in an accounting office.  2) The portion of PSCC 919’s Declaration under dispute is inconsistent with section 17(3) of the Condominium Act and must be amended.

Comment:  I wonder how many other condominium Declarations contain unenforceable provisions.


Diamantopoulos v. Metropolitan Toronto Condominium Corp. No. 594, 2013 ONSC 5988 (CanLII)
Decision Date: September 23, 2013
http://canlii.ca/t/g0nkc

Judge Corbett found that the issues brought by the applicants were too insignificant to be litigated or mediated and invoked the Latin maxim: De minimis non curat lex.

These issues included (judge’s comments in parenthesis):
1.  Warnings made by condominium management regarding the applicants’ conduct in the exercise room.  (No outstanding conflict.)
2.  Recent conflict between the applicants and their upstairs neighbours. (Condominium management behaved reasonably in directing the applicants not to contact their neighbours directly.)
3.  The applicants were accused of behaving rudely towards security personnel and have been asked to avoid dealing with them except in the case of a genuine emergency.  (“This should solve the problem with a minimum of fuss and bother.”)
4.  The management of TCC 594 has asked the applicants to use the management office when communicating with members of the Board. (“Sound policy.”)
5. Management blamed the applicants for damage to the door of their neighbours’ unit and asked them to pay for repairs.  (No issue here since the request was later dropped.)

The judge dismissed the application.  The respondents had asked for partial indemnity costs of $5800. However since the respondents argued that the matters should come to court rather than to mediation (and this approach “fanned the flames of conflict”) they are entitled to recover only $2500.

Comment:  Due to Judge Corbett’s unfortunate extended medical absence, the parties had to wait nearly a year for this decision.

Why You Should Never Ignore a Letter from the Condo Board

When I read about condominium disputes, I am often struck by how the conflict could have been resolved a lot sooner (and for much less money) if only the unit owner had responded to the Board’s letters.

 A typical scenario goes something like this:  The owner gets a letter notifying her that her dog Fluffy has been barking and annoying neighbours, or that her trumpet playing is too loud, or that the holiday decorations she has put up do not comply with the condominium’s rules.  The owner thinks –“There must be some mistake.  Fluffy never barks.” Or, “I never play the trumpet after 10 p.m.” Or, “I put up the same decorations last year and no one said anything.”  So she ignores the letter.  Or maybe she has a chat with the condominium manager, or with a board member, and feels reassured by what she hears.  Another letter comes regarding Fluffy (or the trumpet playing, or the decorations) this time from the board’s lawyer.  She ignores that as well, assuming that whatever problem there may have been has been resolved.  Before she knows it, she is summoned to a mediation with the board and is asked to reimburse the legal expenses that the board incurred in getting her to comply with the regulations.

 It is never a good idea to ignore a communication from your condominium manager or from the board, even if you feel that the complaint against you is ill-founded, or the matter is trivial, or that the rule you are accused of violating is unfair.  Condominium managers and boards have a duty to enforce condominium rules, to respond to complaints, and to persist until the matter is resolved.  It is always in an owner’s best interest to acknowledge and answer a communication from the property manager or from the board.  If you do not respond then the board has no way of knowing your perspective on the matter.

Instead of ignoring a letter do the following:

1. Respond in writing.  Acknowledge receipt of the letter.  If the complaint is based on a misunderstanding or on false information, explain.  (“Fluffy was with me at the cottage during the week in question. Hence the barking must have come from another unit.”)  If the complaint is legitimate, explain how you will address it.  (“In the future, I will limit my trumpet playing to between the hours of 4 and 5 p.m.”)
    
2. Respond promptly, but if the letter has upset you (“How dare anyone object to my holiday decorations!”) wait until you have relaxed enough to write a calm letter.  If you have a friend whom you feel has good judgment, ask him or her to read over the letter before you send it.
    
3.  If you have a conversation with the manager or a board member about the contents of the letter, document this as well.  Soon after the conversation, summarize the main points  in writing and send it to the person you spoke with.  Ask if he or she has anything to add or notices any errors or misunderstandings.
    
4. Maintain a paper trail.  Keep copies of letters and emails about the issue.  If the matter goes further – say to arbitration – it is important to have some record of communication.  Memories fade and managers can be moved to other properties.  Above all, you will want to be able to show an arbitrator or judge that you acted responsibly and took reasonable steps to resolve the conflict.
    
5. Get legal advice, especially if the matter does not seem resolved with your written reply to the initial letter.  It is important to seek advice from a lawyer who has experience with condominium matters.  Don’t ask your cousin the criminal lawyer or one of the in-house lawyers at your workplace.  Paying for good advice early in the process might save you a lot of money later on, should the conflict not resolve easily.

For the most part, disputes between condominium residents, or between unit owners and boards, do not simply fade away.  The early stages of a conflict are a precious time and the first moves made toward resolving a conflict can greatly influence the later stages. Don’t give up your chance to shape the outcome of a dispute by ignoring it in the early stages.




An edited version of this post was published on the "Condo Business" website.

Condo Law Digest – September 2013

Green v. York Condominium Corporation No. 834 and ThyssenKrupp Elevator (Canada) Ltd. 2013 ONSC 5004 (CanLII)
Decision Date: July 29, 2013
http://canlii.ca/t/g01g5

One evening in August 2005 Ms Green, a 72 year old resident of YCC 834, entered the elevator on the 16th floor intending to meet visitors in the lobby.  The elevator descended and stopped but the door did not open.  There had been very heavy rain for the past two days and, although Ms Green did not know it, many problems with the elevators.  When the doors failed to open she banged on them for help, and then used the emergency telephone inside the elevator to call the condominium gatehouse.  The person who answered said that he would send help.  After “a long period of time” without assistance of any kind, the elevator door opened a small ways (described by Ms Green as “five or six inches” at her examination-for-discovery and one to one-and-a-half feet at trial) and she tried to exit the elevator sideways.  As she did so the elevator moved again and propelled her out onto the lobby floor.  She slid across the floor and hit a pillar, injuring her head and shoulder.  Her visitors took her to the hospital where she was found to have a broken shoulder.

Ms Green made a separate agreement to settle her claim against YCC 834; the issue for this trial was whether ThyssenKrupp Elevator bore any liability for Ms Green’s injuries.  Her counsel argued that the company had failed in its duty of care under the Occupier’s Liability Act.  Justice O’Marra dismissed the claim based on the following reasons: 1) ThyssenKrupp is not an “occupier” under the Act but an independent contractor; 2) There was no evidence of negligence on their part, and no connections made between their actions and Ms Green’s injuries; and 3) Ms Green was “the author of her own misfortune” because she left a place of safety (i.e. the stuck elevator).

Comment:  It is surprising to me that a stuck elevator would be considered a “place of safety.”

673830 Ontario Limited v. MTCC 673, 2013 ONSC 5218 (CanLII)
Decision Date: August 16, 2013
http://canlii.ca/t/g053b

In May 2011 at MTCC’s annual general meeting unit owners were told that the corporation would receive a payment from the City of Toronto because of an earlier expropriation of common elements land by the TTC, and that this payment would cover the cost of urgently needed roof repairs.  In August the corporation received a payment of about $750,000.  In September the applicant made an offer to purchase one of the building’s units, conditional upon receiving and approving the corporation’s Status Certificate.  The Certificate stated that the Board anticipated that the reserve fund would be adequate in the current fiscal year for the expected cost of major repairs. In November the Board issued a special assessment to unit owners for $1,000,000 for the cost of roof repairs; this was cancelled when it was determined that the roof replacement cost could be lowered.  In February 2012 the Board held a special meeting to explain that the payment from the TTC would cover the expected cost of roof repairs.  Certain unit owners wished to be paid their share of the monies directly (rather than have them applied to the roof repairs) and so the Board issued a second Special Assessment in the exact amount of the TTC payment.  (Whether a unit owner elected to have his share of the TTC payment applied directly to the roof repair, or to pay the assessment and then receive a share of the payment, there would be no net change to the owner’s finances.)

The Applicant demanded a share of the TTC payment.  It argued that it was not informed in the Status Certificate, either about the pending roof repairs or about the anticipated payment from the TTC, and so should be exempt from both Special Assessments.  The Board argued that the Applicant should not profit from the TTC payment without contributing to roof repairs, and that the second Special Assessment was issued for “administrative purposes” only.  The Judge found that the Status Certificate was accurate when it said that the reserve fund would be adequate to cover the cost of anticipated repairs and that the Applicant had not been treated differently from other unit owners.  The application was dismissed.

Comment: Sometimes a Special Assessment is not a Special Assessment.

Condo Law Digest – August 2013

York Condominium Corporation No. 345 v. Qi, 2013 ONSC 4592 (CanLII)
Decision Date: July 8, 2013

In January 2006 Mr. Qi, a unit owner at YCC 345, defaulted in the payment of common expenses when his cheque was returned NSF.  This prompted a lien on his unit.  The original default of around $500 increased with the addition of interest (at 12% per annum), $25/month service fee, and legal fees.  In Spring 2012 YCC 345 successfully brought a motion for summary judgment, and by that time the debt had ballooned to about $33,000, and the costs for the summary judgment motion brought it to over $46,000.  Mr. Qi, who was not represented at the time of the motion, retained counsel who appealed the summary judgment and asked for a costs assessment.

Counsel for YCC 345 argued that the corporation should recover its full legal costs, as provided for in the Condominium Act and in YCC 345’s Declaration.  Justice Quigley disagreed.  Although the Condominium Act creates a framework for governance, “the directors of condominium corporations are counted upon to act with prudence and reasonable good judgment.” He found that costs should be assessed on a partial indemnity basis, and his reasons include 1) the legal costs were “immensely disproportionate” to the arrears of common expenses; 2) YCC 345 could have taken steps to reduce the conflict; 3) Mr. Qi had offered to settle the matter in 2009, and if reasonable efforts had been made to find a solution, the greater part of the legal expenses would never have been incurred.

Comment:  Another judgment stressing that legal fees and related costs must be reasonable.  Condominium corporations cannot expect that any and all costs will be passed on to defaulting unit owners.

Condo Law Digest – July 2013

Davis v. Peel Condominium Corporation No. 22, 2013 ONSC 3367 (CanLII)
Decision Date: June 7, 2013

As readers will probably know, condo board members may be removed from a board before the end of their term if more than half of all unit owners vote to remove them.  However, according to the Condominium Act, owners are not eligible to vote if, at the time of the meeting, any contributions payable with respect to their units have been in arrears for more than 30 days.  A group of owners at PCC 22 requested a meeting with the intention of removing the board.  At the meeting, held in October 2012, the lawyer representing the corporation ruled that 12 proxy votes were ineligible due to unpaid accounts, relying on records supplied by the property management company.  The group that had requested the meeting brought their own lawyer.  She objected to the first lawyer’s appointment as chair of the meeting (on the grounds that the person who appointed him was not authorized to do so) and was herself elected chair by a majority of those present.  Based on updated information, she ruled that the 12 proxy votes were indeed eligible and the board was voted out.

Ms Davis, a unit owner, brought an application alleging that the second lawyer had acted in bad faith and had allowed “ballots in the box that should not have been in there.”  The judge rejected the application.  He reviewed the information that the second lawyer had used to accept the proxies and ruled that three had been incorrectly allowed.  Yet given the margin of victory in favour of removing the directors, these incorrectly accepted proxies did not make a difference to the outcome of vote.

Comment: An accusation of bad faith is serious; persons are presumed to act in good faith unless proven otherwise.  (See the Supreme Court of Canada ruling in Blair v. Consolidated Enfield Corp.)

Taipaleenmaki v. M.T.C.C. 1053, 2013 HRTO 1100
Decision Date: June 20, 2013

In December 2010, Ms Taipaleenmaki, a unit owner, was asked to remove a Christmas plaque from her door.  She filed an application with the HRTO alleging discrimination on the basis of creed.  The application was settled at mediation one year later.  In the current application Ms Taipaleenmaki alleges a pattern of harassment by the Board that is a reprisal (or threat of reprisal) for the earlier complaint.  She submits that the Board has refused to meet with her on a number of occasions to discuss a wide variety of issues (including a new non-discrimination policy, the Privacy Act, a monthly maintenance fee increase, window washing, and the Veterinarians Act of Ontario, to name a few), that the president of the Board ignored her questions at condominium meetings, and that several of her postings to the condominium’s website were removed.

The Adjudicator dismissed the application as having no reasonable prospect of success. Ms Taipaleenmaki provided no evidence that the Board’s actions constituted a reprisal or attempt at reprisal.  Although the Board declined to meet with her, they suggested that a Committee meeting or Town Hall meeting would be a more appropriate forum for her concerns.  When Ms Taipaleenmaki’s posts were removed from the condo’s website, a letter from the Board’s lawyer advised her that these posts were defamatory and asked her to abide by the rules for posting.  While there are a number of outstanding disagreements between Ms Taipaleenmaki and the Board, and she feels aggrieved, the HRTO cannot deal with general allegations of unfairness.

Comment: Disagreements in themselves are not necessarily evidence of human rights violations.

Condo Law Digest - June 2013

York Condominium Corporation No. 62 v. Superior Energy Management, 2013 ONSC 2615
Decision Date:  May 6, 2013

In May 2008 a representative of the property manager for YCC 62 entered into a fixed-price contract with Superior Energy Mgm’t for the supply of natural gas.  The property manager had not been authorized to do this and the Board of Directors never ratified the contract.  (Condominium corporations cannot contract unless there is a resolution of the Board.)  In July 2009, and then several times over the next few months, a representative of the property manager contacted Superior at the Board’s request, taking the position that the contract was not valid.  Superior did not respond to any of these attempts at communication, nor to a demand letter written by the Board’s counsel in November 2010.  In Sept 2012 the Board issued an application in the court.

Counsel for both parties agreed that the hearing should be limited to the question of limitations, with reference to sections 4 & 5 of the Limitations Act.  Counsel for YCC 62 argued that the 2-year limitations period should begin in November 2010, when the demand letter was sent.  The judge disagreed and dismissed the application. He found that the limitations period began, at the latest, in fall 2009, when the property manager wrote to Superior, taking the position that the contract was not valid.

Comment: Act promptly if you have concerns about the validity of a contract.


Judge v. Baywood Homes, 2013 HRTO 727
Decision Date: May 1, 2013

In early 2009 Mr. Judge and his wife decided to move out of their home and into a condominium.  They met with the sales staff of Baywood Homes, who told them that, if they purchased a unit, they would be given two  parking spots: one in front of the building and one farther away.  Mr. Judge was keen to have a parking spot in front of the building because of a number of health problems, including severe chronic pulmonary disease and a bad back.  Although Mr. Judge mentioned his bad back to the sales staff, he did not tell them about his other health problems, nor make a connection between them and his desire for a parking spot in front of the building. Mr. Judge did not add a provision about the parking spot to the Agreement of Purchase and Sale. The Judges took possession of their unit in July. When the parking lot was completed and marked in September, they found that both parking spots were a good distance from the front door.  Their counsel sent a letter to the vendor’s counsel, requesting a parking spot next to the building, but without mentioning Mr. Judge’s disabilities. The vendor refused.  Mr. Judge filed an application with the Ontario Human Rights Tribunal, alleging discrimination with respect to housing on the basis of disability.

The Adjudicator dismissed the allegation.  While he was satisfied that Mr. Judge had a disability, Mr. Judge failed to make his disability known to Baywood Homes.  Because Mr. Judge did not do this, he did not trigger the vendor’s duty to accommodate.  While the Adjudicator was sympathetic to the Judges’ feeling that the vendor had failed to fulfill an oral promise, he found that he had no jurisdiction over the matter.

Comment: The HRTO and the courts have repeatedly found that persons seeking accommodation must makes their needs known, and it is this notice that triggers accommodation.

"Bad Faith" - What it Means for Condo Board Members

 My earlier post on Mediation and Bad Faith Bargaining is one of the most-read on this site, so when a couple of recent legal decisions relevant for condominiums invoked "bad faith," I knew I had to write about it again.

Section 37 (1) of the Condominium Act specifies that every director and officer shall act “in good faith.”  What does this mean and how might it apply?  “Bad faith” is a slippery concept and is difficult to define precisely.  Basically, a person acts in bad faith when he or she intentionally infringes upon another’s rights, or intentionally fails to honour legal or contractual obligations.  The role of “intention” is key.  Acting in bad faith is different from failing to understand that you have obligations or being mistaken about them.

“Bad faith” is more than an abstract legal issue, as a number of condo board members have found out to their cost.  In two recent decisions judges have held condo board members personally responsible for court costs because they failed to act in good faith.  A look at these cases helps clarify condo board members’ legal responsibilities, as well as their obligations to unit owners.

The first case (Boily vs. Carleton Condominium Corporation 145) began innocently enough, with modifications to a courtyard.  The Board took the position that the changes were “simple repairs” and so required approval of a simple majority (50%) of unit owners.  A group of owners took a different view when they saw the proposed changes.  To them, the modifications looked like “substantial changes” that would require the approval of 2/3 of the owners, and so they attempted to organize a special owners’ meeting to present their concerns to the Board.  The special meeting would be held at the same time as the meeting the Board had already scheduled to vote on the courtyard modifications.

Here is when the Board’s shenanigans began: They refused to recognize that the owners’ had the correct number of signatures to requisition the meeting, and they initially refused to hand over the list of registered owners.  They did not move from their position that the approval of 50% of owners would be enough for the changes to go through, and advised that demolition would begin the day after the meeting.  The group of owners who opposed the changes sought an injunction to stop the demolition.  This was granted by a judge on June 22, 2011, with a promise to decide on the rest of the application on June 29, 2011.

It would seem that cooler heads prevailed after the injunction was granted.  The Board and the group of owners, together with their lawyers, reached an agreement, formalized in “Minutes of Settlement.”  The Board agreed not to proceed with the modifications unless they received the approval of 2/3 of the owners.

But the story does not end here.  When the Board failed to receive the 2/3 majority that it needed, they took the position that the “Minutes of Settlement” was not binding, and that they would wait for the judge’s decision on June 29.  The group of owners brought a motion to enforce the Minutes of Settlement, which the judge granted.  He also decided that the costs incurred to enforce the settlement ($13 560) were to be paid by the board members personally because they had acted in bad faith.  The two main factors in his decision were the Board’s actions regarding the special meeting (their refusal to recognize its legitimacy and their delay in providing the list of owners) and their attempt to wriggle out of the agreement that their own solicitor had negotiated on their behalf.

The second case (Middlesex Condominium Corporation 232 vs. Owners) is similar to the first.  Again, problems arose out of proposed repairs to the condominium – repairs that everyone agreed were necessary.  The Board had decided on a repair plan that would cost $750 000 and require the corporation to borrow $600 000.  A group of owners asked to see the relevant documents, to have time to study them, to post notices about the proposed repairs, and to have the Board suspend negotiations with their chosen contractors.  While the Board’s lawyer provided supervised access to the documents, the other requests were denied.  At the Annual General Meeting, the Board’s bylaw to authorize the $600 000 loan was defeated.  Then the owners held a specially requisitioned meeting where a new board was voted in.

Can you guess what happened next?  The old Board refused to recognize the legitimacy of the new Board.  In an attempt to get around the inconvenient fact that they had been voted out, the old Board filed an injunction with the court to have an administrator appointed.  The judge refused.  He said that the owners’ attempts to get a Board more responsive to their concerns was “entirely understandable and reasonable,” and that the injunction was brought with the sole purpose of preventing the owners from exercising their rights.  Because the application for the injunction was “tenuous and without merit,” he found the five members of the old Board personally responsible for $15 000 in costs.

What are the lessons here?  Probably the members of both Boards (Carleton 145 and Middlesex 232) thought they were doing the right thing and acting in the best interests of owners.  But this is not the point.  Condo Boards serve at the behest of owners.  Acting without the support of owners, or (worse) attempting legal maneuvers to thwart the will of owners, will not be looked upon favourably by the courts.  Board members must understand that, if they appeal to the courts without a legal basis for their actions they may be held personally responsible for costs if their actions be unsuccessful.  Obtaining reliable legal advice is absolutely crucial, as is keeping an open mind.  Any group of people that work together can develop a tendency to group-think, such that it is difficult to see the flaws in a plan that the group has adopted.  Being “certain” that you are doing the right thing is not enough.  And acting on that feeling of certainty, despite owners’ clear lack of support, is a very bad idea.



A slightly different version of the article appeared in the April 2013 issue of Condo Business magazine.

Condo Law Digest – May 2013

Welcome to the first of what I intend to be a monthly feature - a digest of some condo law cases from the previous month or so.

Harvey v. Elgin Condominium Corporation No. 3, 2013 ONSC 1273
Decision Date:  March 4, 2013

Each unit in this townhouse complex has a garage with a rooftop deck.  Several unit owners complained of water leakage in and around the decks.  The corporation commissioned an engineer’s report which detailed extensive structural flaws in the design of the decks and the need for repair. Mr. Harvey, one of the unit owners, charged that the repairs were not necessary in the first place, that they constituted “substantial changes” (and so required approval by 2/3 of the unit owners), and finally that the special assessments levied against owners to pay for the repairs were “oppressive”.  He sought to have the work stopped and the levies returned, and he sought punitive damages for the harm allegedly done to his credit rating when the corporation placed a lien on his unit to enforce the levy. Mr. Harvey was not represented at the trial.

Justice Leach dismissed Mr. Harvey’s action and his claim for punitive damages.  He found that the board’s decision to repair all of the decks had been well-founded.  The repairs did not constitute substantial changes, but rather fell within the definition of remedial work under s. 97(1) of the Condominium Act.  He rejected Mr. Harvey’s request for an oppression remedy, noting that the meanings of “oppressive,” “unfair” and “prejudicial” in the legal context differ from their ordinary language meanings. (Justice Leach referred here to Walia Properties Ltd. v. York Condominium Corporation No. 478).  He did not make any decision regarding costs.

Comment: Owners are well-advised to consult with a lawyer before commencing any action against a condominium corporation.



Kong v. Toronto Standard Condominium Corporation No. 1959, 2013 HRTO 687
Decision Date: April 24, 2013

On August 31, 2011 Ms. Kong and the corporation reached an agreement with respect to an application with the Human Rights Tribunal of Ontario.  The corporation agreed to caulk and seal the outside of the window of Ms. Kong’s suite, and to reimburse her for up to $3500 for the cost of repairs and other changes to her unit to improve air quality.  Ms. Kong filed an Application for Contravention of Settlement, charging that the window repairs had not been done to her satisfaction because she continued to be bothered by the presence of second-hand smoke in her unit. Furthermore, she had not been reimbursed for the repairs to her unit.  The corporation argued that no timeline for reimbursement had been set out in the original agreement.

The Adjudicator dismissed the Application for Contravention of Settlement, but directed the corporation to reimburse Ms. Kong immediately.  Although no timetable for reimbursement was specified, a standard of reasonableness was implied. The Adjudicator found that the corporation had fulfilled the agreement by caulking and sealing the window.  The written settlement did not assure or guarantee that the presence of all second-hand smoke would be eliminated.

Investigations Gone Wrong!

What do these situations have in common:

• Sally, one of your employees, accuses her co-worker Bob of sexual harassment.
• A warehouse inventory reveals that supplies are missing.  You review footage from the security camera, and it looks like Mike has been removing company property without permission.
• Jessica and her boss Mary never hit it off.  Now Jessica comes to you in tears, with a doctor’s note, requesting a leave of absence for stress.  She attributes her ill-health to Mary’s persistent harassment.

In each situation, the employer must undertake an investigation, and bungling the investigation could have serious legal and likely financial consequences.

A couple of recent decisions highlight the need for a fair investigation carried out by a neutral party.  (Please note that I am not a lawyer and none of this is intended as legal advice.)

Here are some things to keep in mind:

You must inform the respondent (i.e. the person who is accused of harassment, etc.) of the accusations against him or her.

In Elgert vs. Home Hardware Stores, Elgert was accused of sexual harassment by a young woman he supervised.  The investigator (more about him later) interviewed the alleged victim and some of her associates, and on that basis, fired Elgert, without ever telling Elgert what he was accused of doing.  Instead, the investigator repeatedly told Elgert, “You know what you did.”  Elgert was escorted off the premises and not allowed to return to collect his belongings.

If the investigator had done a little more digging, he might have found that the complainant (the woman who made the accusation against Elgert) had been heard to say that she would “get even” with him after he gave her a negative performance review and moved her to a work area away from a young man in whom she had a romantic interest.  I can’t provide every detail of Home Hardware’s bungling of this case, but suffice it to say that an Alberta jury awarded Elgert two years’ pay in lieu of notice and substantial damages.


After informing the respondent, you must give him or her a chance to tell their side of the story.

Home Hardware is not the only employer who failed to realize that there might be another side to what looked like a clear case.  Allied, a maintenance company, terminated five employees after a surveillance video seemed to show the men removing cans of soda from a vending machine on a client’s property by reaching up into the dispenser.  Allied argued that its policy of zero tolerance for theft justified the firings. 

However at the hearing before the Labour Relations Board of Quebec a representative of the soda company testified that the machine in question was known to be faulty and that cans of soda would sometimes get stuck in the dispenser or not be released at all.  Moreover, the amount of money in the machine corresponded pretty closely to the cost of the missing cans.  The Labour Relations Board overturned the terminations.  No word yet on damages for the employees.

Hat tip:  I first read about this case in a blog post by Diana Theophilopoulos who is a lawyer with Stikeman Elliot in Montreal. 

It is not enough that the investigator is a neutral party.  The investigator must also be perceived as being neutral.

Back to Elgert vs. Home Hardware Stores:  The executive who was given the task of investigating the complaint against Elgert had no training in investigating sexual harassment complaints.  What’s worse, he turned out to be an old friend of the complainant’s father. 

Even if the executive were a thoroughly trained and highly experienced investigator of such claims, he should not have been selected for the job.  Many reasonable people would argue that, as an old friend of the complainant’s father, it would be difficult for him to remain neutral.  This is not to say that such a relationship would inevitably mean that the investigator was biased.  It is enough that the relationship raises a reasonable doubt about his neutrality.  In other words, it doesn’t pass the “smell test.” 

Think carefully about the investigator’s mandate.  Is this primarily a legal issue, or is the organization’s reputation also at stake?

You may have read about Mike Rice, the university men’s basketball coach at Rutgers who was filmed behaving in an abusive manner towards the young men on the team.  It turns out that Rice had been investigated for abusive behaviour before the video surfaced.  But the investigators’ mandate had been to discover whether Rice perpetrated a “hostile work environment.”  (The answer was no, largely because student athletes are not “employees”).  The investigation focused on a narrow, legalistic question, rather than on wider issues of whether Rice’s conduct made him appropriate as a representative of the university and a suitable role model for young athletes.  Rutgers has had legal costs in getting out of the mess; more importantly, its reputation has suffered.

The main lesson for employers:  Investigations are serious matters.  Personal reputations are at stake and the stress level – even for those not directly involved – is likely to be high.  If an investigation is warranted, do it properly to avoid future legal hassles and costs.

Related Posts:

Bill 168 – Investigating Complaints under your Policy

Workplace Sexual Harassment: A Problem for Management 

Bill 168: A Recent Arbitration Decision

Note:  I offer investigations of complaints related to workplace harassment, bullying, sexual harassment, and other matters covered under bill 168.  See my website for more information, or contact me directly to discuss the situation in your workplace.

Review of Who Gets What: Fair Compensation after Tragedy and Financial Upheaval by Kenneth R. Feinberg

Money is the medium of exchange, and it is the means by which victims in the civil justice system are made “whole.”  Even those who everyday speak of the “value” of injuries and cases (including lawyers, mediators, arbitrators and adjustors) must pause sometimes and find this strange.  Pain and loss seem incommensurable such that any monetary “value” put on them can only be arbitrary.  And yet how else might victims be made whole, if not with money?

Kenneth Feinberg has probably had more opportunities to ponder these questions than any of us.  He has had a remarkable career as an arbitrator in the aftermath of terrible and large-scale crises.  In 1984 he was appointed special master of the settlement that ended the class action suit of 250,000 Vietnam veterans against the manufacturers of the defoliant Agent Orange.  Years later he acted as head of the September 11th Victim Compensation Fund and was the target of considerable anger and frustration, when, as was certainly inevitable, there was disagreement over whom should be compensated and what compensation would be fair.  Either of these positions would have given Feinberg a abundance of experience and material for reflection.  Yet these two positions do not exhaust his experience.  He also managed the Hokie Spirit Memorial Fund (for victims of the mass shooting at Virginia Tech in 2007); he was appointed by Treasury Secretary Timothy Geithner to determine executive pay for companies that benefited from the Troubled Asset Relief Program (TARP); and he administered BP’s Gulf Coast Claims Fund in the aftermath of the 2010 Deepwater Horizon explosion and oil spill.

In Who Gets What Feinberg tells us how he came to be seen as the go-to person for resolving complex public legal disputes.  Then he reflects on his major appointments: The legal framework in which he worked and how that framework constrained him, how he arrived at decisions, and what he learned from each assignment.  (I have not read his earlier book, What is Life Worth? devoted to his tenure as special master of the September 11th Fund).  Although Feinberg has no formal training in alternative dispute resolution, his methods will be familiar to those who do.  He values his neutrality and the public perception of that neutrality.  A former aid to Senator Edward Kennedy, Feinberg was appointed to the September 11th Fund by the Bush administration, and then to the TARP assignment and the Gulf Coast Fund by the Obama administration.  He stresses the importance of listening and of making disputants feel heard.  In each assignment, Feinberg made considerable efforts to ensure that anyone who would be effected by his decisions had an opportunity to meet with him and plead their case. And when disputants are reluctant to settle their claims, Feinberg knows the issues well enough to be effective reality tester.  (He asks the lawyer of a retiring CEO if he wants his client “dragged before Congress to justify his salary as he departs?” when the lawyer has balked at accepting Feinberg’s recommendations.)  Feinberg also recognizes, as do all good mediators, that money also has symbolic value and that financial compensation is about more than a number of dollars.  This lesson is impressed upon him a number of times in his career, whether he is dealing with relatively poor Vietnam war veterans, or with wealthy Wall Street Executives (who, not surprisingly, give him his biggest headaches.)

Although Feinberg tells us something of his early life and career, I found that gained little sense of his personality though the book.  He writes well and clearly, if with little pizzazz.  Feinberg has had a unique and fascinating career as a mediator and arbitrator, and I think that anyone interested in public conflict or in alternative dispute resolution, or even in recent American history, will find the book of interest.

What is “constructive dismissal”?

Can you quit a job, and yet still be fired?  Can an employer fire employees even though they seem to have left the job of their own free will?  These questions are not riddles or zen koans, but refer instead to one of the trickiest concepts in employment law: “constructive dismissal.”

“Constructive dismissal” sounds like it might be a good thing – sort of like “constructive criticism.”  The reality is different.  “Constructive dismissal” may have occurred in the following scenarios:

Susan is employed as a sales manager in downtown Toronto.  Her boss tells her that, due to changing priorities in the company, she will have to re-locate to Inuvik.  Rather than make the move, Susan quits.

Bob runs one of the departments at Acme Co., and has twenty people reporting to him.  After a corporate reorganization, Bob is demoted, his responsibilities greatly diminished, and he is asked to take a 50% pay cut.  Bob quits, deciding to try his luck on the job market instead of accepting the new circumstances.

In both of these cases, the employer has unilaterally changed the terms of employment so greatly that the original employment contract seems to have been violated.  When she was hired, Susan was never told that her job could involve relocation.  Bob was hired into a managerial position and it was never indicated that his responsibilities and salary could be reduced.

“Constructive dismissal” may also be a possibility in the following scenario:

Jane is a receptionist in a downtown office.  Her supervisor, Sally, is very demanding and impatient.  If Jane makes the slightest error, Sally yells at her, even if there are other people around.  Jane is good at her job, but she gets so nervous when Sally is around that she makes errors.  Jane dislikes conflict and the situation is starting to get to her.  The stress is affecting her health.  She has tried to speak with the Human Resources Department, but they said that they couldn’t do anything.  It seems that Sally has a history of this kind of behaviour.  Rather than confront Sally and stand up for herself, Jane quits.

In each of these cases, I have said that constructive dismissal may be a possibility.  This is an important issue because it affects severance pay.  An employee who quits is not usually entitled to severance pay.  But an employee who is dismissed (or constructively dismissed) may be entitled to severance pay. 

I am not a lawyer and this blog is not intended as legal advice.  Constructive dismissal is a very tricky area.  If you think that you may be in a situation where constructive dismissal is a possibility, please get legal advice before taking any action.  You can contact the Employment Standards Information Centre, or to get advice about your specific situation, contact an employment lawyer. 

If you are an employer, please consult with a lawyer about your obligations under the Employment Standards Act before thinking creatively about how to “encourage” employees to move along.  Fulfilling your obligations under the law might prove costly, but not as expensive as losing in court.

“Just War” and Targeted Assassinations (Part Two)

In my previous post I wrote about the U.S. program of targeted assassinations against terrorists and the “just war” tradition.  I focused on jus ad bellum.  These are the conditions that must be met before a country has a moral case to declare war.  In this post, I’ll discuss jus in bello – moral restraints on the way war is fought.

First, a war must not be fought in such a way that it is a greater evil than the evil it is intended to remedy.  (Remember that a “just war” is one that is fought in order to promote good or avoid evil.)  So the harm inflicted by military operations must be both necessary and proportionate to the ends sought.  There is a moral difference between targeting a daycare centre and targeting a munitions factory.  It would be difficult to make a case that demolishing a daycare centre was necessary for victory in war, while demolishing a munitions factory might well help bring a quicker end to an armed conflict.

Second, non-combatants should not be intentionally attacked.

One complication arises right away:  How to draw the line between “combatant” and “non-combatant”?  According to a New York Times article about the U.S. targeted assassination program, when calculating civilian deaths caused by the program, all military-age males in a strike zone are counted as “combatants.” The reasoning is that, “people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good.”

There is a further complication:  If  non-combatants are harmed as a foreseeable but unavoidable “side effect” of some proportionate and necessary military action, then, according to the “just war” tradition, the harm is morally permissible.  Philosophers in the “just war” tradition call this the “doctrine of double effect.”

For example, a leader decides that bombing a munitions factory is both a necessary and proportionate step towards military victory.  However the munitions factory is next to a daycare centre, and there is a risk that the bombs will strike the daycare centre as well as (or instead of) the factory.  The leader does not intend to harm anyone at the daycare centre, yet he forsees that this might be a possibility.  Although the leader must try to minimize the risk of harm to non-combatants (say, by bombing the factory at night when the daycare centre is likely to be empty), he is not morally obligated to spare the factory because of the risk to the daycare centre.

The “doctrine of double effect” is controversial.  Philosophers have argued whether the distinction between “intended” and “unintended, but foreseeable” actions really makes much sense.

The “just war” tradition does not provide a “formula” for getting clear answers on the morality of armed conflict.  It is best approached as a set of considerations for thinking through the morality of particular decisions and strategies.  Again, I leave it to readers to decide whether the U.S. program of targeted assassinations meets the criteria for “just war,” and even whether the criteria are themselves morally defensible.

“Just War” and Targeted Assassinations (Part One)

I just read a fascinating article in the New York Times:  Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.  The article recounts how U.S. President Obama has placed himself at the top of a secret process to designate terrorists for kill or capture.  The President approves of every name on the “kill list” and is said to be determined to limit the extent of the secret program, and to make sure that the fight against Al Qaeda is aligned with American values.  That such a program involves a number of difficult legal and moral issues goes without saying.  For example, the killings are often carried out by drone strikes and as a result innocent bystanders have also been killed.

The Times article refers to Obama’s reliance on “the ‘just war’ theories of Christian philosophers” and it occurred to me that perhaps not everyone is familiar with these doctrines.  I thought it might be useful to say something here about the “just war” tradition, since it remains one of the bases of international law.

With the exception of pacifist cultures that eschew violence, every culture has ways of thinking about the morality of war and observes some conception of “warrior’s honour.”  This is the idea that, even in war, some things must not be done.  The “just war” doctrine sums up the ways in which western Christian tradition has thought about the moral issues arising from war.  (Originally, these restrictions concerned only what Christians could do to other Christians.  Non-Christians were given protection a few centuries later.)  The “just war” tradition stands in contrast to the “political realist” point of view, according to which war is an instrument of foreign policy and its use is restrained only by prudence, not by morality.  The concept of “just war” is also different from what we might call the doctrine of “holy war”- the idea that attacking others is justified in the name of spreading some “faith,” whether that is a religious faith or a political ideology.

The “just war” tradition divides the moral questions about war into two groups:  Jus ad bellum, having to do with the reasons for going to war, and jus in bello, concerning conduct during war.  The targeted assassination program brings up both kinds of questions.  I’ll discuss jus ad bellum in this post and jus in bello in my next post.

Thomas Aquinas (1225-1274) formulated three requirements for the declaration of a just war.  Each is necessary, and taken together they constitute a justification for going to war.

1. Those who command the war must have the lawful authority to do so.  (There cannot be “private” wars.)
    
2. The war must have a just cause.  The enemy must deserve to have war waged upon it because of some wrong it has inflicted.
    
3. Those waging war must intend to promote good or avoid evil.  (War must not be fought for the sake of vengeance or self-interest.)

Does the U.S. targeted assassinated program meet these requirements?  I’ll leave it to my readers to think about that.

Next time:  Moral restraints on conduct during war.

Cases that should have been Mediated: (3) The Sisters Upstairs and the New Hardwood Floors

Every now and then I hear about a conflict that wasn’t mediated but should have been.  Mediation would have saved the participants time, money and aggravation.  In this case, you do not even have to accept my judgement that the conflict should have been mediated.  Three Lord Justices of the England and Wales Court of Appeal stated that the dispute could have been resolved thorough mediation, without recourse to the legal system, for a fraction of the £140,134 (roughly $224,400 Cdn) that the disputants eventually spent.

The setting is “Eaton Mansions,” a tony block of flats in London, England.  The suit was brought by Mr. and Mrs. Faidi, who own and occupied Flat 6.  Sometime before 2006, the defendant, Elliot Corporation, acquired the lease for Flat 8, directly above the Faidis.  The new owners applied for and were given permission to carry out renovations, including removing the radiators, tearing up the wall-to-wall carpeting, putting a new radiant heating system in the floor, and installing new hardwood flooring.  They went through all of the proper procedures and got permission before doing the renovations.  In August 2010 the flat was leased to a couple with three daughters, aged 14, 12, and 5.

Sometime after the family moved in upstairs the Faidis brought a suit against the Elliot Corporation, charging that the day-to-day activities of their new neighbours caused noise and disturbed them.  They would be spared this disturbance, the claim argued, if the floors were covered by wall-to-wall carpets.  Indeed, each lease specifies that the floors (with the exception of the kitchen and bathroom) should be covered with carpet and underlay.  The defendant argued that when the renovation plans were approved the regulation about wall-to-wall carpeting became moot.  What would be the point of installing new hardwood floors, only to have them obscured by carpets?  Besides, the new heating system would not work effectively if the floors were carpeted.

Judge Freeland, who heard the original case, dismissed the Faidis’ claim.  He relied on expert testimony that the noise insulation installed when the new floors were constructed exceeded the minimum required by the building code.  The judge even went to the trouble of visiting Eaton Mansions to see the floor for himself.  The three judges who heard the appeal (Lord Justices Ward, Lloyd, and Jackson) concurred, finding that it would be “futile and absurd” to go to the expense of laying hardwood floors if they were destined to be covered up by carpets.  (You can read the full text of their judgment here.)

Litigation is adversarial by nature; outcomes are usually “all or nothing.”  Robert Pearce, the lawyer who presented the arguments for the Faidis’ appeal, proposed that a “moderate” amount of carpeting in flat 8 (say, in high traffic areas) would have absorbed some of the noise yet still allowed the residents to enjoy their new floors and benefit from the heating system.  The justices agreed that this would have been a sensible solution; however it was not one that the courts could impose.  The judges stressed that this outcome (strategically placed carpets) could easily have been achieved through mediation.  Justice Ward said it best:  “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skillfully applied by a trained mediator. Give and take is often better than all or nothing.”

Ironically, the Faidis no longer live in flat 6; their son lives there now.  And the family upstairs has also moved on.

Reproduced above:  The Daughters of Edward Darley Boit by John Singer Sargent (1882), currently in the Museum of Fine Arts, Boston.  Image from Wikimedia Commons.

More on Confidentiality in Mediation

Confidentiality is a basic principle of mediation.  But it seems that it is also one that mediators have to be vigilant about protecting.

Earlier this week I was fortunate to attend a talk at the ADR Institute of Ontario by David Bristow, a very respected lawyer, mediator and arbitrator.  Mr. Bristow told us about some recent important new cases with implications for ADR practitioners, and there was a lively discussion afterwards.  One of the cases he discussed, Hand v. the Walnut Valley Sailing Club, Kansas, caught my imagination

Mr. Hand had been a member of the Sailing Club for about 20 years, when the club made some changes to a storage area where sailboats and other equipment was kept.  Mr. Hand protested against these changes, saying that they were in violation of the Americans with Disabilities Act.  When the management of the Sailing Club refused to act on his protest, Mr. Hand wrote a letter to Governor Parkinson.  Learning of this letter, the management of the Club cancelled his membership; Mr. Hand’s response was to sue under the ADA.  The lawyers for the Club filed a motion that Mr. Hand’s claim be dismissed, on the ground that 1) he is not disabled; and 2) the Kansas laws protecting whistle-blowers apply only to employees.  The presiding judge, Sam A. Crow, agreed, and the case was dismissed.

A few months later, Mr. Hand visited the club on two occasions.  (I believe that he was the guest of a member).  The Club’s lawyers wrote to Mr. Hand’s lawyers, demanding that Mr. Hand not enter club premises.  Shortly after, Mr. Hand visited the Club again and refused to leave when he was asked to.  The Club filed a request with the court for a restraining order against Mr. Hand.  The motion was denied.

At some point in the dispute, the parties were ordered to mandatory mediation.  Within hours of the mediation session, Mr. Hand had sent a blow-by-blow account to all members of the Club, plus assorted friends, via email.  He revealed the amount of money the Club’s management offered him to settle the case, his own response to the offer, the number of lawyers representing the Club, what their fees might amount to, and what the mediator said and did.  In short, he revealed basically everything that happened in the course of the mediation.

The judge (Mr. Sam A. Crow, again) was not amused, to say the least.  He dismissed Mr. Hand’s entire action as a sanction for violating the confidentiality of the mediation process.  Although the case is not binding on the courts of Canada, Judge Crow’s reasons for dismissing the case may be relevant for confidential proceedings anywhere.  (The text of the decision may be found here.)  Briefly, the judge found that Mr. Hand’s revelations were highly prejudicial, interfered greatly with the judicial process, and that the leak of confidential information was done knowingly and willingly.  All of these factors lead him to sanction Mr. Hand as seriously as he did.

The case of Hand v. the Walnut Valley Sailing Club is thought-provoking for many reasons.  On the face of it, the relative triviality of the issues makes it precisely the kind of case that should be kept out of the court system.  Yet Mr. Hand clearly wanted a public vindication for himself and a public reckoning for the Club’s management.  In that respect, he was not a good candidate for mediation.  Could the mediator have done more to impress upon him that effective mediation requires confidentiality, and that keeping mum would be in his interest?  Did Mr. Hand’s lawyers warn him about the possible consequences of breaching confidentiality?  We have no way of knowing.

The Kansas case, despite its relatively low stakes and lack of global significance, provides a vivid illustration of how mediation can go wrong if the parties aren’t fully committed to the process and to respecting confidentiality.

Should Judges Interview Children?

In some jurisdictions, judges deciding child custody cases make it a point to interview the children involved. The thinking behind the practice is that children should have a forum to make their views and preferences known, especially in matters that are going to affect them profoundly. A recent article in Lawyer’s Weekly discusses a speech made by Alf Mamo, a London, Ontario family lawyer, in which he urged judges to interview children aged twelve and older in the course of deciding custody and access.

I am not convinced that judges should interview children as a matter of routine. I was very struck by the experience of Judge Harvey Brownstone, recounted in his book Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. When he first came to the bench, Judge Brownstone interviewed children regularly to find out their views on which parent they would like to live with, and so on He stopped because in every case, the child told him something like, “I want my parents to get back together and I want things to go back to the way they were.” (By the way, I’d highly recommend Tug of War to anyone with children going through a divorce, or to anyone interesting in learning more about family law in Canada.)

The case against judges interviewing young children seems pretty clear. As anyone who has had dealings with young children can confirm, talking to them and finding out what they want is not always straightforward. It can take a lot of skill and patience to find out a child’s true wishes, and this is even when the child herself knows what she wants! Talking to children about sensitive matters is tricky, and few judges have been trained to do it. In addition, children are likely to find meeting the formally dressed judge in his or her chambers to be stressful and even scary. The child probably understands that this individual has a great deal of power over her family’s future, and may feel significant pressure to say the “right” thing. And no matter what the outcome, the child may feel guilty when one of her parents is disappointed.

The case against judges interviewing older children is less straight-forward, but I think that similar considerations apply. A recent study by the Australian Institute of Family Studies is interesting here. Researchers interviewed children aged 12 to 18 whose parents had separated after the 2006 reforms in family law. They found that while about two thirds of the teenagers wanted a say in who they lived with, fully one third did not. They simply did not want to be put in the position of choosing between their parents.

There should be a way for those children who desire it, young and old, to have a voice in decisions that will affect them. But there are more effective ways than having a judge interview them. A specially trained social worker or psychologist might be involved. Some mediators will interview children as part of working out a parenting plan. Let’s not forget the practical considerations. Judges’ time is extremely expensive, and everyone agrees that the family court system is over-loaded as it is. The same article discussing Mamo’s speech quotes Justice Jennifer Mackinnon who says that judges often have less than eight minutes “per side” of a case to read and prepare for a motion, and 15 minutes “per side” to prepare for a settlement conference. With such constraints on their time, does it really make sense to give judges yet another task?