Ontario Condo Law Blog : Toronto Condominium Lawyer & Attorney : Gardiner Miller Arnold Law Firm : Ontario, Ottawa, Hamilton, Kitchener

For a short month filled with Olympic excitement (Yay Canada!), there was still plenty of great condo-related stuff in the blogosphere in February. 

Businesses should learn from 2010 Olympics surveillance camera debate -- Winnipeg privacy lawyer Brian Bowman emphasises the importance of having appropriate policies in place to manage the data recorded by surveillance cameras. If your condo has surveillance cameras, you need to implement proper written policies.

Association Driving You Nuts? – Take Out a Creepy Newspaper Advertisement -- Roger Wood of Arizona law firm Carpenter Hazlewood blogs about the slings and arrows hurled at HOA/condo boards and their professionals and offers some constructive suggestions to the malcontents who give “barbarians at the gate” a bad name.

Would a Condo and HOA Board Member Draft Solve Our Problems? -- Donna Berger debates condo conscription.    She also offers some important negotiation tips for community association members in Association Negotiations 101!

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The Ontario Human Rights Tribunal has become an increasingly popular venue for frustrated condo unit owners to bring their grievances against condo boards and property managers. This is thanks to the low cost to file a case, simple procedure, ability to self-represent and obtain free legal advice and help. Most such cases, however, are not made in response to discrimination where a unit owner’s human rights are violated. Instead, most cases brought by unit owners are complaints relating to bad service, poor treatment, insults or rudeness by the board or manager.

While rudeness and insults to unit owners are never be acceptable, the Human Rights Tribunal is quite properly throwing out cases where the bad behaviour does not amount to legal discrimination or actual  violation of human rights. The February 2010 decision of the Human Rights Tribunal in the case of Iourtchak v. York Condominium Corporation No. 201 serves as a good example.

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Anyone still trying to circumvent Ontario’s anti-smoking laws by operating as a “private club” should consider this recent advice from our Court of Appeal: Don’t bother.

In Kennedy v. Leeds, Grenville and Lanark District Health Unit, 2009 ONCA 685 (CanLII), the court upheld convictions against the operator of a Smith Falls sports bar who tried to operate the place as a private club. “Members” paid monthly dues of $4.00 and submitted application forms saying that they didn’t mind second-hand smoke. The “club” was reported as having more than 500 members.

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Most problems facing condominium corporations are either created or made more complicated by the simple fact that owners or directors (sometimes both) lack basic knowledge about the rights and responsibilities of the various stakeholders in the condo community.

This obstacle can be partly overcome in a number of ways. Here are four:

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Sections 132 and 134(2) of our Condominium Act make it mandatory for condo corporations and unit owners to mediate many types of disputes before proceeding to arbitration or commencing litigation. Among the disputes that must be mediated are disagreements over the declaration, by-laws or rules.

Despite the fact that mediation is mandatory in declaration, by-law and rule cases, this step is often by-passed where the parties don't agree on the selection of the mediator, as per section 132(1)(b) of the Condo Act.  This is a shame since the case will then proceed directly to arbitration and, in some instances, to court. The cost, complexity and level of animosity between the parties all increase sharply as the dispute progresses through the various stages. Early resolution  is almost always preferable.

In cases where mediation actually does take place, the likelihood of the dispute being resolved successfully depends heavily on a number of factors such as the skill of the mediator and counsel, the preparation and goodwill of the parties and, quite importantly, the ability of the parties to really listen to each other. Without proper preparation and anticipation of the likely concerns of the opposing party, mediation is often doomed to fail.

In a recent posting on the California HOA & Law Blog, attorney Beth Grimm shares her views on why mediation is the perfect way to solve condo disputes, why mediation often fails and what can be done to improve the odds of succeeding. Her comments are worth reading since they are perfectly applicable to condo disputes north of the 49th parallel.

Because mediation is mandatory for many condo disputes here in Ontario and since mediation represents an excellent opportunity to resolve disputes and heal divisions quickly and economically, board members, property managers and unit owners must equip themselves with the knowledge and tools to come to the mediation table to solve disputes.

Stay tuned in the coming weeks for more tips and insight into making the most of mediation.

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A property manager recently asked us how to tactfully approach a unit owner who shows poor hygiene habits (like hacking, sneezing and spitting) in and around the pool or sauna area. 

One simple approach we suggested was to print and display some of the handy posters distributed by local health units to promote "cover your cough" and proper hand washing techniques.

In these days of heightened pandemic alert, this type of information can help promote greater health awareness, reduce the spread of germs in common areas, minimize worker absenteeism and help us all breathe easier.

Posters, fact sheets and other flu resources are available from local health units and government agencies.  Click the links below to access them.

• City of Toronto
• Durham Region
• Peel Region
• Halton Region
• York Region
• City of Hamilton
• Province of Ontario
• Workplace Safety and Insurance Board

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One of the most common issues arising from people living in close quarters is the transmission of sound and noise.  At what point noise becomes a prohibited nuisance is one of the questions that plagues every condominium board and manager, and the answer varies from case to case and depends entirely on the circumstances.

It may sometimes be helpful to approach noise cases from a different angle.

Lawyer Dianne Saxe has written a short blog entry highlighting some of the issues in regulating noise through environmental law statutes and municipal by-laws.  The piece is of interest to condominium professionals since it is written from an environmental law perspective and cites evidence that "environmental noise" is harmful to health.  Links are provided to a number of resources that aren't often consulted in condo noise disputes.  

This short article may be of interest to anyone confronting the issue of noise and nuisance in condo settings or otherwise.  Read it here.

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During this spell of cold weather and economic turbulence, small problems can turn into large disputes very quickly, giving rise to division in the community and unnecessary costs.

Attorney Beth Grimm of the California Condo & HOA Law Blog shares some welcome wisdom on how condo directors can approach potential problems to find quick solutions.   She suggests a number of creative approaches to take and a few to avoid at all costs.

Read her entry here and warm yourself with the thought of California sunshine.

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One of the most prevalent but entirely avoidable sources of friction in any condominium community is poor communication between condominium corporations and their unit owners.

While many corporations have taken positive steps to open the channels of communication by posting paper notices on bulletin boards or circulating a newsletter, few are taking advantage of recent communication trends and the latest technology and tools. Those that are using websites and online tools, however, might find that the results are not as stellar as they had hoped.

Why is this?

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 The Government of Ontario recently introduced Bill 108 - "An Act respecting Apologies." 

According to the Attorney General's news release, the Apology Act would, if passed:

• Allow individuals and organizations, such as hospitals and other public institutions (or condo corproations), to apologize for an accident or wrongdoing without fear of the apology being used as evidence of liability in a civil lawsuit
• Help victims by acknowledging that harm has been done to them — an apology is often key to the healing process
• Promote accountability, transparency and patient safety by allowing open and frank discussions between patients and health care providers
• Enhance the affordability and speed of the justice system by fostering the resolution of civil disputes and shortening or avoiding litigation.

Several other provinces and states have passed similar legislation and there has been growing call for such a law to be introduced here so as to help minimize conflict and disputes.   Indeed, the bill has the support of the legal and medical professions:

“Apology legislation would help to foster better communication and more compassionate relations between potential litigants,” said Jamie Trimble, President of the Ontario Bar Association. “An apology should not be something that can be used in a lawsuit later on to establish the liability of another party, nor should it be able to be used by one party to prevent the ability of another to seek justice.”

We've all heard about long and drawn-out lawsuits over disputes that reportedly could have been resolved at the very beginning with a simple apology.  Only time will tell whether apology laws have an appreciable effect on the number of disputes ending up in our courts or whether people begin to apologize more freely to each other.   We all hope that legislation like this is a step in the right direction towards creating a more civil society.

Update (July 17, 2009):   The Apology Act, 2009 was passed and came into force in April 2009.  See here for full text.

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