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

In case you spent January at the gym or fulfilling other resolutions for the new decade, here is our mini-digest of noteworthy condo-related posts from the blogosphere last month.

Enjoy the Family Day long weekend!   

Records Retention: Going Paperless through E-Archives -- Paper is so passé! Marilyn Perez-Martinez of the Florida Condo & HOA Legal Blog describes some of the critical considerations in devising an electronic archive process for storing a condo’s records.  The key is in preparing a sound plan.

A Building Component does not become Common Area just because it was placed or built on the Common Area -- California HOA attorney David Swedelson blogs on a recent appellate case that sounds strikingly similar to our Court of Appeal’s ruling in Wentworth Condo Corp. 198 v. McMahon.   

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November was a busy month for condo professionals in the Greater Toronto Area. The Annual Condo Conference was a great hit, as was ACMO’s pub night and monthly educational luncheon.

Here are some of the best condo-related posts from the blogosphere last month. Click the bolded titles to view the entries.

Buyers hit with big bills for surprise adjustments - Bob Aaron describes the despicable practice of a  condo developer that saddles new unit purchasers with charges of up to $11K as an adjustment for increases in a levy charged by municipalities but never actually incurred or paid by the developer. Buyer beware.

The Essential Ingredient in Effective Management of Community Associations - Lawyer Tyler Berding describes the players, their perspectives and a number of sensible tips for minimizing disputes in community associations.

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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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Are you kicking yourself over a negotiation with a contractor, owner, or board member that could have gone a little better?   Are you looking to improve your bargaining skills?   

Check out The New Conflict Management: Strategies for Dealing with Tough Topics & Interpersonal Conflicts, a free report from Harvard Law School's Program on Negotiation.

Download that report and sign up for free tips by email here.

[Hat tip to Geoff Sharp at mediator blah...blah...]

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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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Condo managers and directors can find good news in the April 2008 Ontario Superior Court decision in MTCC 932 v. Lahrkamp, [2008] O.J. No. 3885.    This was a case brought by a condominium corporation against a “self-styled watchdog” unit owner who, while opposing lobby renovations, made repeated requests for records and then relentlessly pestered office staff when his requests were not filled as fully as he expected.

After finding that the owner’s conduct amounted to harassment, Justice Backhouse said:

The Condominium Act gives the respondent the right to examine the records of the corporation. He is not entitled to abuse that right by conducting a campaign by siege against the management office and directors. Banging on the management door on several occasions, blocking the door where the staff person was working and positioning his car to impede a director from proceeding are examples of conduct which are harassing. There are a number of remedies available to the respondent under the Condominium Act including calling a meeting of owners, removing directors and suing for oppression. Harassment is not one of them. When the respondent has been asked to desist by counsel, he has not done so. He has made it clear that short of a court order he will not stop his harassment. A staff person or director should not have to feel intimidated and harassed by the respondent.

Her Honour then granted an order: 

1. Restraining the unit owner from communicating with any employee of the management office or member of the board of directors, other than in writing;
2. Restraining the unit owner from entering or coming within 25 feet of the management office; and
3. Establishing a special procedure for future requests for records by this owner, and namely that such requests be made in writing, that only one request be made per record, and that payment for copies be made in advance.

Update (May 5, 2009):   Items 1 and 2 of the above order were set aside on appeal in this case.   See 2009 ONCA 362.

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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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