Unrepresented Parties in Mediation

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The other day a young man called to ask if I could mediate a dispute between him and a developer over the return of his deposit on a pre-construction condominium. He desperately needed the money back. When I asked if he had a lawyer, he told me in frustration that he was an engineer, and he felt he could get this resolved without a lawyer. My heart sank, as I realized there was little chance he could be successful without the help of a lawyer.

By the time a party in a dispute gets to the stage of a mediation, he or she will have experienced enough of the legal system to feel demoralized and extremely frustrated. No doubt their dignity will have taken a hit at some point. Many unrepresented litigants report having been treated poorly. The mediation process should not be a further affront. As the mediator, control the process to ensure that it is fair and respectful.

  1. The ADRIC Code of Conduct 3.4 states that, “the Mediator shall, where appropriate, advise unrepresented parties to obtain independent legal advice.” I always suggest that parties without a lawyer get legal advice, and I keep a list of lawyers whom I feel are both effective and good with people. Parties in mediation should know that it isn’t too late to work with a lawyer. You can also suggest that they contact the Law Society of Ontario Referral Service for a referral and a free half-hour consultation.
  2. If you have stereotypes about the kind of people who forgo legal help, forget them now. A recent Ontario survey found that over half of the people attempting to represent themselves in court had a university education.
  3. Make sure that unrepresented parties understand that they will be responsible for half of the cost of mediation, including the mediator’s fees and any fees for renting space. If a lawyer on the other side offers to hold the mediator in his or her office to save on costs, make sure that the unrepresented party is comfortable with this.
  4. I explain to unrepresented parties before the mediation that we will probably start off with a joint session and later move to separate rooms, and that I will be going between the rooms. Therefore they might end up spending a lot of time alone, and if they want, it is OK to bring a friend or support person.
  5. Unrepresented parties often see the mediation session as a hurdle to jump over so that they can get in front of a judge. One of the mediator’s challenges is to get them to take the process seriously and as a real chance to resolve their dispute.
  6. Some lawyers, facing an unrepresented party on the other side of the table, go out of their way to be patient and respectful. Others, unfortunately, will struggle to work with someone who lacks expert knowledge. If you find a lawyer cannot hide her irritation and impatience towards an unrepresented party, take her aside and give her an opportunity to vent. Then make it clear that you expect a professional demeanor.
  7. It can also help to contextualize a lawyer’s behaviour. I have found many parties in mediation, whether they have their own lawyer or not, become convinced that the other party’s lawyer “doesn’t like them” and this is why the case won’t settle. I try to help parties understand that the lawyer’s job is to advocate forcefully for his or her client. The lawyer’s personal feelings rarely enter into it.

I have met mediators who refuse to work with unrepresented parties. No doubt, it is more challenging to convene a fair process when one party is at a strong disadvantage. Yet unrepresented parties are not going away. Mediators, like other parts of the legal system, must adapt to the challenge.

“Pillars of Justice” by Edwina Sandys. Photo by author.

Myth of the “toxic” Manager

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At a recent presentation, someone asked me about “toxic” managers. You can see my response in this video.

Here’s what I didn’t have time to say:  I don’t like the term “toxic manager” or “toxic employee.” My work is all about helping people resolve their differences respectfully. Coming into a conflict with a mindset that one of the parties is “toxic” is simply not helpful.

More importantly, calling someone “toxic” puts the emphasis on individuals when the problem is usually organizational structure or culture. People in an organization are “toxic” only when they are allowed to be this way – when their behaviour is ignored, tolerated or (I hate to say this – but it can be true) encouraged.

So let’s stop calling people names and try instead to understand the underlying factors that contribute to disrespectful conduct.

(I say more about this in an old blog post on bullying.)

Condo Law Digest – October 2019

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Lin v. Brookfield Homes (Ontario) Limited, 2019 ONCA 706
http://canlii.ca/t/j2b5s
Decision Date: Sept 9, 2019

This appeal of a Superior Court decision hinges on what counts as a “material change” to a pre-construction condominium. Ms. Lin agreed to purchase a detached condominium unit from Brookfield Homes for about $1.6 million with a closing date in December 2017. Shortly before closing, Ms. Lin’s lawyer wrote to Brookfield advising that the planned parkette and entrance gates had not been constructed, and that in the event the intention was not to construct them, Ms. Lin would reserve the right to rescind the agreement and would seek return of her deposit (about $130,000). Brookfield’s lawyers replied that there would be no material changes to the condominium and that if Ms. Lin did not complete the transaction, Brookfield would terminate the agreement and keep Ms. Lin’s deposit.

Ms. Lin commenced a court application against Brookfield seeking return of her deposit. Brookfield counter-sued, seeking a declaration that Ms. Lin had breached the Agreement of Purchase and Sale, and seeking damages. (Brookflield sold the property in June 2018 for about $300,000 less than Ms. Lin had agreed to pay.) Justice Sachs found in favour of Brookfield and ordered a trial with regard to the quantum of damages over and above the forfeited deposit.

In this appeal, Ms. Lin claims that Justice Sachs erred by finding that the parkette and gates were “amenities” rather than essential features of the condominium. The appeal judges disagreed. They found that the parkette and gates were common elements of the condominium, and that in the Agreement Ms. Lin signed, it stated that failure to complete the common elements before the occupancy date would not be considered a failure to complete the unit.

Comment: According to the Toronto Real Estate Board, the average price of a detached home in Toronto hit its high point around the first quarter of 2017 (a few months after Ms. Lin purchased her unit), dropped sharply, and had levelled off by the third quarter of 2018 (when Brookfield sold the unit.)

About the image: New condo construction site in Toronto

Workplace Harassment v. Bullying

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At a recent question-and-answer, someone asked me about the difference between workplace “harassment” and “bullying.”

“Harassment” is conduct that is bothersome or unwelcome. It can be one single, very bad incident or a number of smaller, less significant acts. Shouting at someone is harassment, as is name-calling, cracking jokes at their expense, and making sexually suggestive remarks.

“Bullying” is simply prolonged harassment.

What No One tells you about Workplace Investigations

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There are some things about workplace investigations that no one seems to mention.

I talk about them in the video from a presentation I gave a few weeks ago.

 

Here is a quick  summary:

  1. When “workplace harassment” comes to mind our first thoughts might be of prominent men named in “me too” allegations. The reality is that few workplace harassers resemble Harvey Weinstein or R. Kelly. Granted, such characters are out there. But you’re more likely to come across the sales guy who throws temper tantrums, or the female manager who feels it is appropriate to comment on what other women are wearing.
  2. There is more bad management than workplace harassment. Yet this is cold comfort, as both will make good employees leave.
  3. Perhaps the biggest thing no one tell you: after an investigation, the folks involved will likely have to work together again. Employers need to have a plan in place to support them.

This presentation was a lot of fun, and I’ll be sharing more excerpts soon.

Want to learn more about workplace investigations? Check out another video about when to outsource an investigation. Read about my approach to investigations and how to repair relationships in the aftermath. You might also be interested in common pitfalls of investigations. Want to avoid harassment and investigations in the first place? Unfortunately,  training may not be the answer.

Condo Law Digest – September 2019

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Metropolitan Toronto Condominium Corporation No. 590 v. Registered Owners, 2019 ONSC 4484
http://canlii.ca/t/j1njp
Decision Date: July 25, 2019

MTCC No. 590 is a 20-storey condominium in downtown Toronto. The units on the top 4 floors have wood-burning fireplaces, and each fireplace has a chimney flue that eventually vents onto the roof. From 2013 to 2017 the Corporation obtained several engineering reports advising that the fireplaces were no longer safe to use. The fireplaces and chimney flues must be replaced, removed or decommissioned. The Board has not yet chosen a solution because of uncertainty over who is financially responsible.

MTCC No. 590 brought this action in December 2017, seeking to amend its Declaration to make the unit owners on the top 4 floors responsible for the cost of maintaining both their own fireplaces and the chimney flues. Owners of 9 of the fireplace units brought their own application, asking for a declaration that the chimney flues form part of the common elements of the building, and that MTCC No. 590 should bear the cost of repairing or replacing the chimney flues.

Justice Sanfilippo granted an Order to amend the Declaration and specify the chimney flues as exclusive use common elements, based on their nature and historic use. He reasoned that they are more like private balconies than like (for example) the vents and shafts forming part of the building’s HVAC system.

Comment: Each side in this dispute filed letters of opinion from condominium lawyers as part of the factual narrative, seeking to explain why they considered their applications to be necessary. Justice Sanfilippo found these letters inadmissible and disregarded them.

York Condominium No. 187 v. Sandhu, 2019 ONSC 4779
http://canlii.ca/t/j1z91
Decision Date: August 14, 2019

YCC No. 187 seeks a summary judgement against condominium unit owner Ms. Sandhu. Ms. Sandu had rented her unit to an individual who was in “constant conflict” with building management, sued the corporation for five million dollars, and when the claim failed, appealed the decision. The cost of these unsuccessful actions (around $86,000) were added to the common expenses of Ms. Sandu’s unit. When she did not pay, the corporation placed a lien on her unit. In this action YCC No. 187 has asked to be granted vacant possession of Ms. Sandu’s unit in order to sell the unit and recover the monies owning to them.

In what was clearly a difficult decision, Justice Bawden has ruled in favour of the corporation. (That is to say, an emotionally difficult rather than a legally difficult decision, as the Condominium Act is clear that unit owners are responsible for the financial consequences of their tenants’ actions.)

Comment: This is a very unfortunate case and a good illustration of the importance of seeking (and then following) legal advice. To his credit, counsel for the corporation advised Ms. Sandu early in the process of the danger that she would be ultimately responsible for the costs of her tenant’s legal actions.

About the image: [Apartment in Denmark by Alla Hetman, Unsplash]

Condo Law Digest – August 2019

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Brasseur v. York Condominium Corporation No. 50, 2019 ONSC 4043 (CanLII)
http://canlii.ca/t/j197k
Decision Date: July 4, 2019

Ms. Brasseur has owned a unit in YCC No. 50 since 1978. In 2009, after the exterior windows of the condominium were replaced, Ms. Brasseur noticed condensation problems which led to mould. Ms. Brasseur alleges that the corporation has breached its duty to maintain and repair the common elements, and that its actions were oppressive. YCC No. 50 claims that Ms Brasseur has breached her duty to keep her unit in good repair and that her “lifestyle” was the cause of the mould.

Justice Nakatsuru reviewed six years of back-and-forth between Ms. Brasseur and the corporation, including the evidence of a number of expert witnesses. He also considered and ultimately accepted a motion to admit fresh evidence. He ultimately decided that YCC No. 50 breached the Condominium Act because their response to the mould was not timely enough nor truly responsive enough. However their conduct did not amount to oppression because they did not delay deliberately. Justice Nakatsuru did not find that Ms. Brasseur’s lifestyle choices enhanced the risk of mould. In particular, her failure to follow a recommendation that she keep her windows open during the winter was not unreasonable.

Comment: Justice Nakatsuru noted that mistrust and antagonism between Ms. Brasseur’s son (who lived with her in the unit and communicated on her behalf) and the condo board president made resolution of the mould problem more difficult and expensive. Conflict costs!

Brief Notices

A follow-up to Ottawa-Carleton Standard Condominium Corporation No. 671 v. Friend (from the November 2013 Digest): The corporation sought and received a declaration that Mr. Friend’s conduct constitutes workplace harassment and a breach of the Condominium Act (for harassing, intimidating and physically assaulting the Directors and other residents.) Justice Kane ordered costs against him of over $14,000. You can read the full judgement at this link: http://canlii.ca/t/j197q.

Justice Nakatsuru has denied a motion to have Stuart Weinstein declared a vexatious litigant saying that, “Resort to this rule is not meant to be an easily accessible alternative to a pleadings motion or a motion for summary judgment.” Mr. Weinstein had sued a number of government entities, Humber College, the YMCA, and the Condominium Regulatory Authority of Ontario in a dispute over a condo manager course that he took. I posted a summary in the May 2019 edition of the Condo Law Digest.

A publication ban will remain in force in B.K. v YRSCC no. […], 2019 ONSC 3837. This is a dispute concerning a condominium with building deficiencies and flooding, a Board of Directors substantially reduced by resignations, attempts to replace the Board, and physical threats against the property manager and the former board president.

About the image: “Window” by Loren Kerns.

Mediation: Help for Self-represented parties

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The unfortunate reality is that unrepresented (self-represented) parties do not do well in the Canadian legal system. The Canadian courts are not designed for a DIY approach. Legal procedures are very complex and were never meant to accommodate non-experts.

A lot could be said about the wider societal trends and economic realities that compel so many people to show up in court without legal assistance. According to Statistics Canada, the number of unrepresented parties in Canada’s legal system is increasing. In Toronto close to 80% of litigants in family court are not represented by a lawyer, and in civil court (including personal injury, employment, and condominium matters), the number is 30-40%.

Dr. Julie MacFarlane leads the National Self-Represented Litigants Project (NSRLP) and has studied the issue extensively. She has found that the biggest challenge facing non-represented parties is unfamiliarity with legal procedure. This, combined with outsize expectations, leads parties who do not have the benefit of legal counsel to pursue their claims when they would likely to do better to settle them. I see both of these trends when I work with unrepresented parties. Many treat the mediation session as a hurdle to be mounted before they can appear before a judge. Unfortunately, they do not realize that mediation should be treated as an end in itself and may be their best chance for some kind of positive resolution.

Every year, some of those 30-40% of unrepresented litigants arrive for a mediation session with me. Sometimes they are plaintiffs in claims where the defendant is an insurance company. Sometimes they are condominium owners who are brought to mediation by their neighbours or by the condominium corporation. Almost without exception, the other party has legal counsel. I can’t speak for family mediators since I do not practice in that area. Here are some things that I would like unrepresented parties in civil mediation to know:

  1. Some people prepare for mediation and court by doing research in the form of reading case law. This is admirable, to be sure. However the danger is that, without a legal education, they do not understand the wider legal context in which the cases have been decided. Without this wider context it is very easy to misinterpret individual decisions. It can also be challenging to see the relevance of particular cases to your own situation.
  2. Even if a non-lawyer masters a specific area of law, he or she usually misses something that is equally important: an understanding of how lawyers think. Lawyers are advocates for their clients and their main concern is what is best for their client. Their role is not to ensure a fair outcome. (It is also not the mediator’s role to ensure a fair outcome. However a mediator does have to convene a fair process.)
  3. In order to give the best advice to their clients, lawyers consider what would happen if the case went to court. They weigh many factors, including damages and liability. “Damages” means the loss that the plaintiff has suffered, whether this is bodily harm (such as a broken leg caused by a car accident) or monetary loss (say, if a contract is not fulfilled.) “Liability” means (roughly) who is to blame, and to what degree. To convince a lawyer that you have a good case, you have to address both factors.
  4. The more evidence you can provide of damages and liability, the more likely you will be to convince a lawyer that her client should settle your claim. (If you a defendant, then the reverse applies: you need to provide evidence that you are not responsible for the other side’s damages.)
  5. If a lawyer believes that your case is weak, she will advise her client not to settle. If a lawyer does advise her client to make a monetary offer, it is because she believes that her client has some “exposure” or risk. This does not necessarily mean that she believes you could prevail in court. It might be enough that she believes you could get her client entangled in a court case.
  6. The mediator will ask both sides to provide a written document (a “brief”) outlining their position, and for each side to exchange this document with the other side. (I ask to receive this at least one week before the date of mediation.) When you receive the other side’s brief, study it carefully, as it will tell you where the other side perceives the weaknesses in your position.
  7. If the mediation fails, the next step is not necessarily a trial. Rather, it is likely that the represented party will move for a summary judgement. This means that the other party will ask a judge to rule that the claim has no reasonable chance of success and should be dismissed. According to Dr. MacFarlane’s research, a staggering 95% of these motions brought against unrepresented parties are successful.

To sum up: Mediation might be your best opportunity to settle your claim, so prepare. Bring your best evidence and arguments. Treat the mediation session as an end in itself and a real chance to resolve the dispute.

This may also be relevant: I’m in mediation. Why do I need a lawyer?

Condo Law Digest – July 2019

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Balmoral Developments Hilda Inc. v. Orillia 2019 ONSC 3292
http://canlii.ca/t/j0rlg
Decision Date: May 29, 2019

This is a motion for summary judgement in a long-running dispute between a developer and the City of Orillia. After Balmoral completed construction of stacked townhouses in 2011, Balmoral and the City got into a legal dispute regarding: 1) whether or not up to 7 residents could legally occupy each unit; 2) whether the project would be considered a boarding, lodging or rooming house under the City’s code; 3) whether the project was subject to barrier-free requirements under the Building Code. The resolution of these concrete issues hangs on an Application for Exception that Balmoral made in 2012. Ordinarily, such an application speeds things up for a developer. In this case, Balmoral charges that the city planner “sat on” the application for two years and refused to present the application to city council. In the meantime the City issued By-Law 2014-75, which imposed on Balmoral the condition that notice be given to prospective purchasers of the units that no more than four residents can legally occupy each unit.

Justice Mulligan found that the City acted in bad faith by imposing the conditions in the By-Law. In effect, they “carved in stone” the provisions sought by the planning staff. However he found that the barrier-free requirements imposed by the City were lawful.

Comment: Justice Mulligan indicated that he was prepared to continue as Trial Management Judge, indicating that litigation is probably not finished.

1552443 Ontario Inc. v. Nipissing Vacant Land Condominium Corporation No. 41, 2019 ONSC 3715
http://canlii.ca/t/j0zv8
Decision Date: June 14, 2019

The corporation was created in 2006 to manage and administer 32 units of vacant land in North Bay. The plaintiff originally owned all of the units. By 2012 the plaintiff had sold over one half of the units and was required to give up control of the Corporation. This did not happen until late 2017, resulting in acrimony between the plaintiff and the other owners. At the time of the hand-over, there was less than $100 in the Corporation’s operating and reserve accounts. The Corporation hired an independent professional to determine what the amount of the reserve fund should be.

After the owners assumed control of the Corporation, they registered a lien against the plaintiff’s units for payment of common expenses, and the plaintiff made a payment to cover the previous year’s expenses. In January 2018 all of the unit owners received a Notice of Special Assessment, with payment due the next month. The plaintiff refused to pay and so the Corporation issued Notices of Sale for the plaintiff’s units in May 2019. In this application, the plaintiff asks the court to find these Notices null and void.

The plaintiff made four arguments as to why the Notice of Special Assessment was invalid, misleading, and not levied in accordance with the by-laws of the Corporation. Justice Ellies did not find any of these arguments compelling and declined to find the Notices of Sale null and void.

Comment: Again, declining to pay common expense fees may result in legal trouble and expense.

About the image: The cottage of Stephen Leacock (arguably Orillia’s most famous resident.)

Condo Law Digest – June 2019

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Reddy v. 1945086 Ontario Inc., 2019 ONSC 2554
http://canlii.ca/t/j044g
Decision Date: April 29, 2019

The applicants are 605 people who entered into Agreements of Purchase and Sale with the defendants in 2016 to purchase units in the as-yet unbuilt Cosmos Towers. The Agreements contained a provision permitting certain types of early termination of the contracts. (These provisions are required by law.) One permitted reason for termination of the contract is the failure of the vendor to secure financing on satisfactory terms. The vendor must agree to “take all commercially reasonable steps within its power” to satisfy the early termination conditions. The Agreements also contained a Proviso that the vendor has the sole and absolute discretion regarding termination conditions. In 2018 the defendants informed the applicants that the Cosmos Towers projects had been cancelled because they couldn’t secure funding. All of the deposits made by the purchasers were refunded.

Justice Penny noted that the reasonableness and good faith of the defendants with regard to securing satisfactory financing were not in question. The applicants argue that 1) the defendants had no right to claim for themselves absolute discretion over the termination conditions in the Proviso; 2) that the termination was therefore a breach of contract; and 3) that they are entitled to damages. Justice Penny provided a number of arguments for why the correct interpretation of the Proviso was that the vendor did in fact have the right to terminate the project if they could not secure funding despite having taken all reasonable efforts. Therefore the termination was not a breach of contract and the applicants are not entitled to damages.

Comment: Justice Penny noted that such early termination conditions protect purchasers from being involved in projects that are insufficiently funded and at risk of failure.

About the image: Photo by Markus Schriebl. https://commons.wikimedia.org/wiki/File:Cosmos-Fohnsdorf.jpg#/media/File:Cosmos-Fohnsdorf.jpg