When Mr. Spender Met Ms. Saver

All Night, Photoplay, Jan. 1919.jpgWhen Harry met Sally it seemed like their differences complemented one another.

He loved it that she was responsible and “good with money.” Even though he made a decent salary, Harry seemed to live from paycheque-to-paycheque and never knew where his money went. Sally helped him get things under control. And Sally appreciated Harry’s spontaneity and sense of fun. If she mentioned a play she wanted to see, he’d buy the best seats for the next available performance.

Now it is ten years later and they are parents of twins. Harry and Sally’s differences threaten to undermine their relationship. Each is frustrated by the other. Sally is anxious that Harry’s free-spending ways mean that they won’t have enough savings for retirement. And Harry feels judged whenever he buys something. Every time they try to talk about money it ends in accusations and bad feelings. And now the hostility is affecting other areas of their relationship.

Can a saver and a spender find happiness together? Yes – as long as they are honest about their differences, communicate openly, and share some core values.

Both Harry and Sally have legitimate points-of-view. Sally is correct that if the couple doesn’t put enough money aside, they won’t meet their goals of a comfortable retirement and helping the twins through university. And Harry also has a point when he says that their quality of life would be compromised if they focused too narrowly on these future goals. Yet if they have this conversation every time they need to make a financial discussion, frustration will set in.

Instead of frequent, frustrating conversations, Harry and Sally need a plan. If they can agree on some common financial goals and priorities, then their different attitudes to money shouldn’t undermine their relationship. They need to sit down, do the math and work out some numbers. They have to figure out how much they need to set aside for expenses and savings, and how much is left for “free” spending. After that, they can revisit the numbers on an annual basis, or whenever their financial situation changes.

If Harry and Sally have been arguing about money for the better part of ten years, this conversation might be very difficult. In order for them to reach a durable understanding, they might need help from a neutral third party. A good financial advisor should be able to help them arrive at appropriate numbers, and also help them explore their different attitudes to finances.

I spoke about this scenario with Rona Birenbaum, founder of Caring for Clients, a fee only financial planning firm in Toronto. She told me that In working with couples over the past 25 years, she rarely sees 100% financial compatibility.  She believes that one of the unheralded benefits of financial planning when done right, is in how it addresses money value differences:  “Only by facing the differences head on, constructively, lovingly and with determination, can they be overcome. It’s an essential aspect of our work.”

The practical issue – figuring out proper amounts for saving and spending – is actually the easy part. Harry and Sally also need to have a frank conversation about money and what it means to each of them. Sally needs to tell Harry that, when he makes an extravagant purchase, she worries about their future. And Harry should explain to Sally that he feels infantilized when she quizzes him on his spending habits. If each can understand the impact of their behaviour on the other, it will help both stick to the plan.

About the image: By Uncredited – https://archive.org/stream/phojanjun16chic#page/n71/mode/2up, Public Domain, https://commons.wikimedia.org/w/index.php?curid=45115032

How to Give Embarrassing Feedback

Adolf Friedrich Erdmann von Menzel 049.jpg

My husband came home from the gym the other day and told me that his trainer was briefly delayed. Apparently all employees had been called into a meeting to discuss a critical problem: How to tell a client that he smelled.

Giving sensitive feedback is never easy. When the message concerns intimately personal issues – bad breath, personal hygiene, unprofessional attire – it is even trickier.

As with other topics I’ve discussed, the internet offers rather indifferent advice. I found one expert who suggested an 11-step formula for imparting difficult feedback. To me, that sounds agonizing, not to mention how difficult it would be to remember each of the 11 steps. I don’t know who would find such a conversation more painful – the person imparting the information or the person on the receiving end.

You don’t need 11 steps. The key to giving difficult feedback well is to make doing so as painless as possible, both for yourself and for the other person. To do that, you have to give the message in a way that it will be readily understood. So don’t hint, don’t beat around the bush, and don’t draw out the conversation unnecessarily.

Try this instead:

Assume the person doesn’t know. “But how can he/she not know?” you will protest. “It is obvious to everyone else!” I can only reply that I’ve seen time after time that what seems readily apparent to outsiders can be opaque to ourselves. Unless the person’s embarrassing problem is the result of a medical condition, he is likely unaware of it.

Find a private place. Lower the risk of embarrassment by making sure the conversation won’t be interrupted.

Just say, “I have to tell you something” and then get right to the point. No small talk. Don’t ask the person how he thinks things are going, or if he feels he’s fitting in, etc.

Speak directly, but be kind. Again, don’t hint or make the person guess at what you mean. At the same time, don’t exaggerate or over-state things. Saying something like, “You have a noticeable body odor” is enough.

Be matter-of-fact and relaxed. If you are nervous or feel insecure, the person you’re speaking with will pick up on it and it may make him or her feel worse. Also, by being tense or dramatic, you give the issue excessive importance. Remember, the person you’re speaking with has personal hygiene issues, not a fatal disease.

Take responsibility. Don’t say that the issue is something that “came to your attention” or that you’ve “received complaints.” Don’t make the person feel worse by implying that he or she has been the subject of gossip.

If the person gets angry or defensive, stay calm yourself. As when responding to any angry person, let him or her speak as much as needed. Hear them out, then repeat back what they said. Resist the impulse to solve the problem or offer advice unless they ask you what to do. If you’re not sure what else to say, try: “I told you because if it was me, I would want to know.”

What to do next will depend very much on your relationship with the other person. Are you their boss, a colleague or a friend? If they ask for your help, offer practical advice suited to the issue in question. (More frequent changes of clothing? Stronger deodorant? A trip to the dentist?)

Finally, check your intentions. What is your motivation for confronting this person? Unless you sincerely want to help him or her, keep quiet.

About the image: By Adolph Menzel – The Yorck Project: 10.000 Meisterwerke der Malerei. DVD-ROM, 2002. ISBN 3936122202. Distributed by DIRECTMEDIA Publishing GmbH., Public Domain, https://commons.wikimedia.org/w/index.php?curid=155595

Condo Law Digest – June 2016

Norma Wexler v Carleton Condominium Corporation No. 28, SC-12-121278
Decision Date: December 18, 2015 & Costs Decision: February 19, 2016

Ms. Wexler owns a unit in CCC No. 28 which was occupied by her son at certain times from 2010 to 2012. In late 2009 the Corporation wrote to Ms. Wexler advising that there were pigeons nesting on the balcony, that the mess they caused was a health and safety hazard, and that the balcony must be cleaned and kept clean. Letters and emails went back and forth. Ms. Wexler finally cleaned the balcony in July 2010, but in doing so damaged surrounding balconies. She was also told that the netting she installed was inadequate. Finally, Ms. Wexler paid or was charged (it isn’t clear) $255 to have the balcony cleaned. In this small claims court action, she claims against the Corporation for $255 (reimbursement for the cleaning), as well as for $270 (her legal costs) and $2000 damages for “harassment.”

Justice Gouin dismissed the action. The Corporation has a duty to maintain the property and asking an owner to clean up is not harassment. In a later decision, he ordered Ms. Wexler to pay the Corporation $20,000 in legal costs. (The Corporation had sought $35,000).

Comment: I find this a sad case. No doubt Ms. Wexler was a difficult neighbor and a challenging presence in the courtroom. (She was not represented, and the judge said that her lack of preparation prolonged the trial.) While the Corporation has prevailed, they are still out $15,000. Bringing in a mediator in the early stages of this conflict (say, spring 2010) would likely have saved everyone time and aggravation. See my earlier blog post: Why to keep talking (even if there is “nothing to discuss”).

Wu v Carleton Condominium Corporation, 2016 CanLII 30096 (ON SCSM)
Decision Date: May 16, 2016

This is another costs decision from the Ottawa Small Claims Court involving an unrepresented plaintiff owner. Ms Wu had brought an action to compel the Corporation to produce certain documents, including owners’ email addresses. The action was unsuccessful, and the Corporation now seeks to recover its legal costs of over $21,000 on a full indemnity basis. Their grounds are: 1) the indemnity provision of the Corporation’s by-laws; and 2) the alleged unreasonable behaviour of the plaintiff. In support, the Corporation cites Justice Gouin’s decision in Wexler v Carleton CC No. 28 (summarized above).

Justice Whitehall awarded costs in the amount of $490. His reasons were: 1) The indemnity clause is “at best is ambiguous” and regardless the court retains discretion to award costs. 2) The Corporation defended the action because it did not wish to live with the precedent that an agreement to provide the documents would have entailed. This was the “act” that caused it to incur legal costs. 3) Ms Wu had an honest belief that she was entitled to the documents she sought, and “vigorous litigation in asserting one’s claim is no ground to penalize a party by awarding more than ordinary costs.”

Comment: Litigation is risky for everyone involved.

Decisions, Decisions, Decisions: Getting Things Done on Time

Clock out of service sign (4440585847)
This is the second in an occasional series on the psychology (and philosophy) of decision making. I’m interested in this topic because, as a mediator, one of the things I do is to help people make good decisions (or at least, to understand the implications of their decisions).

Most of us make a huge number of decisions each day. A few are momentous; most seem trivial at the time. And yet trivial decisions, made over and over, can have a great effect – good or bad.


Renovation Hell

A friend of mine is doing some renovations on her house. She started last the summer, and the contractor promised her that she’d be back in her home by November.

I spoke to her at the end of January. The renovations weren’t finished yet. And she told me that she wouldn’t likely be back in her home before March.

My friend and her contractor fell victim to the planning fallacy. The same strategy underlies why people decide to declare war, why they start law suits, and why they end up exhausted and frustrated at the end of the week.

The Planning Fallacy

Simply put, the planning fallacy is our tendency to be over-optimistic when thinking about future task completions. We over-estimate the likelihood of things going smoothly and underestimate the possibility of things going sideways.

To put it another way, when it comes to our time management, we come to believe to be true what we hope to be true. The root of the problem is that we are simply not very good at thinking through compound probabilities (that is, the likelihood of two independent events occurring.) We can imagine one factor that might make a plan overly optimistic. But we are less likely to imagine multiple factors getting in the way of success.

Whether it is students completing an assignment, or shoppers going through their Christmas lists: Time and time again, psychologists have found that people under-estimate how long things will take. Even when psychologists ask for a “worst case scenario,” it ends up being optimistic, compared with actual completion times.

The planning fallacy helps us understand why people make high-risk choices: they are overly (and unrealistically) optimistic about their chances of success.

Making it Relevant

There are a few things we can do to manage risk and reduce the impact of the planning fallacy.

The first is to be honest about your past performance. If preparing for the holidays typically takes you the better part of a month, you aren’t likely to finish more quickly this year.

Another tactic is to look for statistics or other sources of independent information. My friend could have tried to find out what her contractor’s “on time” record was.

Finally, seek advice from a neutral third party or someone who has done the same thing and succeeded or failed. Find out what their challenges were, and what things came up that they couldn’t anticipate. Ask what they might do differently, if they had the chance to do things over.


Daniel Khaneman, Thinking Fast and Slow, Doubleday, 2011.

About the image:

Large clock on concourse of Waterloo station, London, with no hands and ‘out of service’ sign on it (March 2010). This image was originally posted to Flickr by HowardLake at https://flickr.com/photos/53941041@N00/4440585847. It was reviewed on by the FlickreviewR robot and was confirmed to be licensed under the terms of the cc-by-sa-2.0.

Conflict in Non-Profits: New Article in “Leadership Lab”


Conflict in non-profits

Why Problems Percolate at Non-Profits” is my latest contribution to the Globe and Mail’s Leadership Lab series. I discuss why non-profit organizations are just as prone to conflict as regular businesses.

Catch up on my previous articles: “Don’t Blame Personality Differences for Workplace Conflict” and “What Managers Can Learn from Mediators.”

About the Image:

By M V Satheesh Kumar – M V Satheesh Kumar, CC0, https://commons.wikimedia.org/w/index.php?curid=32761993

Condo Law Digest – May 2016

Tumbling water and dripping icicles - geograph.org.uk - 698065Ryan v York Condominium Corporation No. 340, 2016 ONSC 2470
Decision Date: April 13, 2016

Mr. Ryan owns a unit in YCC 340. Since the corporation’s establishment in 1977 construction deficiencies have lead to intermittent water penetration problems, depending on the weather. Over the years various Boards have attempted to fix the problems. In spring 2010 a storm caused water damage in Mr. Ryan’s unit. Mr. Ryan informed the Board who hired a contractor to begin repairs. Over the next few years (until all work was finally completed in the fall of 2014) there followed more water damage, more contractors, mould growth in the unit, Mr. Ryan’s move from the premises to live at his family’s farm, interior and exterior repairs, and a special assessment to pay for the work needed.

In this action, Mr. Ryan requests about $79,000 in special damages, $150,000 in general damages for psychological distress, and a declaration that YCC 340 breached its maintenance and repair obligations under the Condominium Act and that its conduct amounted to oppression towards him. Justice Perell awarded Mr. Ryan about $69,000 in special damages but declined to make an award for general damages. He also dismissed the claim for an oppression remedy, saying that YCC 340’s conduct was “ineffective until recently” but not abusive or oppressive.

Comment: Justice Perell previously (Feb 2016) rejected YCC 340’s request that the matter be settled by mediation/arbitration, on the grounds that the core of the matter was the oppression claim.

York Region Condo. Corp. No. 922 v Frank Lu et al, 2016 ONSC 2565
Decision Date: April 15, 2016

Mr. Lu is the owner of a unit in YRCC No. 922. In January 2014 flooding was discovered in the basement of the unit. A few days later a contractor was permitted entry to investigate and provide a quote for repair work. About a month later, YRCC No. 922 contacted Mr. Lu’s counsel to request entry to the unit in order to do repairs. Mr. Lu refused permission to enter and continued to refuse or block a number of requests for entry for the next ten months. In November 2014 counsel for YRCC No. 922 informed Mr. Lu that if he didn’t allow the contractors to enter the unit and carry out repairs, they would commence a court application. Mr. Lu refused and this application is the result.

Justice Gilmore found that Mr. Lu’s reasons for refusing entry to his unit “defy logic” and granted YRCC No. 922 an order permitting them to inspect and carry out repairs to the unit. She also ordered Mr. Lu to pay legal costs in the amount of $12,000.

Comment: An owner can refuse entry to a condominium corporation’s contractors, but only on reasonable grounds.

Elena Balland v York Condominium Corporation No. 201, 2016 ONSC 2405
Decision Date: April 8, 2016

In December 2015 Ms Balland was ordered to pay $9344 ($9000 in legal costs and $344 for a plumber’s visit) to YCC No. 201. This is a successful appeal of that costs endorsement.

In May 2014 YCC No. 201 required access to Ms Balland’s bathroom to carry out plumbing repairs to a neighbour’s unit. Ms. Balland refused access, on the grounds that she had not received a satisfactory guarantee to cover damages. She had recently renovated the bathroom and was concerned that it might be marred. After counsel for YCC No. 21 got in touch, Ms Balland agreed to provide access at a time when she could be present. The inspection was carried out and the bathroom was (apparently) left in disarray, with a hole in the ceiling covered over with scotch tape. Lawyers’ letters went back and forth. YCC No. 201 scheduled a plumber to repair the damage on March 3, 2015, despite knowing that Ms Balland was not available on that date. When the plumber arrived he could not gain access. (This was the $344 in costs for a plumber’s visit.)

At the costs hearing, YCC No. 21 requested costs of just under $28,000 (full indemnity) or $19,500 (partial indemnity). The judge awarded $9000. The appeal judges found that the trial judge made an error in principle, as this amount was “wholly disproportionate” to the facts and circumstances of the case.

Comment: Among the reasons given, the appeal judges stated that the costs claimed by YCC No. 21 “result largely from the fact that [they] engaged in protracted litigation by commencing legal proceedings prematurely, using legal counsel to address daily practical issues that could and should have been dealt with by management, and thereafter, prolonging the proceeding by adding many unnecessary steps.”

Condo Law Digest – April 2016

Williamscot village notice board - geograph.org.uk - 435009
Welykyi v. Rouge Valley Co-operative Homes Inc., 2016 HRTO 299
Decision Date: March 4, 2016

This is a judgment on 10 applications to the HRTO against the same respondents (Rouge Valley Co-op and the Board of Directors.) The applicants are members of the Co-op, and some were Board members prior to April 2012. Between April and September 2012, someone wrote or posted 18 very nasty messages, referring to the applicants in terms related to disability, race, sex, gender identity, ancestry, age, and receipt of public assistance. These messages amounted to discrimination and harassment under Ontario’s Human Rights Code. The applicants alerted the police and brought the messages to the attention of the Board and the property manager. To make a long and rather sordid story short, the Board did very little to put an end to the harassment. Their efforts included fake security cameras (supposedly a deterrent) and vague notices (against “vandalism.”) They failed to show much concern about the situation and, in one instance, the President of the Board hinted that she knew who the culprit was.

The HRTO adjudicator found that, although the Board was not responsible for the “horrible” harassment, they failed to respond to it adequately. This “indifference” likely exacerbated the effect of the harassment. He ordered that the Board pay $3000 to each applicant, that all other members of the Co-op be informed of the decision, and that the Decision be posted within the Co-op for six months.

Comment: The community police officer, sensing ongoing conflict between current and former members of the Board, suggested mediation. While mediation may have helped resolve some underlying issues, mediation itself (without other measures) is not an appropriate response to anonymous harassment.

York Condominium Corporation No. 78 v Stein, 2016 ONSC 1837
Decision Date: March 16, 2016

Ms. Stein purchased a unit in YCC 78 in 2010. In spring 2014, YCC 78 received a complaint of alleged exterior water penetration in the unit. Upon investigation, it was found that Ms. Stein had been carrying on a project of unauthorized renovation, including material changes to the common elements. (The unit was completely gutted and had had no functioning kitchen or bathroom for 18 months. Ms. Stein had completely rewired the unit and made alterations to the plumbing as well.) In this application, YCC 78 seeks an order that Ms. Stein is in breach of the Condominium Act; access to the unit to do a full inspection; permission to restore the unit and common elements to original condition; and an order that the costs or losses they incurred be considered a common expense and recoverable from her unit.

Justice Diamond agreed that Ms. Stein was in breach of sections 98 and 117 of the Condominium Act, and granted the corporation access to her unit upon 48 hours notice for the purpose of inspection and restoration. He also allowed YCC 78’s costs to be recoverable from Ms. Stein’s unit, and that Ms. Stein pay YCC 78’s legal costs of $25,000 on a partial indemnity basis.

Comment: Ms. Stein had argued that YCC 78 was obliged to mediate their dispute before turning to litigation. Justice Diamond disagreed, saying that mediation is intended for “lesser disputes” or disagreements arising out of interpretation – not unilateral, unauthorized changes to common elements.

About the Image: Duncan Lilly [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

Condo Law Digest – March 2016

United Hotels Company of America Stock.jpegMetropolitan Toronto Condominium Corporation No. 673 v St. George Property Mgm’t Inc.
Decision Date: February 16, 2016

In 2013, the corporation was sued by an owner (673830 Ontario Ltd.) who demanded a share of the funds from an expropriation payment. The corporation had earmarked these funds for roof repairs. The corporation was successful, but 673830 Ontario Ltd was granted an appeal, arguing that the status certificate provided before purchase was misleading. (I wrote a summary of the original case in the Condo Law Digest of September 2013; the decision of the appeal was not reported.) The corporation’s fees and expenses came to just over $97 000.

In this action, the corporation moves for a summary judgment of $97 000 against St. George Property Mgm’t for breach of contract. They argue that the status certificate St. George provided to 673830 Ontario Ltd. was inaccurate, and that because of this, the corporation incurred costs. The status certificate did not mention the funds anticipated from the expropriation, the plan to replace the roof, nor anticipated costs of the necessary repairs. Justice Perell found that the status certificate was non-compliant and granted summary judgment.

Comment: Property management companies have a responsibility to ensure that status certificates are accurate and up-to-date.

Williams Estate v Carleton Condominium Corporation No.66, 2016 ONSC 786
Decision Date: Feb 2, 2016

Last fall the Williams Estate applied to amend their claim against CC No. 66 for water damage to the estate’s condominium unit. The application was successful and no costs were awarded to either party. (I wrote a summary of the original case in the Condo Law Digest of October 2015.) The corporation appealed unsuccessfully. In this decision, Justice Beaudoin awarded the Williams Estate costs of $70000. The estate had sought costs on a substantial indemnity basis and disbursements of about $9400 total.

Comment: One can only hope that the parties settle this matter before their legal costs balloon out of control.

About the image:

Not a status certificate, but a stock certificate. By Unknownhttps://www.stocklobster.com/4377.html, Public Domain, https://commons.wikimedia.org/w/index.php?curid=44298119

Decisions, Decisions, Decisions: Too Many Options

Gelato at the Della Palma parlour in Rome.jpg
This is the first of an occasional series on the psychology (and philosophy) of decision making. I’m interested in this topic because, as a mediator, one of the things I do is to help people make good decisions (or at least, to understand the implications of their decisions).

Most of us make a huge number of decisions each day. A few are momentous; most seem trivial at the time. And yet trivial decisions, made over and over, can take on huge significance.


Faced with two ice cream shops – one boasting 56 flavours and the other with less than a dozen – most of us would choose the first. Why risk not finding exactly the flavour we’re craving?

We tend to think it is a good idea to “keep our options open.” We’re often reluctant to take an action that would close off opportunities or give us fewer choices.

Yet keeping options open is sometimes exactly the wrong strategy. When we delay the moment of choice and keep options open for too long, we can cause ourselves unnecessary stress. Moreover, we can lose out by failing to commit.

All-Round Athlete or MVP?

Meet 12-year old Tim. He plays hockey on Saturday mornings, gets to school early on Thursdays to run on the  cross country team, and has soccer practice two nights a week. If Tim’s goal is to be active and have fun, no problem. But if Tim has dreams of playing minor league hockey one day, he might do better to drop cross-country or soccer so he can spend more time on hockey. And he’s even more likely to develop expert hockey skills if he concentrates exclusively on hockey.

The same thing applies in other aspects of our lives: Keep your options open by continuing to casually date a number of partners and you may miss the chance to deepen a relationship with any of them. Pursue a number of business ideas and you might be left without the resources to invest in that one really good idea.

Too Many Open Doors?

A psychological experiment illustrates our tendency to keep options open far too long. The experimenters developed a computer game where players had a choice of three different doors. Click on a door, you win a small amount of money. The payout of each door varied. As one door open, more appeared. Each player had a maximum of 100 clicks. The goal is to win as much money as possible by finding the highest paying doors. The difficult part was that if a player ignored a door for more than 12 clicks, that door disappeared, never to reveal its reward. Would it be better to keep clicking within one door, or track back to explore the doors that hadn’t yet been opened?

The experimenters found that players who rushed to keep as many doors open as possible earned less money than those who picked a door and stuck with it. What surprised me was that even some players who tried the game hundreds of times kept on with the same losing strategy. We’re so conditioned to keeping “doors open” that we don’t even notice the cost of doing it.

The Cost of Choice

When we keep options open we have more choices. But greater choice isn’t actually always beneficial. A large number of choices means more time weighing different  options. The more comparisons we have to make, the higher cognitive load. The result is stress, frustration, and fatigue.

When we have a number of options, we tend to evaluate them in terms of “missed opportunities.” We focus on what we might lose if we close a door. Yet we rarely think about what might happen if we dissipate our energy by leaving too many doors open.

A better strategy than FOMO (“Fear of Missing Out”) is to evaluate options according to their potential to help us reach a goal.  Tim might fear that dropping soccer will mean he never makes the school team. But if his goal is minor league hockey, then practicing soccer might actually be holding him back. He might be happier in the long run if he spends more of his time doing skating drills.

Making it Relevant

The results of the “door” experiment have some real-world implications. Think about how you spend your time. Do all of your leisure activities give you the same level of enjoyment? If you dropped one or more of the ones you enjoy less, would you have more time to spend on ones that give you more pleasure?

When choosing between options – or  helping others make choices – simplify the process. Start by eliminating some options from the beginning. For example, if there are 5 options, eliminate the worst two. Simply take them off the table, so there are three options to choose from.

Finally, to chose the options that will most likely allow you to achieve your goals, you must know what those goals are. So spend some time thinking about what is important to you. Where do you want to be one year from now? Ten years? Knowing the answer to these questions – or at least spending some time thinking about them – should help you decide which doors to close.


Dan Ariely, Predictably Irrational: The Hidden Forces that Shape our Decisions, Harper Perennial, 2008.

Barry Schwartz, The Paradox of Choice – Why More Is Less, Harper Perennial, 2004.

About the image:

Gelato at the Della Palma in Rome by Hwei Shan Lo – originally posted to Flickr as 20090820_2349, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=10208575

Condo Law Digest – February 2016

No Smoking - American Cancer Society's Great American Smoke OutToronto Standard Condominium Corporation No. 2032 v Boudair, et al., 2016 ONSC 509
Decision Date: Jan 22, 2016

Mr. Dong owns a unit in TSCC 2032 and he rented it to Ms Boudair and Mr. Badram beginning September 2015. The tenants agreed to follow TSCC 2032’s rules and in particular not to smoke in the unit. Shortly after they moved in, the Corporation began to receive complaints about the smell of tobacco smoke coming from the unit. The Corporation in turn informed Mr. Dong, who instructed his tenants not to smoke in the unit. In November counsel for the Corporation sent a demand letter to Dong, requesting compliance. Once Mr. Dong received copies of the actual complaints from the neighbouring units, he filed an Application for Early Termination with the Landlord and Tenant Board. The earliest available hearing date was not until February 2016; Mr. Dong was able to convince the tenants to vacate in January 2016.

In the action, TSCC 2032 seeks costs of nearly $33 000 on a substantial indemnity basis or $25 000 on a partial indemnity basis. Mr. Dong seeks an order requiring the tenants to pay his costs on substantial indemnity basis in the amount of $25 000, and in the alternative, asks that he not be ordered to pay the Corporation’s costs. The tenants requested that they not have to pay anyone. Dong argues that he acted in a reasonable manner and put a great deal of effort into convincing the tenants to move. He also argued that, had he received the supporting documentation from the Corporation earlier, he would have been better equipped to negotiate an earlier termination of the lease. In the end, Justice Diamond ordered that the tenants pay costs of $10 000 to the Corporation and $10 000 to Mr. Dong.

Comment: At one point, the tenants offered to move out if Mr. Dong gave them the funds to cover first and last month’s rent for a new place and their moving costs. While it is understandable that Mr. Dong would not want to reward his tenants for disregarding the no-smoking rule, this arrangement might have cost him less in the long run.

Wan v Lau, 2016 ONSC 127
Decision Date: January 7, 2015

Mr. Wan, a real estate agent, and Mr. Lau, a locksmith. both own units in a commercial condominium. In March 2011 Mr. Lau ran for election to the condominium’s Board. Before the Annual General Meeting he sought proxies from a number of fellow owners, including Mr. Huang. Mr. Huang signed his wife’s name on a proxy form and gave it to Mr. Lau. On the day of the meeting, not one but two proxies in the name of Mrs. Huang appeared. When Mr. Lau asked Mr. Huang what was going on, he affirmed that the signature looked like his wife’s, but said that it could not possibly be genuine, and declined to phone his wife in Hong Kong to find out what might have happened. Mr. Lau then sent an email to 14 recipients, saying that the suspicious proxy had originated from Mr. Wan’s real estate office. A couple of days later it emerged that the proxy was genuine after all: The Huangs’ son, another realtor in Mr. Wan’s office, obtained the proxy from his mother. Mr. Lau sent a follow-up email, explaining the situation and apologizing for his error.

In this action, Mr. Wan sues Mr. Lau for defamation. Justice Corbett found him not guilty by reason of qualified privilege. That is, Mr. Lau as a Director of the Corporation and as an owner, had an interest in communicating his concerns to management and to other Directors. There is no evidence he had any malice towards Mr. Wan.

Comment: Email communication is a delicate matter. While Mr. Lau claims that he intended his message to be private, one should always be aware that emails are easily shared and distribution may be wider than you anticipate.

About the image: By U.S. Air Force illustration by Airman 1st Class Brittany Perry [Public domain], via Wikimedia Commons