Condo Law Digest – February 2019

A redundant postbox - geograph.org.uk - 1121048.jpg

Walsh v. Badin, 2019 ONSC 689
Decision Date: January 28, 2019
http://canlii.ca/t/hx80t

The four plaintiffs are current or former directors of YCC 78. They have commenced an action against two owners for statements made in three anonymous letters distributed in 2016 and 2017. Relations within the corporation have been contentious for some time, with aggressive negative campaigns for Board positions, allegations of electoral fraud, and litigation. The defendants deny any involvement with the anonymous letters.

With this motion, the defendants ask the court to dismiss the action based on the anti-SLAPP provisions of the Courts of Justice Act (Sections 137.1 to 137.5). These provisions are meant to protect people who speak out about matters of public interest. Justice Nishikawa found that the subject of the letters – the internal workings of the condominium corporation – were not a matter of public interest. She also noted that it was “inconsistent” with the purposes of the anti-SLAPP provisions to deny writing the letters and at the same time to ask for protection against being sued for writing them. She dismissed the motion, but granted a second motion to strike portions of the Statement of Claim that were defamatory to one of the defendants.

Comment: Justice Nishikawa noted that it was “unfortunate that in a community such as the Condominium, the Board and residents have permitted relationships to deteriorate to the point that anonymous letter writing campaigns, threats, self-help and litigation are seen as an appropriate means of addressing disputes.”

Read about another ant-SLAPP case: Taft Management v Gentile in the October 2018 Condo Law Digest.

Tre Memovia Developments Ltd. v. 1491316 Ontario Inc., 2019 ONSC 4
Decision Date: January 18, 2019
http://canlii.ca/t/hx2pj

Tre Memovia is the former owner of 2055 and 2057 Danforth Avenue; the defendants own and operate a dry-cleaning business next door at 2061 Danforth Ave. In 2013 Tre Memovia commenced an action against the defendant; (I could not find the details of their claim). In this motion, Tre Memovia asks for an order allowing its expert access to the defendant’s property in order to conduct invasive environmental testing for the presence of chlorinated solvents. The defendants have declined to allow this inspection.

An Environmental Site Assessment done in 2012 identified the defendant’s dry cleaning business as a possible source of soil contamination. Tre Memovia had planned to build a 12-story condominium but had to delay development. (At some point Tre Memovia sold the land. Google Earth shows a recent building on the site, so I assume that the soil was decontaminated before construction went ahead.) In summer 2017 Tre Memovia retained a new engineering firm (AiMS) because the expert they had worked with previously retired. Unlike the first engineer who did not recommend further testing, AiMS proposed further, more intrusive testing after their site assessment in fall 2018.

After sifting through several years of investigation results, arguments, and counter-arguments, Master Short denied the motion. He found that further testing at this time would not be useful or probative in determining the source of the contaminants. If Tre Memovia wanted to do invasive testing, they had enough information to make the request in 2013. There are no compelling reasons to override the defendant’s property rights at this point.

Comment: Although there was a lot of technical detail on both sides of the argument, the Master’s decision came down to Laches – unreasonable delay.

About the image: A redundant postbox by Evelyn Simak, CC BY-SA 2.0, Link

Conflict Resolution Lessons from my Karate Training

I’m training for a black belt in Shotokan karate. It’s true – and these challenging martial arts lessons are not only making me physically and mentally stronger, but also sharpening my skills as a professional mediator.

Did you know there are striking parallels between karate techniques and (non-violent) conflict resolution? I’ll explain briefly:

Part of our time each karate class is spent performing self defense drills with a partner. Each person takes turns being the aggressor and the defender. When defending yourself, the natural tendency is to try to get away from your aggressor.

Yet you can almost always defend yourself more effectively by getting closer.

This is how it works in conflict resolution too.

We tend to distance ourselves from people with whom we’re in conflict. This is a mistake. The closer we can get to our aggressors – in order to understand their viewpoint and position – the better poised we are to successfully defend ourselves against them — and ultimately end the conflict on our terms.

Here are some ways to do this – outside of karate class:

  1. Ask questions. In particular, ask the other person why the subject of your conflict matters to them.
  2. Listen more than you talk. And when you listen, really listen. Don’t just wait for your turn to talk.
  3. Repeat back what the other person says to be sure that you really understand what they’re saying. This will also let the other person know that you’re listening and help them feel understood.
  4. Try to understand their perspective. Do you find the other person’s position completely absurd? It makes sense to them. Find out why.

About the image: At my brown belt graduation with Shihan Ricky Bonaparte of Northern Karate.

Condo Law Digest – May 2018

Wavy fence and a wall BW version.jpg

Omotayo v. Da Costa, 2018 ONSC 2187
Decision Date: March 29, 2018
http://canlii.ca/t/hrb84

The cases arises from a contentious board meeting of Metro Toronto Condominium Corporation No. 1292 in September 2011. Ms. Omotayo had recently been removed from her position as Chair and Mr. Da Costa had sent the Board a letter advising that he wished to resign as President. Nevertheless, both showed up at the meeting and began to argue with one another. Mr. Da Costa “lost it” (in his words) and struck Ms. Omotayo on the head with a chair. The police were called, and Mr. Da Costa was charged with three offenses. Ms. Omotayo made a claim against Mr. Da Costa and against MTCC 1292 for failing to protect her from the assault. Mr. Da Costa filed a cross-claim against MTCC 1292 for contribution and indemnity.

In this proceeding, MTCC 1292 has brought a claim for summary judgment to dismiss Ms. Omotayo’s claim. (Ms. Omotayo did not oppose the motion. She settled her claim with MTCC 1292 prior to this hearing. However Mr. Da Costa opposed the motion for summary judgment, and so the hearing went ahead.) Justice Nishikawa granted the motion for summary judgment, saying that MTCC No. 1292 did not breach a duty of care to Ms. Omotayo, as the corporation could reasonably expect board members to refrain from assaulting one another.

Comment: Costs of $6500 were payable by Mr. Da Costa to MTCC 1292. Here’s hoping that the current configuration of the Board manages to hold calmer meetings.

Toronto Standard Condominium Corporation No. 2256 v. Paluszkiewicz, 2018 ONSC 2329
Decision Date: April 12, 2018
http://canlii.ca/t/hrg2w

This is an appeal of an arbitration award. TSCC No. 2256 is a small condominium with four units. Mr. & Mrs. Paluszkiewicz were among the first owners. In October 2012 they delivered a renovation proposal with two preliminary drawings to the Board, and a month later they entered into a Section 98 Agreement to do the renovations. About one year later a new Board was convened. In March 2014 the Corporation notified the Paluszkiewiczs that their renovations did not comply with the Section 98 Agreement. Mediation failed, and in June 2015 the parties began arbitration.

The Paluszkiewiczs submitted that they had provided detailed construction drawings to the old Board in November 2012, and that the now-completed renovations matched these drawings. The Corporation argued that the meeting of Mr. Paluszkiewicz and the old Board to approve the drawings had not taken place. Gerry Caplan, the arbitrator, found in favour of the Paluszkiewiczs and ordered the Corporation to pay them $216,000 in costs.

In September 2017 the Corporation asked the arbitrator to set aside the award on the grounds that the Paluszkiewiczs had committed fraud. The Corporation produced a sworn affidavit from the old Board members stating that they did not discuss building plans with Mr. Paluszkiewicz. Mr. Caplan declined to set aside his award, and TSCC No. 2256 made this appeal. Justice Perell dismissed the application. Just because two parties have different memories of an event, he reasoned, it does not follow that one of the parties is lying or has committed fraud.

Comment: While no costs decision was issued for this appeal, that old warning against “throwing good money after bad” keeps running through my head.

Furr v. Duhamel, 2018 ONSC 1780
Decision Date: April 4, 2018
http://canlii.ca/t/hrbqm

This is a dispute between owners of a unit in “King’s Landing,” a townhouse development in Ottawa, and the Co-Tenancy Committee that manages shared property and expenses. (Just to be clear, the development is not a condominium corporation.) The main issue concerns the fence along the eastern boundary of the property. The applicants argue that the as-built fence and retaining wall are not included as shared property in the Co-Tenancy Agreement, and therefore maintenance of the fence is not a shared expense. In effect, by treating the fence as shared property, the Committee is favouring the owners whose property is adjacent to the fence (and who alone should bear the expense of repairing it.) They also allege bad faith on the part of the Committee. The Committee maintain that they have always acted in good faith and relied upon legal advice.

Justice Beaudoin found that the specific section of the Co-Tenancy Agreement that refers to the fence was ambiguous. However, reading the Agreement as a whole, together with other relevant documents, it is clear that the intention of the Agreement was for the fence to be treated as shared property. He also found the allegations of bad faith to be without merit.

Comment: Some passages of the decision indicate a long and acrimonious dispute. (“The Applicants declined offers to sit on the Committee and preferred to engage in a campaign against the Committee members that led the community to eventually vote for, and approve, policies on requests for information and against harassment.”) No decision yet on costs.

About the image: By W.carterOwn work, CC BY-SA 4.0, Link

Conflict Resolution Tip #1

conflict resolution tip 1

Last month, I was fortunate to spend some time in Shanghai.

One of the things I learned there is that “road rage” is virtually unknown.

I was told that, for a Chinese person to lose control in this way would be a humiliating loss of face.

Let’s keep in mind that our response to difficult situations is within our control.

About the image: Night on West Nanjing Road, Shanghai

Condo Law Digest – December 2017

One Canada Square, Canary Wharf.jpg

TSCC No. 1556 and No. 1600 v. Owners of TSCC No. 1556, et al., 2017 ONSC 6542
Decision Date: November 2, 2017
http://canlii.ca/t/hn83r

TSCC No’s 1556 and 1600 are condominium corporations developed by Tridel Co. Their declarations include provisions permitting short-term rentals. (DelSuites, a company that provides short-term rentals and is part of the Tridel Group of Companies, manages units in both condominiums.) In this action, the corporations seek to prohibit short-term rentals by eliminating the provisions in the declarations that permit them. There have been no complaints regarding the rentals, however the corporations argue that AirBnB has changed the nature of the short-term rental market, and they seek to prevent future problems.

Justice Akbarali denied the application, reasoning that the declarations were not inconsistent with the Condominium Act, the relevant municipal zoning by-law, or the restrictive covenant registered on title to the lands on which the corporations sit. If the corporations want to amend their declarations, they will have to follow the provisions laid out in s. 107 of the Condominium Act (which specifies that 80% of unit owners must agree to the changes).

Comment: If you are purchasing a condominium unit and feel strongly for or against short-term rentals, make sure to have the declaration reviewed by a lawyer who specializes in condo law.

Peel Condo Corp 166 v. Ohri, 2017 ONSC 6438
Decision Date: October 26, 2017
http://canlii.ca/t/hmt8h

In this application, PCC No. 166 seeks a declaration that Mr. Ohri is in breach of the Condominium Act, and of the corporation’s Declaration and Rules. They seek an order requiring him to comply, and acknowledge that one of their purposes in seeking the order is to allow them to request he be removed from the Condominium, should he not comply. The conflict between the Board and Mr. Ohri dates to 1) a January 2016 altercation in the parking garage between Mr. Ohri and two Board members; and 2) an election of the Board of Directors in February 2016. Mr. Ohri supported his friend, a Mr. Singh. The Board posted a notice implying that residents should not vote for Mr. Singh. Mr. Singh lost the election by 9-10 votes when 20 votes against him were disqualified, based on Mr. Ohri’s alleged intimidation of unit owners into providing proxies. Mr. Singh sold his unit and moved out of the condominium.

Justice Price dismissed the application, finding the complaints against Mr. Ohri unfounded. Mr. Ohri has no history of violence, the police did not charge him, and video footage of two incidents from the surveillance camera were ambiguous as to who started things. Mr. Ohri was also able to provide a statement attesting to his good character signed by 15 residents of the building. Justice Price declined to order Mr. Ohri to comply with the Condominium Act, etc., saying that judges don’t generally order people to comply with the law.

Comment From Justice Price: “The court must be vigilant, especially in the context of a Board election in a condominium corporation, to ensure that its process is not manipulated by Board members who seek to maintain political control within the condominium by seeking a venue in which the condominium’s superior legal resources, and the indemnification terms of its rules, give it a significant advantage in a contest with a Unit owner.”

Pollock v. Wilson, 2017 HRTO 1476
Decision Date: November 8, 2017
http://canlii.ca/t/hnqvf

The applicant, Ms Pollock, is diabetic and relies on a service dog trained to recognize low blood sugar levels. Ms Wilson is her across-the-hall neighbor in a condominium. On Ms. Pollock’s door there is a sign alerting EMS personnel that there is a service dog in the unit. Ms. Wilson complained to the property manager about the sign, saying that such signs “serve to lower the tone of the building.” The property manager asked Ms. Pollock to remove the sign. (Apparently other signs, such as one proclaiming “World’s Best Grandma” were not similarly targeted.) In response, Ms. Pollock pasted additional notices and signs about disability and service dogs on her door. Condominium staff removed these notices; Ms. Pollock re-posted them. Finally, after speaking with a police officer, the property manager agreed that Ms. Pollock could continue to display the “service dog” sign. There was some additional back-and-forth among the two women, the building staff and the condominium board, about various issues related to the dog.

Ms Pollock filed a complaint against Ms Wilson with the Human Rights Tribunal. The adjudicator found that Ms Wilson’s complaints about the door created a poisoned environment for Ms Pollock and subjected her to adverse treatment. Ms Wilson was ordered to pay Ms Pollock $200 in compensation for injury to dignity, feelings, and self-respect.

About the image: One Canada Square at London, Docklands. By Garry KnightFlickr: 4:06 PM, CC BY-SA 2.0, Link

City of Toronto Mediation Pilot Program

Toronto sign (34289773236)

Over the past year my company has been on the roster for the City of Toronto’s Mediation Pilot Program. We attend selected meetings of the Committee of Adjustment and help neighbours work through their difficulties related to planning issues. I’ve become familiar with GFA (“gross floor area”) measurements, side-yard set-backs, and the profound love for and desire to protect trees shared by many of the city’s residents. The mediators in the program are always assigned to work with an independent planner. Leah Birnbaum, one of the planners on the roster, has written an article about her experiences with the program.

About the image: By Sebastiaan ter Burg from Utrecht, The Netherlands (Toronto sign) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Condo Law Digest – November 2017

Basketball court with puddles after a rainstorm, 2014 09 21

Weir v. Peel Condominium Corporation No. 485, 2017 ONSC 6265
Decision Date: October 20, 2017
http://canlii.ca/t/hmnjf

Ms Weir is the owner of a penthouse unit in PCC No. 485. In June 2015 she noticed water pooling on the floor of her solarium during heavy rainfall from the southeast. The problem continued for about two years. Ms Weir was unable to use her solarium and hesitated to spend time away from her unit during rainstorms. (I will not summarize the two years of investigations, attempted repairs, and back-and-forth communication among property managers, the board, engineers for both parties, and several lawyers.)

In this action, Ms Weir claims that PCC No. 485 1) failed to meet its duty to maintain common elements; 2) entered her unit unlawfully; 3) levied arbitrary penalty fees; and 4) attacked her credibility. PCC No. 485 denies that its conduct was oppressive. Justice Petersen agreed and dismissed the application for the following reasons: 1) While the Corporation’s first response to the problem was “far from diligent” they did ultimately respond appropriately to what all agree was a problem with no obvious solution. 2) Although the Corporation did make one unlawful entry to Ms. Weir’s unit, a single incident does not amount to oppressive conduct. 3) Given that Ms. Weir retained counsel and commenced litigation while the Corporation was trying to discover the source of the leaks, it was not unreasonable for the Corporation to seek indemnification for its actual legal costs. (This was a “strong-arm tactic,” but permitted by the Condominium Act). 4) The Corporation’s expressed suspicion that Ms. Weir was responsible for the water leakage because she failed to seal the outside sliders on her windows was not evidence of harsh or vindictive conduct – especially as they continued to investigate the source of the leaks.

Comment: By mutual agreement, the parties did not pursue mediation.

Wexler v. Carleton Condominium Corporation No. 28, 2017 ONSC 5697
Decision Date: Sept 25, 2017
http://canlii.ca/t/h6g9f

Ms Wexler sued CCC No. 28 in small claims court for about $2500. (I don’t have the details.) She was not successful, and the judge awarded the defendant costs in the amount of $20,000. Ms Wexler appealed the costs award. In this decision, Justice O’Bonsawin set aside the small claims court cost decision and instead ordered her to pay costs in the amount of 15% of her original claim (so about $375).

Comment: I’m curious as to whether the parties attempted mediation, and if not why not. While I don’t know the details of Ms Wexler’s claim, spending $20K to defend a $2500 claim does not seem like a good business decision.

Keele Medical Properties Ltd. v. Toronto Standard Condominium Corporation No. 1786, 2017 ONSC 6137
Decision Date: October 16, 2017
http://canlii.ca/t/h7234

This is a decision on costs following from a March 2017 decision regarding a condominium lien of about $243,000. [http://canlii.ca/t/h35m3] At that time, Justice Chiappetta found that the lien was valid and enforceable. TSCC No. 1786 asked for costs of about $164,000 on a full indemnity basis. Both parties made offers to settle before the trial. Chiappetta found that it was “fair and reasonable” for TSCC No. 1786 to seek full indemnity costs, and that the time and hourly rate were likewise reasonable.

About the Image: Basketball court with puddles after a rainstorm, 2014 09 21 by booledozer [Public domain], via Wikimedia Commons

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