Jeanette Bicknell Ph.D., Q. Med.

Jeanette BicknellI help people resolve conflict, and I help groups work together effectively and respectfully.

My practice areas include art, education, employment, condominium and workplace disputes.

Like many mediators, I have come into the field after doing something else. I taught philosophy at the university level for about 10 years. My academic specialties were the philosophy of art and ethics. But no matter what the specific material I was teaching, I always considered that my primary task was helping others to think clearly. I’m still doing this, but now as a mediator.

I’m still active in academic philosophy. You can find out more about my work at www.jeanettebicknell.org

Thinking About Conflict and Value is my blog. Conflict is what mediators spend most of their time thinking about, working through, and trying to resolve. Value refers both to moral values and to aesthetic or artistic values. I write on a wide variety of topics, including best practices in mediation, ethical and legal issues in the arts, workplace conflict, business ethics, and the ethics of everyday life. You may also find the occasional book review. I invite you to join in the discussion on these blog posts.

From the Blog:

How are Musical Performances really Judged?

In my latest post for Psychology Today I discuss an experiment in which subjects either watched a musical performance with the sound muted, watched the video and heard the music, or heard the music alone.  Guess which group was able to pick the competition winners?

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Condo Law Digest – April 2014

by Marlith (Shared under Creative Commons License)

1716243 Ontario Inc. v. Muskoka Standard Condo Corp. No. 54, (with a counterclaim) 2014 ONSC 1848
Decision Date: March 24, 2014
http://canlii.ca/t/g68rp

Judge Gilmore referred to this claim and counterclaim as an “extended and somewhat complex litigation” over an inadvertent error.  The applicant purchased a unit in the condo corporation in February 2012.  The unit included two parking spaces.  The Status Certificate contained an error, in that the calculation of the unit’s common expenses did not include the amount associated with the two parking spaces (about $168/month).  The applicant stopped paying the charge for the parking spaces in May 2012 and argued that the corporation is precluded from pursuing payment related to the parking spaces.  The corporation argued that the status certificate should not be read in isolation and that it bound the corporation only for the fiscal year ending March 2012.  In January 2013 the corporation registered a lien for non-payment of common expenses (amounting to about $6945.00).

In this action, the unit owner seeks a declaration that it is not required to pay common expenses for the parking spots and an order discharging the lien.  The corporation seeks an order requiring the owner to pay the full amount of the lien, interest of 24%, all costs incurred by the corporation and the full costs of both actions, and a declaration that the owner is in breach of the Condominium Act and of the corporation’s by-laws, rules, etc.

The judge ruled that the owner could not avoid payment for the parking places after March 2012 (about $2185 owing with nominal costs award of $750).  He declined to order the owner to pay the corporation’s full costs, since the origin of the matter was an error by the corporation.

Comment:  The corporation spent about $30, 000 to bring this matter to court.  I cannot help but wonder if the parties attempted mediation.

Elbaum v. York Condominium Corporation No. 67, Nathalia Gauto and Miqueias de Oliveira Silva 2014 ONSC 1182
Decision Date: Feb 26, 2014
http://canlii.ca/t/g4n3d

The plaintiff, an elderly woman, owns a unit in the condominium corporation.  In September 2012, during a walk on the common elements of the condominium, she was seriously injured when she was attacked by a dog owned by Gauto and de Oliveira Silva.  (The dog was unleashed at the time.)  She has sued the dog owners under the Dog Owners’ Liability Act and the condominium corporation for common law negligence under the Occupiers’ Liability Act.  The corporation has brought forth a motion seeking to have the plaintiff’s claim dismissed under Rule 21.  To be successful, the corporation would have to show that it was “plain, obvious and beyond all doubt” that the plaintiff could not succeed.

Judge Perell dismissed the motion.  He found that even if the corporation was not the owner or harbourer of the dog (and therefore there was no strict liability under the Dog Owners’ Liability Act), this would not preclude a claim of common law negligence or a claim under the Occupiers’ Liability Act.

Comment:  It is no surprise that there are so many rules and by-laws regarding dogs in condominiums.

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Posted in Condo Disputes | Leave a comment

The Tenants, their Dog and the Small Claims Court Decision.

Photo “Behind the Red Wall” by skycaptaintwo

Every month I provide a brief summary of some recent Ontario condominium cases. This small claims court decision from April 2013 (Carriero v Carli, 2013 CanLII 88835) caught my eye as deserving some extended discussion.

The defendants began renting a unit belonging to the plaintiff in March 2010. About a month later the property manager of the condominium sent a letter to the plaintiff, alleging that his tenants were keeping a dog in the unit, drawing his attention to the rule forbidding pets and asking that the dog be removed. The plaintiff got in touch with his tenants who refused to remove the dog. Their position was that the condominium management was “only trying to scare” him.

Comment: Regular readers will know that I believe you should never ignore a letter from the condo board. While the plaintiff did not ignore the letter, there is no indication that he responded in writing, spoke to the condominium management or sought legal advice.

About a week later the defendants’ lawyer wrote to the property management company, stating the view that the “no pets” rule was unenforceable.  The lawyers for the condominium corporation wrote back, stating that the rule was indeed valid, and that they would begin court proceedings against the plaintiff and his tenants if the dog was not removed by May 7, 2010.  The defendants took the view that they would not be “bullied” by the property manager who was enforcing the “no pets” rule on a selective basis.

Comment:  The plaintiff did not seek legal advice at this time, and would only do so months later, in October.  Was he relying on the opinion of his tenants’ lawyer?  If so, this was ill-advised.  Had he consulted a lawyer on his own behalf, the plaintiff might have had a better idea of the possible consequences of inaction.  (See my website for information on the importance of lawyers in mediation.)

Will it surprise anyone reading that the defendants did not remove their dog?  Over the next four months the condominium’s lawyers billed the corporation nearly $13 000 in fees regarding this matter.  The corporation, invoking their legal right to recover costs associated with enforcing the condominium’s rules, registered a lien for this amount against the plaintiff’s unit.

Comment: The provision in the Condominium Act that boards can “charge back” the costs of enforcement to owners who have broken the rules is meant to protect “innocent” owners from the high costs of litigation.  Owners who fail to abide by rules should be aware that legal costs can balloon out of control amazingly quickly. Two recent examples are York Condominium Corporation 345 vs. Qi and Ottawa-Carleton Standard Condominium Corporation No. 671 v. Friend.

In November 2010, as the result of a Superior Court application at Brampton, the dog was ordered removed and the defendants were ordered to pay $2000 in costs.

The plaintiff estimates that he has spent $23 000 in the matter (including around $13 000 legal fees incurred by the condominium.) In this application to the small claims court, he sought to recover these costs from the defendants, arguing that their “defiant” behavior and attitude caused his damages.  In considering his application Deputy Judge Klein noted that: (1) The Condominium Act states that an owner must take “all reasonable steps” to make sure that his tenants, or anyone else in his units, complies with the condominium’s declaration, by-laws and rules. (2) Although the plaintiff is a “victim” here, he should have attempted to mitigate his situation by  ousting the defendants from his unit and/or challenging the amount of fees charged by the condominium’s lawyers.  (3) The fees charged in this case were “excessive and simply out of line.”

The judge also noted that, despite the provision in the Condominium Act that disagreements between the corporation and owners be resolved through mediation or arbitration, there was no evidence that either was attempted.

Comment: Some lawyers take the view that, when the issue is a straightforward violation of rules, there is no obligation to mediate.  Is this a conflict that should have been mediated? (See for example, The Judge’s Dog, The Elusive Parrot or The Sisters Upstairs and the New Hardwood Floors.) I do not have enough information to know whether mediation might have resulted in a better outcome in this case.  My own view is that, while mediation is not advisable in every condominium dispute, it is probably advisable more often than is realized.  See my post on why you might want to keep talking, even if it seems there is “nothing to discuss.”

The judge ruled that although the defendants were at fault (for refusing to remove their dog) the plaintiff must bear some responsibility.  In particular, he should have sought legal advice at an earlier date, attempted to remove the defendants from his unit and challenged the amount of fees charged by the condominium’s lawyers.  The judge awarded the plaintiff $13 000 in damages and $750 in costs.

Comment: You can read the full text of the judge’s decision here.

Posted in Condo Disputes | Leave a comment