The Mediation Process

Breface:

Recently I posted an article delineating the key elements of mediation and why the process works to solve disputes. Today I hope to explain the mechanics of mediation - the process itself. My comments apply generally to any mediation but as always your specific circumstances must be considered and may alter the process. I make specific reference to the DRC process and tools. DRC is the Dispute Resolution Centre being a part of the Community Legal Services program at Western Law. The DRC offers free mediations.

I will assume you and your "adversaries" have decided to mediate your dispute, have selected advisors or are going it alone[1], and that you have all agreed on a mediator.[2] What happens next?

Mediation Agreement:

Most Mediators will want the parties and their advisors to begin by reviewing and signing a "mediation agreement". Typically such agreements deal with confidentiality, the mediator’s role, that the discussions are without prejudice, that the authority to settle exits and that the parties have the right to withdraw at any time. The agreement should be read carefully and you should raise anything you do not understand or agree with. If its fee-based session the amounts and who will pay them should be agreed upon as well.[3]

Pre-Mediation Conference:

Next, some mediators use a pre-mediation conference to further assess and clarify what needs to be accomplished in the mediation. This usually only includes the mediator and the parties legal advisors.[4]

Opening Group Session:

On the appointed date the mediation usually begins with a group session. That means all the parties and their advisors meet together in one room. This allows the mediator to introduce themselves, make introductions (usually on a first name basis) and run through the ground rules once again to ensure that the mediation starts on the right foot.

This step may not be an appropriate start for all types of disputes. Some may be too emotional, too stressful or involve an element of undue influence. In these cases, the issues should be discussed upfront with the mediator to ensure things start off well and the process is modified to accommodate these difficulties. This is an area best suited to the pre-mediation conference or a discussion with the mediator in advance of the hearing.

Opening Statements:

Many mediators then call for the parties to make an opening statement. This is not a jury address. It is simply an opportunity to speak directly to the other parties and set out your version of the facts and your desired outcome. The party advancing the dispute is the first to speak. Each party, in turn, gets to respond with their version of events and desired outcome.

Meeting Directly - Face to Face:

The purpose of group sessions and openings is to encourage and facilitate direct negotiations between the parties. It is after all their mediation. More importantly direct negotiation is the most effective means of communication. The repeated passing of messages and offers by the mediator is less effective. 

Communication and comprehension are in a very small way achieved from the words used and far more from our perception of the tone of voice, body gestures and posture, facial expressions, and eye contact.

Mediators Opening:

At some point, either before, but more likely after, the openings, the mediator will give a summary of the key factors that led to the dispute and delineate all the issues that need to be resolved. This is done to ensure that everyone is on the same page going forward. This is invariably done in a positive, non-adversarial tone using neutral words encompassing all sides of the dispute.

Caucas - Meeting Alone with the Mediator:

At this point, the mediator will meet with one of the parties and/or their advisors in another room. This is known as a break-out or caucus. The mediator will do so with each party in turn, the order of doing so being of their choosing. The purpose is to have a one on one, private conversation, with each party. 

What is Confidential?

Remember that the mediator is free to disclose anything said in these meetings with the other parties UNLESS you instruct them that certain information disclosed is to remain confidential.

How Long Does It Take?

The process continues for the length of the mediation. It may contain many break-outs and several group sessions. Offers, solutions, and new ideas etc. will be raised, considered and discussed. The mediator is trying to help the parties reach a consensus. Depending on the agreed tenure of the mediation this can take many hours. Much of that time may be spent alone waiting for the mediator to return.

Mediation Settlement:

If a consensus is reached the mediator will facilitate the creation of a written agreement setting out the terms of the settlement or resolution. This is called a "Mediation Agreement" or "Minutes of Settlement". All parties will get to review the document and its terms and once satisfied will sign the document to signify their agreement.

Sum & Substance:

A lot of time, effort and energy go into mediation. All parties and the mediator are committed to arriving at a resolution and agreement. This leads to a success rate of 80%. Even where there is no agreement, it is rare for mediation to fail completely. Often partial terms of a settlement are achieved. This may be a settlement of one issue or just certain facts being agreed upon which simplifies any further dispute resolution before a court or tribunal.

Renting A Condominium In Ontario

Breface:

Condominiums have become a very popular housing option. It is reported that one in eight Ontarians have chosen to live in one. This is admittedly most frequent in the larger urban centers of the Province. For seniors this choice is made to avoid the work connected with owning a home, to defray repair and maintenance costs, and to provide the freedom to travel. For the younger set, there is, in addition, the ability to own “property” at a lower cost. All owners are also attracted by the quality of fit and the amenities provided in these generally newer buildings.

However, for some Ontarians the cost of such units, or of any real property, is prohibitive. These are the residential tenants of Ontario. Their demographic is often found to have restricted or fixed incomes, lower education and less legal sophistication and bargaining power. They are however as equally attracted to condominiums for the reasons above and to provide the best accommodation possible for themselves and their families. The focus of this article is to alert them and their landlords to the differences between the “usual” residential tenancies and renting a condominium unit.

General Housing Legislation:

Residential tenancies are governed by the Residential Tenancies Act (RTA), The Ontario Fair Housing Plan and The Human Rights Code (OHRC). The RTA sets out the applicable contract law, the “Plan” governs rent increases and the OHRC is aimed at preventing discrimination. These pieces of legislation govern all (most) residential tenancies in Ontario except as specifically exempted in the RTA. Disputes are resolved most often at the Landlord and Tenant Board (LTB) and occasionally in Small Claims court where the tenancy is an excluded one under the RTA. 

Condominium Legislation:

In dealing with condominium units there is, in addition, the Condominium Act (CA) and possibly down the road the Protecting Condominium Owners Act (PCOA). These  Acts were primarily meant to regulate the relationship between the Condominium Corporation (CC) and its unit owners. However, these provisions have had an impact on the usual rights accorded to residential tenants solely because they rent from owners of condominium units. In fairness, the drafters of the CA could not reasonably have foreseen the rapid proliferation of condominiums and the corresponding increase in their use as residential tenancies. The structure of the legislation presumed a “collective” regulating their rights as property owners and not the significant presence of occupants without ownership rights and their inability to be a part of the governance process.

Condominium Legal Structure:

A condominium corporation has a declaration (constitution), by-laws and rules (the constating documents). The declaration is prepared and filed by the developer. The by-laws and rules are determined by the directors of the condominium. Each CC is different and these documents can vary in what and how they regulate the use of units and what is acceptable behaviour on the part of all residents. The CA makes it very clear that “an occupier of a unit shall comply with the Act, the declaration, the by-laws and the rules”. 

Condominium Tenants Are Bound by the Condominium Rules:

A tenant would be an occupier and therefore bound to comply. To ensure knowledge of these enactments the CA mandates that copies of the constating documents be given to all tenants by their landlord (unit owner). In practice, this appears to not always happen. This failure results in confusion about who is bound by what terms and whether the CA or the RTA applies. This confusion may now be alleviated somewhat by the Standard Form of Residential Tenancy Lease which specifically alerts the tenant that they are so bound and subject to the constating documents. There is still likely to be some residual confusion. 

Tensions exist in any residential complex. There are various actors - landlord, tenant and co-tenants- that interact in a small, closed environment. In condominiums, this tension is increased given the presence of an additional stakeholder - the CC -  and the fact that there are now multiple “owners”.

How the Rules Differ when Renting a Condominium:

Let’s look then at the ways the rights of such residential tenants and landlords are affected or abrogated. They are listed in alphabetical order, not in order of their impact or importance:

Balconies

The by-laws of condominiums invariably deal with this space. They are most often considered a common element and not a part of the unit. The RTA makes no mention of balconies so unless there is a restriction in your lease it yours to use as you wish within reason. Condominium tenants are not so free. They are likely prohibited from storing their bikes or other personal items, from using or having barbeques, laying carpets or hanging laundry and maybe even plants especially if they hang over the railing.

Smoking can be prohibited by any landlord, even on the balcony.

Notice

The CC must be notified by an owner of any lease or renewal of a lease of the unit. The owner must provide the tenant's name and a copy of the lease. This may make common sense but it invades the tenant’s privacy. The knowledge that the unit is rented and of who rents it will not be private for long.

Payment of Rent

The landlord (owner) has obligations to the CC to pay their share of the common expenses. If they do not the corporation can give notice to the tenant, in writing, that they are obligated to pay their rent to the corporation to the extent of such unpaid common expenses. The CA does protect the tenant by stating that the rent so paid is considered payment under the lease. However, it’s a potentially confusing and difficult time for the tenant given the likelihood that the landlord will insist on the rent and/or threaten eviction.

Pets

Pets are often thought of as members of the family. Landlords and other tenants or owners are often not as keen on their presence. They worry about noise and odours. The RTA allows pets (animals) in residential units and prohibits their exclusion in any tenancy agreement by declaring such a clause void. However, this is not often the case in a condominium. Any of the constating documents can and likely does prohibit or severely limit the type of pets allowed. An exception may be made for service dogs or emotional support animals with sufficient proof of need.

Rent Control

Until recently the RTA exempted rental units built or occupied after November 1^st, 1991 from rent control. That would have included most condominium buildings. With the passing of the Ontario Fair Housing Plan in 2017 that is no longer the case at least for rent increases properly made after April 20^th, 2017.

Repairs, Maintenance and Insurance[1]

The RTA makes tenants responsible to repair undue damage caused by their willful or negligent conduct, another occupant of the unit or a guest. They are also responsible for the ordinary cleanliness of the unit. The RTA makes landlords responsible to keep the unit and real property in good repair and to comply with all health, safety and maintenance standards. This language is reasonably straightforward but subject to factual and causation disputes. These disputes are adjudicated by the LTB or in rare cases the Small Claims Court.

The CA enacted in 1998 also made condominium owners (landlords) responsible for the ongoing maintenance and repair of the unit. However, if the unit is damaged by a failure of some common elements such as a leaking roof, pipes bursting, lightning, fire, hail etc. then the corporation is responsible for repairing the unit. The CC is also responsible to repair and maintain the common areas. The money to do so comes from either the CC’s insurer (damage) or the condominium fees (maintenance or improvement) paid by all owners.

The CC’s obligation to repair is only for damage, not for ordinary wear and tear, and only for damage to the “standard unit” not any improvements made to the unit. The CC can also maintain the standard unit if the owner does not and recover the cost of doing so from the owner.

What a standard unit includes is initially contained within the Declaration. The CC can pass a by-law further defining what a standard unit is. Obviously the less it includes the less onerous the CC’s obligation.

Much of this discussion relates to insurance coverage. Who is responsible to insure what property? The RTA contains no mention of insurance. The new Standard Form of Lease does and calls for the obligations to insure be spelled out in respect of liability only. The CA is more specific. The CC obviously must have insurance on damage to the common elements and for any obligation to repair the standard units. The unit owner (landlord) must or should insure the units’ improvements. Liability insurance is needed for both the CC and the unit owner. Tenants should insure their contents and possibly have liability insurance if required to do so by their lease.

A second insurance issue is who pays the deductible? All policies require the insured to pay something towards the claim which is known as the deductible. In the case of the tenant or owner/landlord, they would pay this amount for any claim they made on their own policies. The CC, however, may have a large deductible. If it has to pay out on a claim this amount would be added to the operating budget and eventually paid by all owners as a common expense. To avoid that CCs often pass a Deductible By-Law enabling them to have the unit owners pay the deductible where the damage was not caused by any failure on the part of the CC or its agents, employees etc.[2] Without such a by-law the CC could only pass the deductible cost to the owner only if the damage claimed was to the unit and was caused by some failure on the part of the owner.[3] Residential tenants need not worry about paying their landlords deductible.

There are expected changes to these obligations once the amendments to the CA are passed. The first significant expected change is that the owner (landlord) would now be responsible for both the repair and maintenance of their unit. This would require the owner to amend their insurance policy to add this risk and correspondingly allow the CC to reduce its coverage. This certainly applies to CC's going forward but this change is subject to what is provided in each declaration. It is most likely that existing declarations simply repeated the old obligations from the CA and the change would not, therefore, be effective. Since it takes eighty (80) percent of the owners to change a declaration this is not an easy change to accomplish.

A second expected change is a restriction on CC’s to pass unit defining by-laws. This will not impact a CC that has already passed such a by-law. If it has not the only way to pass the deductible cost on going forward is through an amendment to the declaration. That is not likely to gain the support of eighty (80) percent of the owners.

A third expected change is a definition of what a standard unit is in the CA. The standard unit by-laws should survive but may be prescribed by Regulation down the road.

Rights of Action

Under the RTA the landlord has no right to commence an action affecting a tenants unit. As an owner of the building, the landlord may have certain rights of action in circumstances affecting their ownership. Under the CA the condominium corporation does have such a right. It can commence or settle an action for damages in respect of individual units.  Notice is to be given to all persons whose names are in their records which should include the tenant.

Owners have a duty to ensure that their tenants comply with the constating documents. If their tenant breaches those rules the owner, as the landlord, is responsible to the corporation. So if the tenant causes damage, breaks a rule or otherwise causes damage to the corporation the owner/landlord is responsible to pay those damages.

Right of Entry

The RTA attempts to preserve a tenant’s privacy. A landlord may enter the unit only in accordance with the RTA. That means with twenty-four (24) hours written notice for specified purposes. There are exceptions but they are narrow in scope or with consent. The landlord is also prohibited from changing the locks without providing new keys.

The Condominium Corporation or a person so authorized has additional rights of entry. The notice does not need to be written and only needs to be “reasonable” in terms of time. The purpose must be to perform its objects and duties or to exercise its other powers. See above under Repairs and Maintenance for some examples.

Subletting

The RTA allows a tenant to sublet their residential lease with the consent of the landlord. The consent cannot be unreasonably or arbitrarily withheld. Therefore a condominium tenant would expect that right as well. The RTA would preclude the lease from removing that right. Condominium by-laws however often prohibit short term leases to avoid overnight rentals to tourists or other such short term arrangements. Often leases less than a year in length are prohibited. This would effectively prevent subletting. The new Residential Tenancies Standard lease form provides for the tenant to acknowledge compliance with the condominium’s constating documents. This is so only for leases entered into after April 30^th, 2018. Tenants with leases entered into before that date might not be aware of the prohibition leading to potential disputes before the LTB.

Sum & Substance:

Condominium tenants are often blessed with a newer unit, better amenities and location but they should be aware both before signing their lease and afterwards of the differences in their rights and obligations between a normal residential tenancy and theirs. It would be a shock to have to lose a pet, their barbeque or other change in expectation.

Mandatory Victim Surcharge Found Unconstitutional

Breface:

The Canadian Criminal Code (CCC) at section 737 imposed a mandatory surcharge on anyone who pleads or is found to be, guilty, of an offence under the CCC or the Controlled Drug and Substances Act (CDSA). It was to be collected and used to fund victim support services. It also was meant to increase an offender's accountability to both their victims and the community.

The amount of the surcharge was fixed at 30% of any fine imposed, or where there was no fine, at $100.00 for every summary conviction count and $200.00 for every indictable count. Judges could increase, but could not decrease, the surcharge amount. The surcharge imposition could not be appealed unless it was levied beyond the minimum amounts.

The surcharge cannot be waived by the sentencing judge and when imposed it remains a debt of the offender until paid in full. The only relief available is to seek an extension of time in which to pay.

The Challenge:

At their sentencing hearing, several offenders challenged the constitutionality of the surcharge. They were all living in serious poverty and suffered from some combination of addiction, mental health and/or disability. The court recognized that many citizens involved with the criminal courts are disadvantaged and/or marginalized. As long as the surcharge is not paid they may be taken into custody, imprisoned, are unable to seek a pardon and possibly targeted by collection agencies.

The challenge was on the grounds that the surcharge was:

•      Cruel and unusual punishment contrary to section 12 of the Canadian Charter of Rights and Freedoms (Charter);

•      Violated their right to liberty and security of the person contrary to section 7 of the Charter.

The Decisions Below:

The offenders were from Ontario and Quebec. The result at their sentencing hearings varied but the Courts of Appeal of both provinces ruled the surcharge to be constitutional.

The Surcharge is Unconstitutional and Inoperative:

The Supreme Court of Canada (SCC) in R. v. Boudreault allowed the appeals and found the surcharge to be an impermissible form of cruel and unusual punishment contrary to section 12 of the Charter. It also could not be saved under section 1 of the Charter. It was therefore invalid and of no effect. The charter challenge under section 7 of the Charter was not addressed as a result.

Punishment:

The SCC was clear that the surcharge was to be considered a punishment. The test was clearly met in this case. It required the offender to show that the state action was:

•      A consequence of their conviction that formed a part of the arsenal of sanctions to which an accused may be liable, and either

•      Is imposed in furtherance of the purpose and principles of sentencing, or

•      Has a significant impact on the offender's liberty or security interests.

Cruel and Unusual:

This next step was a high hurdle to overcome. To be cruel and unusual, the punishment must be more than just excessive or disproportionate. It must be of such significance so as to outrage the standards of decency and be intolerable and abhorrent to society as a whole.

Although the surcharge is not a mandatory minimum sentence for a  specific offence, the SCC used the two-part test for such sentences to determine if the surcharge was grossly disproportionate. That involved a determination of what was a proportionate sentence for the offence committed according to sentencing principles, and then, asking whether the mandated punishment was grossly disproportionate to the proportionate sentence. This would be applied to the appellant's case or a reasonable hypothetical offender.

A Fit Sentence:

The SCC concluded that the surcharge was not a fit sentence for the appellants or a reasonable hypothetical offender. Sentencing is to be an individualized exercise. It must take into account the circumstances of the offender. This includes the ability to pay which is absent for the appellants.

Grossly Disproportionate:

The surcharge was found to be grossly disproportionate for the appellants because of their impecuniosity. It did serve a valid penal purpose but created egregious effects for the offenders and fundamentally disregarded the principle of proportionality in sentencing.

It did so because of:

•      The disproportionate financial consequences;

•      The constant threat of imprisonment or detention;

•      The possibility of collection efforts by agencies employed by provincial governments to collect the surcharge;

•      They became de facto indefinite sentences.

Section 1 Charter Justification:

The government did not offer any evidence or argument to justify the surcharge if found to have breached a Charter right. Accordingly, there could be no justification found to support the surcharge.

Making Your Own Will

Why A Will?

Everyone should have a will! The sooner you have one the better. Why? So your assets go to the people and places of your own choosing. It’s the last gift(s) you will make. Sounds dramatic, but is a very important expression of final intent - your last will and testament.

The Choices:

You have two choices. Have your will prepared by a lawyer or do it yourself. You might at first, choose to do it yourself. It would be faster and cheaper. You have seen will forms advertised and there is lots of information on the web. How hard can it be? It is harder than most people think. It can be technically difficult and often leads to costly litigation. That means it may either be invalid, resulting in a dissipation of your assets or they're going to someone other than who you intended.

Technical Requirements:

DIY wills are only valid if they meet certain requirements. The law that applies is Ontario’s Succession Law Reform Act (SLRA). 

Section 2 provides:

A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

(a)   Must be handwritten:

Such a will must be entirely written in your own handwriting. It is known as a “holograph will”. That leads to several initial problems. First of all, is your handwriting clearly legible so that it can be read in its entirety. Second, does printing qualify? Maybe, but the section uses the words “handwritten” not “hand printed”. Thirdly there can be NO typewritten portions. This means typed by you or found on a pre-printed form you bought or downloaded. It also means and includes any typed document attached to, or referred to, in your handwritten will. The typed portions, wherever found, will have to be ignored and of no effect.

(b)   Must be signed in the right place:

Secondly, your wholly handwritten will must be signed by you at the END of the will. That means below all of the gifts and directions you make in your will. Any gifts below your signature, or made after your signature is made, will equally be ignored.

(c)    You must have testamentary capacity:

This is a requirement for any will to be valid. It means that you must:

      1.      understand the nature and effect of a will;
2.      recollect the nature and extent of your property;3.      understand the extent of what you are giving under the will;
4.      remember the people you might be expected to benefit under the will; and
5.      where applicable, understand the nature of the claims that may be made by persons           you are excluding under your will.

Testamentary capacity, competency, will generally be presumed upon proving a valid will. However, if there are suspicious circumstances shown at the time of writing the will, the presumption will disappear, and those that want the will to be valid must prove capacity. Suspicious circumstances would be matters such as old age, frailty, mental illness, intoxication, the presence of beneficiaries at its making etc. There can be no complete catalogue of suspicious circumstances.

(d)   It must be a full and final expression of your intention:

This requirement comes from case law dealing with letters or memos, often to solicitors, setting out what their will should say i.e. the gifts and to whom. The document, here your handwritten “will,” must be shown to be an expression of your final intentions on the disposition of your property on death. It must be considered to be a testamentary act, not a memo of thoughts or discussion points. It must be read as a present intention of disposition on death and not point to some future act which would then do so.

The onus to prove this requirement is on the person(s) seeking to have the will be declared valid. If they cannot do so your will, even if it meets the requirements set out above, will be invalid. They can do so by the wording of your will or by other extrinsic evidence of your intention.

The best evidence is the wording itself. Do you call it your last will and testament or words of similar effect? If you have an existing will did your new will revoke it? Extrinsic evidence is more problematic and is affected by credibility.

Subsequent Alterations or Changes:

If they are made at the time of writing the will and signing it they would be valid. If made after the will, they need an additional signature referring to them to be valid. Dating the will and any changes is a way of avoiding such difficulties.

Can a Court Dispense of these Requirements if I Miss Something:

The short answer is no. Your holograph will must comply perfectly with the requirements of the SLRA.

Sum & Substance:

Unless time is short, or you are in a remote location, you are better off having a lawyer prepare your will. The initial cost will ensure the validity of your will and the sanctity of your final intentions.