This is the historical blog which was kept by Bridgeland Law about legal issues which, for the most part, impact condominium corporations in Alberta. The blog was written from the perspective of the condominium corporation and was intended to provide general information only to condominium corporations, their Boards of Directors, and their condominium property managers; specific legal advice should be obtained in respect of your particular situation.
A more illustrative case of how NOT to impose fines may not be found. In the case Condominium Corporation No. 042 5636 v. Chevillard, 2012 ABQB 131 Master Smart denied a condominium corporation the right to collect fines imposed and legal fees incurred in respect of fines imposed based on an owner's not cleaning up after the owner's dog. Amng other things, Master Smart took issue with the failure of the condominium corporation to follow its bylaws. Particularly, Master Smart stated that the Board of the condominium corporation was required to and failed to:
Pass a resolution declaring the owner in default of the bylaws based on the owner's failure to clean up after the owner's dog;
Provide written notice to the owner to rectify the breach of the bylaws; and
Check to see if the dog had been removed prior to filing its Application in the Court of Queen's Bench.
As a result of these three failures Master Smart dimissed the application and did not award costs to the condominium corporation for the legal fees incurred by the condomnium corporation. Hence, how does a condominium corporation properly impose and collect fines? The following list is suggested as good practice:
Make sure the condominium bylaws comply with section 35(2) of the Condominium Property Act (Alberta); 35(2) A bylaw under which sanctions are imposed must (a) set out the sanctions that may be imposed, and (b) in the case of monetary sanctions, set out the amount of the monetary sanctions or the range of monetary sanctions that may be imposed.
Look to both the Condominium Property Act and the bylaws of the condominium corporation for guidance.
The Board of Directors should gather the evidence that an owner has breached the bylaws; this should be done in writing and it is not sufficient, in this blogger's opinion, to rely on verbal/spoken evidence.
The Board of Directors should meet to discuss the allegation of breach and review the evidence which has been gathered; the Board of Directors should then make a decision whether the bylaw has been breached and evidence this by way of resolution in the Minutes of the Board of Directors (the resolution should reflect a summary of the nature of the complaint and the conclusion of the Board.
The Board of Directors should be guided by the requirements of the bylaws; many bylaws require that the condominium corporation give the offending owner notice of the breach and an opportunity to rectify the breach before proceeding with fining an owner. The bylaws may be even more detailed in respect of steps which need to be taken prior to collecting the fines (this blogger suggests that condominium corporations obtain independent legal advice on the requirements of their specific bylaws to avoid a result such as occurred in the Chevillard case).
The Board of Directors should be sure to inspect the unit or common property prior to proceding to Court and the Board of Directors should utilize the services of a lawyer familiar with the area of condominium law.
I am a regular reader of the online version of the Financial Post. I recently came across an article entitled "What makes a good lawyer?" written by Howard Levitt who is a senior partner at Levitt LLP a law firm in Toronto, Ontario. I thought Mr. Levitt's comments were interesting and I am sharing an abridged version of the article (the reason I am doing this as well as providing the link is that one day the link may not work). "What makes a good lawyer:
Knowing the law: The better you know the law, the more defences you can construct, which slip undetected by those less knowledgeable.
Understanding the "hidden persuaders: " This combines an instinct for the jugular with a knowledge of legal regulations and corporate practices.
Most cases settle. The amount of that settlement may have more to do with the company's need to settle than with the case's intrinsic merit.
Analytic skills: Ultimately, employment litigation (or any litigation) is about placing the "facts" within an impregnable theory of the case. To do so, you have to command a mastery of the weaknesses of your side as well as its strengths and synthesize the entire case into a three-dimensional picture, which is impenetrable to opposing theories. To accomplish this, you have to anticipate all lines of attack and ensure your theory of the case, and your witnesses, can withstand them.
Understanding psychology: This not only assists in probing the other side's weaknesses, but provides insight into how to "tell your story" in the manner most likely to be believed. It also instructs what to emphasize and when to settle.
Understanding negotiations: There is a propitious time to settle and there are times to do nothing. If, for example, you are about to go to mediation or a pretrial, any offer made will simply be used as the basis for yet further increases. A lawyer's job is to assuage the clients' anxieties and conceal their vulnerabilities;
Sales skills: Ultimately, lawyers are salespeople. You have to sell yourself to the other side, the mediator and the judge and convince them that your case is overwhelming. If you lack those skills, your prospects of success are limited.
Client control: A lawyer's advantage is detachment from the client's anxieties and personal views of their case. Ultimately, you must do as the client instructs. However, your job is to strongly influence that. (Some litigants) are desperate to settle as quickly as possible, often at the expense of their case. (A lawyer's) job is to influence their subjective views with informed ones. At the end of the day, that is much of the reason why they are not representing themselves - and shouldn't be.
Witness-preparation skills: How a client performs has everything to do with preparation. Counsel must have suffi-cient trial experience to accurately predict what is coming and assist in coaching their witnesses as to how to answer. I try to anticipate questions in cross-examination and prepare answers that will explode on opposing counsel when that question is asked.
Trial experience: Shockingly, only a handful of members of the employment bar, even senior ones, have conducted trials or, at least, any major ones. Few have done appeals. This impacts on how they are perceived by opposing counsel and how strong their actual bargaining power is in settling cases.
Proportionality: However brilliant their victory, no client is happy when their legal fees are disproportionate to the result. Not every case can be treated with the rigour of one involving tens of millions of dollars, or of an appearance before the Supreme Court of Canada. Clients think in terms of paying for the developments in a case, not for how many hours the lawyer spent on it. I also urge my juniors to ensure they spend their energy accordingly. Clients never appreciate handholding when they receive the bill for it.
Digging deeper: Some cases have come to me over the years that appear, on their face, to be almost hopeless. Few turn out to be. Good lawyers keep digging into the facts and are alert to the opportunities when they arise."
