Law Times

Law Times • May 11, 2015 Page 7 www.lawtimesnews.com COMMENT One lawyer's wish list for change from newly elected benchers By William Trudell For Law Times hile lawyers have chosen 40 new or re-elected benchers to govern the profession, an embarrassingly low num- ber of them — just 34 per cent of eligible voters — cast ballots in the recent election. We often frown at the low turnouts for our federal and provincial elections, prompting some commentators to suggest making voting mandatory as in several other countries. While that's perhaps an idea for another time, we should be critical of ourselves for the apparent disin- terest in choosing who governs us given that our tools as lawyers are the laws of this country. Nevertheless, congratulations are in order to all those who ran as well as those who won. In the meantime, there's important work to do, particularly when it comes to efficiency and fairness in the discipline process. For many years, I have advocated for an ombuds- man for the members of the law society. In essence, the law society leaves it to pro bono mentors, volunteers, and outside organizations such as The Advocates' So- ciety to provide care to lawyers and paralegals in need. It needs to pay more attention and assistance to individual members, especially those who aren't at large law firms. An independent office within the law society, clothed with confidentiality, could well serve members in crisis and perhaps steer them towards help before problems escalate. The law society has been vocal about access to justice and the need to address legal costs in the community at large. That seems quite ironic when we examine the reports of discipline cases before our tribunals and note how many of our colleagues don't have counsel. There are many reasons why lawyers represent them- selves. Financial inability to retain counsel is certainly one of them. Very few lawyers scorn the offer of help and are dismissive of the process. Those in denial and blan- keted by shame are likely a more significant number. The Advocates' Society provides pro bono volunteers to help at hearings. But this program is under strain and is far from efficient or comprehensive. Pro bono counsel don't have the time and ownership of a case from its in- ception. While it would be disastrous in many cases if this program didn't exist at all, it's not sufficient. At the same time, a group of volunteer counsel also gives time at proceedings management conferences as part of an effort to invite licensees to seek advice and offer guidance at the front end of the hearing process. The leadership of Law Society Tribunal chairman Da- vid Wright in assisting and encouraging these efforts is commendable. Nevertheless, can someone explain why there's no duty counsel system in place at the law society given its financial resources? Our rules provide that we have a duty to co-operate with our regulator's investigation. There is no right to re- main silent. Lawyers must send a response and an inter- view, if requested, is mandatory. However, the law society takes the position that it won't provide a transcript of this voluntary interview to the licensee or counsel unless the matter proceeds to a discipline hearing. Therefore, you have no right to a tran- script of your interview from the law society as part of its investigation. Many licensees, in fact, undergo interviews without counsel present only to learn their explanation ends up being a nail in their coffin. It should also be mandatory to advise licensees under investigation in bold and plain language that they have a right to consult with counsel. While the information is there in an information sheet, it needs to emphasize it. It's absolutely unacceptable to suggest that law- yers and paralegals don't need advice when facing potentially career-altering investigations by their regulator. There have been repeated suggestions that law society letters announcing an investigation and requesting a response to a complaint should emphasize and highlight the potentially serious nature of the mat- ter and urge the licensee to consult with counsel. Again, the cost savings of assisting at the front end and providing focused help would be demonstratively tangible. There is a summary application process at the law so- ciety for licensees who fail to respond. The penalty most often is a suspension. Some licensees just refuse to co-op- erate. Others may have many reasons for not responding: shame, mental illness, fear, disorganization or collapse. These are situations that affect every one of us in some form at some time in our lives. I would ask benchers to consider not only a warn- ing that failing to respond could result in discipline but a clear suggestion to consult with counsel to get help on whatever the issue might be. If the licensee doesn't reply, this measure may be delaying the inevitable. But if just one lawyer in cri- sis reaches for that olive branch, the financial savings will be demonstrative. Finally, is it not time to revisit the issue of a pardon? It makes no sense that a licensee who has a discipline record can never have it purged. It's fundamentally wrong that our profession refuses to embrace rehabilitation in this way. We wish our newly elected regulators well. Their unselfish offer to serve is very impressive. I urge them to never lose touch with the impact of their policies on the lives of those they govern, including the ones who didn't have enough interest to vote. LT uWilliam Trudell is a Toronto defence lawyer and chairman of the Canadian Council of Criminal Defence Lawyers. u SPEAKER'S CORNER Changes to common elements among trends as condos age ondominium legislation has been available in Ontario for de- cades, went through at least one massive overhaul in 1998, and is about to go through another revamp any day now after an exhaustive public consul- tation and review process. The government's goal was to have resi- dents and industry experts work together to identify issues and develop recommenda- tions to modernize the Condominium Act. By all accounts, this collaboration has been a success. The Ontario Ministry of Govern- ment and Consumer Services has been busy converting this extensive public input into new condominium legislation ever since with Marko Djurdjevac, Crown counsel with the legal services branch, assuming the legal lead on what promises to herald some of the most exciting new developments in condominium law since the creation of the first condominium in Ontario. New condominium legislation in On- tario would be timely. Ontario is now home to more condominiums than any other jurisdiction in the western world. Toronto alone currently has approximately 260,000 condominium units. At the same time, much of Ontario's existing condominium stock is beginning to age and one of the ways that maturity is manifesting itself is through the common elements. Many amenities that were popu- lar at the time of construction have long since become redundant. For example, some urban condominiums close to public transit with large common-element park- ing structures or other automobile-centric infrastructure are finding that other uses, such as extra locker space, are eclipsing the demand for such facilities. In other con- dominiums, outdoor and underground spaces formerly dedicated to recreational purposes are seeing little use. In many condominiums, corporations can convert superintendent suites (all of which are common elements) to very saleable ground-f loor units. In some condominiums, some outdoor exclusive-use common elements (like back- yards and balconies) might better serve the residents by closing them off and adding them to the adjoining units themselves. Concurrently, condominium corpora- tions of almost all stripes are looking for ways to hold the line on their common ex- penses. While some common elements see little use, the common expenses to operate and maintain them continue to go up, espe- cially at some older buildings using outdat- ed technologies or simply facing the reality of years of deferred capital spending. As Odysseas Papadimitriou of Miller Thomson LLP points out: "For many of these older condominiums, it is not sim- ply a matter of utilizing common-element space in a way that better suits residents' needs; it is, instead, a matter of raising desperately needed cash to either top up reserve funds or to ameliorate the impact of common-expense increases or even special assessments." While condominium corporations have care and control of all common elements for the benefit of the unit owners, their direc- tors, even if they're unanimous in their de- cision, can't convert common elements into saleable units simply by passing a resolution. This type of major amendment requires a super-majority vote by unit owners. For in- stance, s. 107 of the Condominium Act re- quires a 90-per-cent vote of unit owners for such a major amendment, something that's no simple task in almost any condominium corporation and is virtually impossible in some of the really big ones that exist nowadays. Similar provisions for super-majority approval ex- ist in almost all other jurisdic- tions that have statutory condo- minium ownership, and rightly so as converting the common elements into saleable units can be a drastic change to the char- acter, value, and use of a building. Although amending a condominium declaration to convert underutilized com- mon elements into saleable units is becom- ing more common, such conversions aren't without some legal intricacies. In some ju- risdictions, the condominium corporation itself owns the common elements. This isn't technically the case in Ontario since the passage of the act in 1998. While it's fair to say that the condominium corporation has care and control of the common elements for the benefit of the unit owners, in On- tario the unit owners collectively own the common elements in accordance with their respective percentage-ownership interests as scheduled in the declaration. So in a hypothetical condominium of 100 units, all of the unit owners technically own the common elements with each hav- ing an undivided interest of one per cent. Moreover, even after 90 per cent of such owners have voted to amend the declaration pursuant to s. 107 of the act, immediately after converting the condominium com- mon elements, the resulting saleable units are then owned in the same way as immedi- ately before the conversion: by all of the unit owners, as co-owners, with each having an undivided interest of one per cent. To sell such converted common elements, all 100 owners will then have to sign a transfer. While a vote of 90 per cent of unit holders is extraordinarily dif- ficult to obtain as is, the concurrent co- operation of 100 per cent of all owners on almost any issue is all but impossible. Of course, this feature of the act shouldn't — and apparently hasn't — deterred condo- miniums from converting such underuti- lized common elements into saleable units. There are a number of legal techniques available to real estate lawyers to avoid the difficulties involved, but the most elegant and perhaps cheapest legal fix is for the condominium corporation to apply to the courts for a vesting order confirming that it owns the title to the newly formed units rather than the unit owners collectively as undivided cotenants. From a policy perspective, there's no rea- son why a court shouldn't allow the condo- minium corporation to own the new units until it can sell them off to buyers (or some- times the court order will put the title di- rectly into the names of the new buyers with the proceeds payable to the condominium corporation in cases where it has already ascertained the purchasers) since this type of vesting order would merely make practi- cal what the legislation seems clearly to have intended in theory. Even with such logistical hurdles to go through, the frequency of such condomin- ium common-element conversions con- tinues to increase, something that's a testa- ment to the changing demographics and demands of unit owners. LT uJeffrey Lem is editor-in-chief of Real Prop- erty Reports and director of titles for the prov- ince of Ontario. The opinions expressed in this article are personal to him and not attribut- able or referable to the Ontario government. W C The Dirt Je rey Lem Je rey Lem

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