Law Times

Law Times • June 25, 2012 Gov't moving fast on reform of still-modern condo law T COMMENT he provincial government from owners, residents, and other stake- holders in advance of an expected major overhaul of the legislation. Although industry groups have in- cently announced its long-await- ed public review of the Condo- minium Act with a call for input re- sisted that legal reform is well overdue in the area of condominium law, the truth of the matter is that the government com- pletely revamped the Condominium Act in 1998 with changes coming into force in 2001. Compared to the almost glacial pace of legislative reform in almost every other area of the law, the Condominium Act is relatively nascent and the proposed modernization and strengthening of the legislation called for by the government is nothing short of fast and furious. Th e legislative review comes on the heels of bill 72, a private member's bill launched by NDP MPP Rosario Marchese with a num- ber of proposed amendments to the act that would make it more of a prophylactic con- sumer protection legislation by adding fea- tures such as, most notably, a tribunal to hear the plethora of disputes typically involved in condominium living. What' explosive growth of condominium con- struction in the province since the passage of the 1998 version of the act. According to a press release by the joint government relations committee of the Canadian Con- dominium Institute and the Association of s driving the call for reform is the ownership seems to be causing politicians to fall over each other in a rush towards legal reform, much of the recent call for change doesn't really derive from the governance is- sues that are germane to the Condominium Act. Instead, most of the recent popular press concerning condominium problems are really no more than construction issues more properly governed by the Ontario Building Code, the Ontario new home war- ranty program, and tort and contract prin- ciples inherent in construction law generally. For instance, the recent Toronto Life ar- ticle, "Trouble in Condoland," focused on Condominium Managers of Ontario, there are now more than 1.3 million Ontarians call- ing a condo their home. Nowa- days, condominiums comprise almost 62 per cent of new home construction in the province. Although strongest in the Great- er Toronto Area, condominium growth has spread throughout much of the province with 104 of 107 Ontario ridings now hav- ing condominium projects. Although the surge in condominium construction defect disputes in certain high- profi le Toronto buildings, but it' clear that the issues at the heart of those mat- ters would fall under the Condominium Act, reformed or otherwise. Th ey are, at most, construction issues that might have arisen just as readily in offi ce, apartment or any other high-rise construction. s not really The Dirt Jeffrey Lem "who are living in communities of tenants rather than in the condominium com- munity environment that the government originally anticipated would be there when condominium communities were built." Although the announcement really just drey Loeb, an architect of the ex- isting version of the Condomin- ium Act, feels that any amend- ments will have to address the phenomenon of investor-owned buildings with large numbers of rental units. As Loeb eloquently put it during a CBC interview recently, the disenfranchised minority of the future will be the remaining owner-occupiers Miller Th omson LLP's Au- begins the consultative stage of legislative reform, there' end of this reform process, the amend- ments to the act will likely include increased consumer protection for buyers, more comprehensive rules for condominium fi - nances and reserve-fund management, re- visions to board governance, accreditation of condominium managers, and enhanced dispute-resolution protocols. Many eyes are looking to British Co- s an expectation that, at the lumbia, which recently introduced legisla- tion to develop an online dispute-resolu- tion protocol for condominium owners. If the legislation becomes law, an indepen- dent tribunal will provide online dispute- resolution tools and, where necessary, hold hearings to address condominium-related matters. On the one hand, this may result in a noticeable increase in the number of disputes. On the other, such a mechanism would take these issues out of the courts. It' minium lawyers see the need for wholesale reform of the act. While the Toronto Life ar- ticle did highlight the problems in certain buildings, the demand for condominium units suggests that, by and large, the vast majority of owners and occupants are probably quite happy with their homes. Instead of wholesale reform of rela- s important to note that not all condo- tively modern legislation, it may be just a matter of tweaking the existing law and persuading the courts to properly enforce the existing provisions. In many cases, the courts have openly skirted the plain and obvious intent of the act in order to craſt their own solutions to the complexities inherent in condominium life. As a result, jurisprudence related to condominium law has been wildly inconsistent. Whatever reforms come of the process, it's unlikely there will be anything that sub- stantially dismantles the current system. Th e foundations already exist for a system of condominium ownership in Ontario. Based on them, condominiums have become the de facto source of rental stock and the only remaining entry point to home ownership for most fi rst-time buyers. LT Jeff rey W. Lem is a partner in the real estate group at Miller Th omson LLP. His e-mail address is jlem@millerthomson.com. Bar must examine its role in adapting to self-represented litigants BY JULIE MACFARLANE For Law Times T smart people feel stupid." here's a revolution happening in our u SPEAKER'S CORNER are gradually outnumbering those with legal counsel. The National Self-Represented Litigants Project is currently documenting their stories. We are exploring with respondents the difference between their expec- tations and the reality of their experiences, as well as their motivations, fears, and challenges. When I first approached government and other Self-represented litigants in family and civil court courthouses that will affect every aspect of the delivery of legal services and justice processes over the next decade. potential funders with this research proposal a year ago, the response of many was that they were too busy try- ing to develop resources for managing self-represented litigants to study them. The problem is that we think we already know how to fix the problem — or at least slap a Band-Aid on it — by developing information-type resources for those representing themselves. But is the answer really that simple? Don't we need to first know more about just why people are turning in increasing numbers to self-representation? The law foun- dations of British Columbia, Alberta, and Ontario have now generously provided funding for this study. There' self-represented litigants in our courts. While the num- bers vary somewhat between jurisdictions, the trend is clear. In the family courts, where self-representation has historically been most common, the numbers are stag- gering. In California, for example, those representing themselves constituted one per cent of all litigants in fam- ily court in 1971. By 1992, this had risen to 46 per cent and later 77 per cent in 2000. Reports suggest that from 1995 to 1999, the actual numbers of self-represented litigants in Ontario' s little documented on the precise numbers of per cent. The same trend is spreading to the civil system. In order to understand the experiences of self-rep- s an inevitable element of s Unified Family Court rose by 500 resented litigants, I am using personal, semi-structured interviews and focus groups to gather data in British Columbia, Alberta, and Ontario. Since respondents must consent to an interview, there' self-selection in a study of this type. The credibility of our results depends on the depth and the consistency of the experiences reported and, to a degree, the representative- ness of the sample group. Interviews generally last from 45 minutes to one hour and we note them contempo- raneously in exhaustive detail. All interviews and other communications, such as e-mail or discussions on the project' program that codes and analyzes qualitative data and sorts for themes and patterns. Hundreds of people are coming forward to tell their s Facebook page, are being entered into a software stories. The level of response reflects just how many people are facing the growing gap between what they can afford or are willing to pay for legal services and the cost of hiring a lawyer to represent them in court. We have already completed more than 160 interviews and have a long wait-list. We have also conducted a further 50 interviews to date with agencies providing services to self-represented litigants. At this stage of the research process, prior to formal experience of their lives. At the same time, they have a laundry list of fairly consistent complaints: the pro- cedures are arcane and confusing; pro bono assistance is minimal; the burden of time and energy on those with any other obligations is almost intolerable; the emotional and financial costs of protracted conflict are too high; and lawyers and judges are often dismissive and unhelpful. There are no easy answers here, but the first step is system and passionately want to believe in it again. Many, however, are now frustrated and exhausted by what several describe as the most humiliating Many began with great confidence in the justice to understand what this experience is like for system outsiders. If we're serious about access to justice, we must accept that those without legal representation are about to become the majority in our family and civil courts and we therefore need to prepare to engage in a genuine dialogue with them. This genie isn't going back in the bottle. Self-represented litigants want timely and effective justice, just like represented parties. Instead of being defensive or dismissive, it' coding and analysis, what has struck me the most is the level of trauma experienced by so many of these individuals and how many seemingly polite, rational, and upstanding citizens are angry about their experi- ence of access of justice. Some declare themselves, only partly tongue-in-cheek, to be victims of "post- traumatic court syndrome. I am interviewing are all crazy, stupid, and alienated, which is a common characterization of self-represented litigants. Certainly, there are individuals in the sample, just as in the wider population, who have personality disorders or anger-management issues, but it' ous to assume that these are the only people who find themselves in court without a lawyer. The overwhelming majority of those I have inter- s errone- viewed so far aren't crazy, stupid or alienated. More than half have a university education, although, as one person put it to me, "This is a system that makes www.lawtimesnews.com It would be a grave mistake to assume that the people " think about what these criticisms mean for how lawyers make themselves relevant to 21st-century clients who can find content on the Internet and don't understand why they should pay $300-500 an hour for form-filling and filing. How do we convince people that lawyers are worth it? And how do we ensure that they really are? The future of legal services lies not with marketing content or process but in advocacy and counselling that reflect expert knowledge as well as strategic and sup- portive assistance in decision-making. Are we ready to face the challenge self-represented s important for the bar to PAGE 7 litigants present? Are we ready to ask ourselves what the justice system would look like if we designed it to meet the needs of self-represented litigants rather than trying to squeeze them back into the existing structure? Julie Macfarlane is professor of law at the University of Windsor. She' project co-ordinator Sue Rice and research assistants Raman Pandher, Lois Li, and Kyla Fair. For more information, visit the project web site at representing-yourself.com. s undertaking the project with the assistance of LT

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