Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth The dilemma of A national class actions over an allegedly defective hip implant to determine which Ontario matter would go ahead. Th e main actions competing against each other were the Ontario matter of McSherry, which is in cohort with the certifi ed B.C. class action of Jones v. Zimmer GMBH, and Mets v. Zimmer GMBH, a case also fi led in this province. Jones is a national opt-in class action while McSherry is a regional one in Ontario. Law- yers in Mets opposed a motion to stay their matter on the basis that it had several advantages over Jones and McSherry, including the fact that i t was a national opt-out class action. In a July 13 decision, Perell ruled in favour of the pairing of Jones case before the Ontario Superior Court this month off ers a perfect illustration of the problem of national class actions. In McSherry v. Zimmer GMBH, Justice Paul Perell had the job of sorting out 10 class actions across the country and McSherry, in part because the B.C. case was further along and had received certifi cation from the Supreme Court in that province in September 2011. He noted that an Ontario plaintiff would have the ability to opt into the B.C. matter but would also have the failsafe of the as-yet uncertifi ed McSherry action in Ontario should the B.C. Court of Appeal overturn certifi cation in Jones. Th at would be in the best interests of class members rather than staying McSherry and al- lowing the uncertifi ed Mets to go ahead, Perell ruled. Perell' it's an issue organizations like the Canadian Bar As- s decision provides a good overview of the current dilem- mas related to overlapping class actions across the country. Of course, sociation have sought to address through its task force on national class actions. While the task force made some progress last year, a recommendation for a case management judge to oversee schedul- ing of overlapping class actions across the country met with considerable resistance from the bar. Th e matter before Perell is yet more evidence of the need for action on that front. While he ultimately made a decision that made sense in terms of deal- ing with the overlap, the situation could have eas- ily been otherwise if the timing had been diff erent. Having a judge able to deal defi nitively with such situations, while certainly tricky in our fragmented justice system, would be better. — Glenn Kauth Condominium Act renovation overdue review and periodically update statutes lest they become irrelevant or inade- quate. Th e Condominium Act may not be the sexiest example of this fact but it' T he law, as those consumed by it like to say, is a living, breathing thing and it needs to be fed. As such, governments must statute frozen in time and badly in need of modernization. While the government passed it in 1998, the act didn't take eff ect until 2001 at a time when few people really thought much about condominiums. To many, they were for those who couldn't aff ord real houses. Fourteen years later, we're dwarfed by condos in Toronto and the fever has spread across the province like wildfi re. As such, condo residents are a poten- tial political force that's still dormant but s a timely and urgent illustration of a waiting for a galvanizing issue to rouse them from their slumber. Th ere' ronto where we lead North America in condo starts and development plans and where the price bubble is likely to burst in the next year or two when interest rates start to climb back up. When you s a perfect storm brewing in To- Law Times add the fear of being upside on your condo mortgage to the discovery that your monthly maintenance fees are soaring because the re- serve is either underfunded or serious structural prob- lems have suddenly popped up on your building, it seems likely there are going to be a lot of angry people looking for answers. Wait until they fi nd out that Tarion, Ontario's new- Queen's Park inadequacies of the act and the secrets of the condo in- dustry by chance while edu- cating herself on the expecta- tions of a board and the rules around condo corporations. Th at led her to create a Ian Harvey home warranty program, doesn't cover them. At that point, they'll get even angrier, says Anne-Marie Ambert, an emeritus professor at York University. She suggests condo residents will be steaming when they also discover the Condominium Act of 1998 doesn't be- gin to address their needs. Th ey may be even more frustrated when they realize their condo board is too cosy with the management company that in turn is an off shoot of the developer and has delib- erately kept a lid on issues. A condo dweller herself, Ambert is web site, condoinformation.ca, where a forum has unleashed a fl ood of complaints and shocking stories from other not-so-happy owners. "Th e issue is there' says, adding there has been a pretty close relationship between the industry and Queen' oversight to the act," she heavily skewed in favour of the boards and prohibitively expensive for the in- dividual owners. Last spring, the NDP' sult, says Ambert, is that in the event of dispute between owners and the board, there' s Park over the years. Th e re- s mediation but the process is chese, a long-time proponent of condo owners' happy with her unit and board and con- siders herself lucky. She stumbled on the private member's bill to update the act. s no date rights, introduced bill s Rosario Mar- 72, a Th at move prompted the government to launch a review of the act. Th ere' Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . Kendyl Sebesta Staff Writer . . . . . . . . . . . . . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . . . . . . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . .Alicia Adamson Account Co-ordinator . . . . . . . . . . . . . . . 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Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com s no summer on hearings and submissions. It' s long overdue, says Ambert, who says Marchese's bill, while well inten- tioned, doesn't go nearly far enough. Th e review will cover all aspects of condo life from conversions to reserve funds as well as mandatory classes for board members and standard accredita- tion for management personnel. Buyer protection is also on the table as are dis- pute resolution, construction warran- ties, and property tax categories. What' aff ordable arbitration process that bal- ances owners' rights against the respon- sibilities of condo corporations and a way to hold developers accountable. Ambert is right. "People are scared, s necessary, says Ambert, is an complain about things and manag- ers do nothing. Some people feel so trapped they get depressed and think of suicide. Th ey've become prisoners in their own homes." " she says. "Th ey LT u Ian Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianhar- vey@rogers.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com COMMENT July 23, 2012 • law Times

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