Law Times

March 20, 2017

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Page 2 March 20, 2017 • Law TiMes also introduce a new tribunal — the Condominium Authority Tribunal — that the government hopes will streamline dispute resolution and will handle a number of matters that lawyers currently handle through medi- ation, arbitration or court pro- ceedings. Toronto lawyer Denise Lash says it is not clear what lawyers' involvement will be in the new tribunals. One of the bigger questions condo lawyers have about the tribunal is whether it will be able to effectively streamline the dis- pute resolution process. "There is to be an online pro- cess and until we see the rollout of the process, it is difficult to know whether it will work well or not," Lash says. Malhi says the tribunal will be designed to provide faster, lower-cost dispute resolution. "The tribunal will be able to direct parties to alternative dis- pute resolution, including nego- tiation, mediation and arbitra- tion," he said in an email. "Parties will continue to have the option to consult legal coun- sel if they choose to do so." Odysseas Papadimitriou of Harris Sheaffer LLP says the fear of having to bring an appli- cation to court may have scared of harm is present. One of those situations is when there is a paternalistic re- lationship between the plaintiff and defendant. As such, Matheson deter- mined the Childs decision did not preclude a finding of duty of care in this case, as Wardak was not a third party but a guest, and that the case falls within "the contemplated paternalistic duty." Matheson also noted that the Childs case did not involve underage drinking. In her dismissal of the sum- mary judgment motion, Mathe- son found problematic aspects in some of the evidence submit- ted. She said transcripts from examinations for discovery were not proper evidence and that submitted witness statements were not sworn affidavits. Matheson said she was pre- pared to overlook the technical problems of this evidence as the parties had agreed to submit it that way but found there were also too many factual gaps for the case to be fairly decided on a summary judgment motion. Matheson found there were differences in accounts as to when and how much Wardak was showing signs of intoxica- tion and that there was only "double hearsay, unsigned, un- sworn summaries" from some of the key witnesses at the party. Dang says lawyers are still grappling with how to present evidence on summary judg- ment motions and the decision provides a good indication as to what judges will accept. "We're all still trying to figure it out in certain ways," she says. Daniel Reisler, the lawyer rep- resenting the defendants in the case, says he thinks judges have been particularly tepid to rule on summary judgment motions. "Particularly in damages ac- tions, there has always been a sense that people should have their day in court," he says. "That may have been reason- able when we had more judicial resources relative to the amount of litigation. We're not in that situation anymore. I don't think we can afford to let every case go to trial." He added that the decision shows that no matter how strong the liability case you have is, a damages action with serious in- juries remains very difficult to win on a summary judgment motion. While there has never been a finding of social host li- ability in Canada, the lawyer for the plaintiffs, Leonard Kunka, says he is encouraged by Mathe- son's decision. "It certainly gives me hope that in an appropriate case where you can establish the duty of care that the court would im- pose liability on a social host," he says. Reisler says his clients have no intention to appeal Matheson's decision, meaning the case will likely be heading for a trial. LT NEWS off a lot of unit owners in the past from going forward with a dispute against the condo board, but having a dedicated tribunal going forward might make them more willing. He says it is going to take time for lawyers to get their head around the new regulations as the legislation is very intricate and has many different com- ponents that are going to come into play. "I don't think you can just read just one regulation or one section of the act in isolation anymore. "You have to be familiar with the entirety of the act and know how everything ties together," he says. Papadimitriou says there will be a big need to educate lawyers on the new regulations and he hopes the provincial govern- ment will take on that task. He says he does not have con- cerns about the contents of the regulations. He expects that they will cre- ate more work for condo lawyers. Currently, condo boards can hold owners meetings without lawyers present. However, going forward there will likely be more require- ments and legal issues arising that would require the presence of a lawyer. "I think going forward almost definitely a condo would have to have their lawyer present at an owner's meeting or a general meeting to advise them," he says. Condo lawyers and other members of the public will have until March 30 to submit feed- back on the draft regulations. LT Continued from page 1 New tribunal created if draft regulations pass Decision gives instruction on evidence Continued from page 1 CCLA Gala 2017 FEATURING: EDWARD SNOWDEN via live video 2017 HONOREES: KATHERINE GOVIER JIM BRONSKILL PATRICIA GAGIC BEN MAKUCH MARGIE WOLFE ROBERTA BONDAR CRAIG FORCESE KENT ROACH ROBERTO MARTELLA IRWIN COTLER SHELAGH DAY LINDA BERTOLDI FRANCES WAITHE MARY SPENCER LISA BORSOOK DENNIS EDNEY YAVAR HAMEED BILL BOGART JASMINE AKBARALI URSULA FRANKLIN MEDIA SPONSOR APRIL 27, 2017 THE EGLINTON GRAND, TORONTO TICKETS AND INFORMATION: GALA.CCLA.ORG Join us to celebrate remarkable Canadian human rights and civil liberties activists from all walks of life Untitled-2 1 2017-02-21 9:56 AM

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