Law Times

Page 6 November 6, 2017 • Law Times www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Expert testimony L aw Times has two stories this week that relate to expert testi- mony or expert witnesses. In one, the Ontario Divisional Court upheld the dismissal of a lawyer's claim against a handwriting expert for defama- tion. In Deverett Law Offices v. Pitney, lawyer Michael Deverett's firm brought a claim against a handwriting analyst who had done work for a former client. The ruling confirms expert witnesses cannot be sued, say lawyers. In another story, Law Times reports on how the Ontario Court of Appeal is being asked to clarify if any evidence by police officers who are testifying as experts can still be admitted if there is a finding the witness has a bias in favour of the prosecution. In R. v. Natsis, the judge determined that certain aspects of evidence from a police officer who was a technical traffic collision investigator could be ad- mitted, even though "the defence . . . met its burden and established that there is a realistic concern that [the officer is] biased." Ultimately, the officer's evidence was submitted, in part. "Expert opinion tendered by a party is a unique type of evidence. Although generally retained by one side to the litigation or the other, experts are expected to be neutral," said the ruling by Justice Neil L. Kozloff. "Their testimony is meant to assist the court and the trier of fact, not to bolster the theory of the case presented by one of the two sides. Their status as experts derives, in significant measure, from the assumption that they will offer the court objective opinions on which the court is entitled to rely." Both rulings remind lawyers of the importance of the role of the expert witness and their crucial role in the courtroom. Judges, too, play an important role in ensuring the duty of the expert witness to the court is fulfilled. In a time where court proceedings are all too often portrayed to be either needlessly adversarial, difficult to navigate or inhibiting access to justice, the chance for a judge to deftly navigate complexity around this type of testimony has never been more important. LT ©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . .Catherine Giles Electronic Production Specialist . . . Derek Welford Not all condo residents treated equally BY IAN HARVEY T he Toronto skyline is a long way from the suburban utopia of manicured lawns and white picket fences. While Toronto once spread out, it's now also rising up, and since almost no one is building new apartment rental units, the demand for rentals has been supplied by condo buyers, many of whom are absent offshore investors. There are some 750,000 condo units with 10,000 condo corporations in On- tario now, so it's laudable and timely that new regulations under the Protecting Condominium Owners Act 2015 came into force in September with more slated for January. No matter how many new regula- tions are added, however, says Michael Gwynne, a lawyer at Harris Gwynne Law Firm specializing in condo law, the bigger issue with managing the social dynamics of vertical communities is human nature. "In my experience, bigger conf licts are caused by owners," he says. "They just go ahead and do things they shouldn't. The new act gives all this attention to the owners, but it's the own- ers who keep breaching the rules. Con- dos communities are like cities with bylaws, but there are owners who don't want to believe the rules apply to them." So, here we are. The Protecting Condominium Owners Act creates the Condominium Manage- ment Regulatory Authority of Ontario to regulate and license property managers and creates the Condomin- ium Authority of Ontario, which will manage the Condominium Authority Tribunal, a body mandated to resolve disputes ultimately using video conferencing. More transparency, more account- ability, fewer points of exploitation and a balance of power between condo boards and owners — it all sounds good. This is great if you're a condo owner, but what if you're a tenant? Geordie Dent, executive director of the Federation of Metro Tenants' As- sociations, says the changes invoked last May under Bill 124, the Rental Fairness Act and the changes under the Protect- ing Condominium Owners Act simply don't address the reality of condo tenants who make up a growing portion of those vertical communities. "The Rental Fairness Act is great for large landlords with multiple buildings or multi- residential units," says Dent. That act brought units built since 1991 such as con- dos under rent control, but it really doesn't cover many of the issues condo tenants face, he says. "In a condo, the person above you might be an owner and the person below is a renter," Dent says. "What happens when the upper unit f loods the lower unit? There's a clear mechanism under the Landlord and Tenant law when it's an all-rental build- ing, but things get more complicated when it's a renter and owner." In law, he says, the tenant has no legal relationship with the condo board of di- rectors and, by extension, property man- agement, because their legal relationship is with the owner. As such, the tenant has no right to no- tice of a board meeting and no voice at that meeting, unless the owner endows them by proxy. That's easy if you have a relationship with the owner, either by blood or friendship, but it gets compli- cated otherwise. Tenants can be assigned proxy votes by owners, says Gwynne, and the board should at least accept their presence and listen to their concerns, but it's not bind- ing on any budgetary issue and it's rarely invoked. The problems will only grow, Dent says, since there are no rental units being built, just condos, which get rented. "The issue is there's a lot of confu- sion about who is responsible for what," he says. "Whether its communication, enforcing condo rules, repairs, damages to common space. We asked the govern- ment to address these issues, but I'm not sure what their rationale is in doing what they did." It's something to consider when look- ing at that Toronto skyline. LT uIan Harvey has been a journalist for more than 40 years, writing about a di- verse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. Queen's Park Ian Harvey

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