The Evolving Litigant

Condominiums are rarely at a standstill; many are literally active 24 hours a day, 7 days a week. 

An array of individuals contribute to the ever-changing nature of the community. Owners, tenants, property managers, security guards, cleaners and other personnel can come and go.  All are potential participants in disputes and each may have a varying level of commitment to or interest in the condominium community. In the course of an emerging conflict, this can affect both the intentions of those involved and their willingness to participate in finding resolution. 

When one considers the ever-evolving nature of condominiums and reflects upon the length of time that is required to see a dispute through to resolution using the court system, obvious challenges come to light. The more time that is required to address a condominium conflict, the less likely that all key players involved in the dispute will remain part of the community. Sometimes, this works in favour of the community - such as a violating owner selling his unit and moving on; often though, it does not - such as when key witnesses fail to remain connected to the community by the time the matter proceeds to trial. This is not to suggest that ignoring the problem will eventually make it go away, but rather that the sheer duration of time required to see a condominium dispute through to a court-imposed resolution does not accommodate the natural progression of condominium communities. Time does march on.

Consider that at least one Annual General Meeting (AGM) will take place between the time that a condominium is typically engaged in litigation proceedings and the matter is ultimately heard. New directors can be elected to the Board and may not necessarily have the same views on how a particular issue should be addressed as their predecessors. A battle that prior directors felt was worth fighting may not be as significant to a new Board. Condominiums are political, after all.   In one circumstance which our office experienced, a condominium community had individuals run for election to their Board of Directors with a view to stopping a compliance application that had been brought against them. (They were ultimately unsuccessful in such endeavour.)  

While some communities have long-term relationships with certain service providers, it is not uncommon for a variety to assist a condominium community over the course of time. I was recently contacted in respect of a condominium litigation matter that has been ongoing for over 3 years and has yet to be tried in court…by the fifth lawyer to have carriage of the file! A variety of circumstances have required so many different lawyers to have been involved in the matter yet this serves as an extreme example of the type of change that can occur over the lifecycle of litigation.

Condominium communities are ever-changing environments and going to court is a timely process. Mediation provides an opportunity to address conflict faster and in a conciliatory manner, which can serve the best interest of the community as a whole by addressing the actual interests of those involved in conflict, preserving the relationships of those in community with each other and offering less costly solutions than those incurred in the course of seeking a resolution imposed by a judge.     

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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