Canadian Lawyer

42 www.canadianlawyermag.com LEGAL REPORT REAL ESTATE indicated that he had another appointment and left." Amlani was charged for the entire cost of the mediation, despite bylaws dictating the cost should be shared. Further, when the board banned smoking in April 2018, it refused to grandfather Am- lani in because he was "no longer living in the unit." Further, the corporation's expert was asked whether it was possible to create a "per- fect seal" on the unit, rather than whether the smell could be contained. "By refusing to negotiate, the corporation certainly did not try to achieve 'the greatest good for the greatest number.' It did not even ask whether it was possible to accommodate both Mr. Amlani and his neighbours. It sim- ply insisted that Mr. Amlani stop smoking," wrote Koehnen, citing Fine's argument that the smoking was a health hazard. Koehnen specifically called attention to the conduct of the condo board's lawyers during oral argument. Fine & Deo lawyer Jonathan Fine, who represented the condominium cor- poration in the case, says he has been instruct- ed to file a notice of appeal due to the presence of "several appealable errors." "[Fine] justified the corporation's refus- al to meet by saying: 'What really was there to talk about if Mr. Amlani was not going to quit smoking. There was really nothing to talk about,'" recounted Koehnen. "There was, however, much to talk about; namely, steps that could be taken to diminish the migration of smoke smell into neighbour- ONE YEAR YIELDS $25K LIEN Dec. 2013 Condo purchased 2015 Initial complaints about smoking arise March 2017 New complaints surface, despite 2015 fixes April 2017 Letter asks resident to restrict or stop smoking July 6, 2017 Resident ordered to stop smoking, despite new air filter July 20, 2017 Resident requests meeting with board and neighbours Aug. 2017 Resident offers to pay for engineers to fix nuisance Sept. 2017 Resident moves out Nov. 2017 Resident requests mediation March 2018 Legal fees surpass $25K April 2018 Condo board bans smoking ing units. That would have solved the prob- lem more quickly and cheaply than running up $25,000 in legal fees would." The debate, as Escayola sees it, comes down to whether there is a new precondition — getting an order — before charging back compliance costs or whether an indemnity provision could be written to include the ability to charge back legal costs associated with enforcement. "The concern for condo corps and for con- do lawyers is: 'Now, if I send the compliance letter, can I charge it back to the owner? And if I can't charge it back to the owner, under what condition would I be able to charge it back to the owner? And do I really need an order every single time? Does that make sense?'" says Escayola. "What if I send a compliance letter to someone that says, 'Listen, your music is too loud, you've got to turn it down after 11.' This letter costs you 500 bucks. The owner com- plies with it and he falls into line. Am I real- ly going to go to court to try to get the order which will allow me to recover that $500?" David Plotkin, who acted alongside Escay- ola, says that the case's "ripe factual scenario" yields other takeaways as well. "There's a lot of talk in all condo cases about who acts reasonably," says Plotkin. "In this case, the corporation acted as judge, jury and executioner. They refused to discuss low-cost solutions, refused to meet and considered me- diation a threat."

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