Condo Law Digest – December 2013

Stanley Gordon v. York Region Condominium Corporation No. 818, Ed Rotman, Ahsan Zaiyouna, Harold Davis, Eugene Katz & Manfred Kapp
Decision Date:  August 21, 2013
Text of Ruling: http://bit.ly/1eWv8aC
Judgment on Costs: http://canlii.ca/t/g1qtp

Mr. Gordon, together with the named defendants, are members of the Board of Directors of York Region CC No. 818.  The corporation’s by-laws contain a provision that a Director may be removed if he or she violates the Director’s Code of Ethics on three occasions over the course of a term.  The by-laws also contain a procedure for an ethics review. In November 2011 Mr. Gordon was accused of breaching the standard of care of a corporate director and of failing to act honestly and was removed as Director following an ethics review.  Mr. Gordon asked the court 1) to have his disqualification as Director to be declared invalid; 2) to have the by-law declared contrary to section 33 of the Condominium Act and therefore invalid; 3) to be re-instated as Director; and 4) other relief.  The Respondents brought a counter-application asking for 1) a declaration that the by-law is valid; 2) a declaration that Mr. Gordon’s removal from the Board be upheld; 3) an order upholding the determination of the ethics review; or failing that 4) a finding (on the evidence before the court) that Mr. Gordon breached the standard of care of a corporate director.

Judge McCarthy ruled that while the by-law was acceptable and not contrary to the Condominium Act, the ethics review conducted by the Board did not conform to minimal standards of procedural fairness or natural justice.  Rather, it was “plain and obvious” that one of the Directors was seeking to unite the others in removing Mr. Gordon.  The judge set aside the disqualification but declined to re-instate Mr. Gordon.  The Board is at liberty to conduct a fresh ethics review within 90 days.

Comment:  I’ve written about some of these issues before, in the context of Bill 168 and workplace investigations: How to Write a Code of Conduct, Investigating Complaints under your Policy, and Investigations Gone Wrong.

Asking for an Apology (Part 2)

One of the most popular posts on this blog is one I wrote more than two years ago, about asking for an apology.  At least once a day, someone somewhere searches for the phrase “asking for an apology” or “how to ask for an apology” and finds my post.

Unfortunately, some who find the post will be disappointed because I do not actually explain how to ask for an apology.  So I decided to remedy that today.

First, a disclaimer:  I do not believe that those people searching for “how to ask for an apology” are searching for the right thing.  Asking for an apology is actually pretty easy.  “You owe me an apology” will do it.  The harder part – the part that people really need help with – is in telling someone else why they owe you an apology.  And that is what I want to help with.

1.  Raise your concern about a specific act or specific pattern of behaviour.  “You were an hour late meeting me” or “The last three times we’ve arranged to meet, you’ve been very late.”  Do not say something like:  “You are always late” or “Why can’t you get it together and be on time?”  Also resist attacking the person’s character:  “You don’t care about anyone but yourself!”
2. Tell the person how their actions effect you:  “When you are late to meet me, I feel like you don’t care about my time” or “I feel frustrated if I don’t know when you will arrive and I have to wait.”
3. Then pause.  Give the other person a chance to say something.  Maybe he or she will take the opportunity to apologize.  Maybe not.  Unfortunately, you risk the other person saying something like, “Gee, you’re so uptight.  What’s the big deal about being a few minutes late?”
4. If that happens – if the person you’re addressing attacks you or mounts a vigorous defense instead of apologizing – what you should do next depends very much on your relationship.  Is this someone with whom you can have a calm discussion?  Is this someone who is incapable of a genuine apology?  Is this someone you simply must get along with, such as a family member?  Unfortunately, there is no pat formula for what you should do.  But see the next step.
5. Apology received or not, you can say something like this:  “In the future, I would like you to…try harder to be on time or … call me if you’ll be late or …whatever you think would improve the situation for you.

Asking for an apology – and especially telling someone why you feel you deserve an apology – is risky.  Yet if you don’t do it, the person who has upset you may never understand the effect that their words or actions have had, and your relationship may never be the same.  You have to decide for yourself if taking the risk and asking for an apology is the right thing to do.

Disgust - New Post at Nautil.us

What do we really mean when we say that we are "disgusted" by someone's actions? Do physical and moral disgust share a common origin or do we simply borrow the rhetoric of disgust to show strong disapproval? I discuss some recent thinking on these issues in "Misdeeds & Disease: How Similar are Disgust and Moral Disgust?" a post for "Facts so Romantic" the blog of Nautil.us, a new science magazine.

Condo Law Digest – November 2013

Ottawa-Carleton Standard Condominium Corporation No. 671 v. Friend, 2013 ONSC 5775 (CanLII)
Decision Date: October 9, 2013
http://canlii.ca/t/g0x7z

At a meeting of owners in November 2008 it was decided that the water meters would be replaced with energy meters, so that the energy costs for each unit could be fairly determined.  The condominium agreed to pay for the purchase and installation of the new meters.  After about a year meters had been replaced in 49 of the 50 units.  The owners of the remaining unit, Mr. and Mrs. Friend, advised the corporation that they would allow access to their unit only under certain conditions.  The condominium found these conditions unacceptable and informed the Friends that if they did not provide access for the purpose of installing the new meter they would ultimately be required to pay the installation costs themselves.  Over the next 18 months the corporation continued to request access to the unit and warned the Friends about the possibility of bringing a court application.  The Friends continued to refuse access, a court application was brought, and a case conference was held in November 2012.  At that time it was agreed that a new water meter would be installed, and that payment for the installation, obligations to pay outstanding water charges, legal costs and various bylaw violations related to storing sports equipment on the unit’s balcony, would be the subject of a future hearing.

At the hearing, Judge Maranger found that the condominium acted in a manner that was “fair and reasonable” and that the respondents (particularly Mr. Friend), “simply decided that the rules of the condominium were not going to apply to him.”  He ordered the Friends to comply with all bylaws, and to pay for installing the meter, for outstanding water charges as calculated by the condominium, and for $15,000 in legal costs incurred by the corporation.

Comment:  I can only quote the judge: “That a matter such as this ended up in Court is unfortunate, the cost consequences here are 5 to 10 times the value of the claim.”


A follow-up to two cases I reported in the September Condo Law Digest:



In Green v. York Condominium Corporation No. 834 and ThyssenKrupp Elevator (Canada) Ltd. the plaintiff was ordered to pay to the defendant $20, 000 in legal costs and over $8000 in disbursements.

In 673830 Ontario Limited v. MTCC 673 the plaintiff was ordered to pay the defendant costs in the amount of $15 000.

Condo Law Digest – October 2013

Mitchell v. The Printing Factory Lofts Inc., Beaverbrook Homes Inc. and Anthony Lanni 2013 ONSC 5603 (CanLII)
Decision Date: September 5, 2013
http://canlii.ca/t/g0d7j

In February 2007 Ms. Mitchell entered into a written agreement to purchase a unit in The Printing Factory Lofts on Carlaw Ave., with the understanding that her unit would have an exterior door onto the street.  After construction began Toronto Hydro informed the developer that duct banks were to be placed in an area that prevented the proposed exterior door.  In November 2009, after Ms. Mitchell complained about the exterior door loss, she was given three options:  Accept the unit as is; move to another available unit of the same size with an exterior door for the same price; or mutual release from the written agreement.  None of these options was acceptable.  Ms. Mitchell took possession of the unit in January 2010 and closed the sale “under protest” in June 2010.  She submits that the condominium corporation, the developer, and Mr. Lanni, an employee of the developer, are liable to her regarding removal of the door.

In this action Beaverbrook Homes and Mr. Lanni moved for a summary judgment to dismiss the claims against them, on the grounds that they were not privy to Ms. Mitchell’s agreement with the Printing Factory Lofts.  The judge found no evidence that Beaverbrook or Lanni were liable to Ms. Mitchell as agents of the Printing Factory Lofts. He agreed to grant the motion and ordered that Ms. Mitchell pay $5000 in costs to Beaverbrook Homes and Mr. Lanni. (The parties had agreed previously that the successful party in the motion would be entitled to costs in that amount.)

Comment: The door is not closed on Ms. Mitchell’s action against the Printing Factory Lofts, which includes claims of deficient work and Ontario Building Code issues.


Dhillon Group v. Peel Standard Condominium Corporation No. 919, 2226828 Ontario Inc. and Rajiv Kumar Johri 2013 ONSC 5719 (CanLII)
Decision Date: September 16, 2013
http://canlii.ca/t/g0lht

In 2010 Mr. Dhillon purchased a unit in PSCC 919 for use as an accounting office, with the understanding that the condominium’s Declaration contained a restrictive covenant prohibiting any other unit from also operating as an accounting office.  Shortly after, Mr. Johri (director of 2226828 Ontario) renovated his dry cleaning business in PSCC 919 and began preparing tax returns there, as well as offering tax and financial planning (and dry cleaning).  PSCC 919’s Declaration states that it is not the responsibility of the Corporation to enforce restrictive covenants, and that PSCC shall not be added as a defendant for failing to enforce a restrictive covenant.

The issues for determination were 1) whether Johri’s use of his unit constitutes an “Accounting Office”; and 2) whether the portion of PSCC 919’s Declaration denying responsibility for enforcing restrictive covenants was contrary to the Condominium Act and therefore unenforceable.  Judge Firestone found that 1) Johri’s activities in his unit did indeed come under the scope of running an “Accounting Office” and that he must cease or cease permitting the use of his unit for any services carried out in an accounting office.  2) The portion of PSCC 919’s Declaration under dispute is inconsistent with section 17(3) of the Condominium Act and must be amended.

Comment:  I wonder how many other condominium Declarations contain unenforceable provisions.


Diamantopoulos v. Metropolitan Toronto Condominium Corp. No. 594, 2013 ONSC 5988 (CanLII)
Decision Date: September 23, 2013
http://canlii.ca/t/g0nkc

Judge Corbett found that the issues brought by the applicants were too insignificant to be litigated or mediated and invoked the Latin maxim: De minimis non curat lex.

These issues included (judge’s comments in parenthesis):
1.  Warnings made by condominium management regarding the applicants’ conduct in the exercise room.  (No outstanding conflict.)
2.  Recent conflict between the applicants and their upstairs neighbours. (Condominium management behaved reasonably in directing the applicants not to contact their neighbours directly.)
3.  The applicants were accused of behaving rudely towards security personnel and have been asked to avoid dealing with them except in the case of a genuine emergency.  (“This should solve the problem with a minimum of fuss and bother.”)
4.  The management of TCC 594 has asked the applicants to use the management office when communicating with members of the Board. (“Sound policy.”)
5. Management blamed the applicants for damage to the door of their neighbours’ unit and asked them to pay for repairs.  (No issue here since the request was later dropped.)

The judge dismissed the application.  The respondents had asked for partial indemnity costs of $5800. However since the respondents argued that the matters should come to court rather than to mediation (and this approach “fanned the flames of conflict”) they are entitled to recover only $2500.

Comment:  Due to Judge Corbett’s unfortunate extended medical absence, the parties had to wait nearly a year for this decision.

When We Trust Our Intuitions

I'm very happy to have an article, "When Lawyers Trust Their Intuitions" in the current issue of Canadian Lawyer's e-magazine.  Although the research I discuss was done with lawyers it is relevant to anyone who wants to make better decisions.

Read the article to learn about four different faulty cognitive strategies:  The framing effect, confirmation bias, nonconsequentialist reasoning, and the sunk cost fallacy.

Have you ever made a bad decision because you relied on one of these?  Leave me a comment below.

Why You Should Never Ignore a Letter from the Condo Board

When I read about condominium disputes, I am often struck by how the conflict could have been resolved a lot sooner (and for much less money) if only the unit owner had responded to the Board’s letters.

 A typical scenario goes something like this:  The owner gets a letter notifying her that her dog Fluffy has been barking and annoying neighbours, or that her trumpet playing is too loud, or that the holiday decorations she has put up do not comply with the condominium’s rules.  The owner thinks –“There must be some mistake.  Fluffy never barks.” Or, “I never play the trumpet after 10 p.m.” Or, “I put up the same decorations last year and no one said anything.”  So she ignores the letter.  Or maybe she has a chat with the condominium manager, or with a board member, and feels reassured by what she hears.  Another letter comes regarding Fluffy (or the trumpet playing, or the decorations) this time from the board’s lawyer.  She ignores that as well, assuming that whatever problem there may have been has been resolved.  Before she knows it, she is summoned to a mediation with the board and is asked to reimburse the legal expenses that the board incurred in getting her to comply with the regulations.

 It is never a good idea to ignore a communication from your condominium manager or from the board, even if you feel that the complaint against you is ill-founded, or the matter is trivial, or that the rule you are accused of violating is unfair.  Condominium managers and boards have a duty to enforce condominium rules, to respond to complaints, and to persist until the matter is resolved.  It is always in an owner’s best interest to acknowledge and answer a communication from the property manager or from the board.  If you do not respond then the board has no way of knowing your perspective on the matter.

Instead of ignoring a letter do the following:

1. Respond in writing.  Acknowledge receipt of the letter.  If the complaint is based on a misunderstanding or on false information, explain.  (“Fluffy was with me at the cottage during the week in question. Hence the barking must have come from another unit.”)  If the complaint is legitimate, explain how you will address it.  (“In the future, I will limit my trumpet playing to between the hours of 4 and 5 p.m.”)
    
2. Respond promptly, but if the letter has upset you (“How dare anyone object to my holiday decorations!”) wait until you have relaxed enough to write a calm letter.  If you have a friend whom you feel has good judgment, ask him or her to read over the letter before you send it.
    
3.  If you have a conversation with the manager or a board member about the contents of the letter, document this as well.  Soon after the conversation, summarize the main points  in writing and send it to the person you spoke with.  Ask if he or she has anything to add or notices any errors or misunderstandings.
    
4. Maintain a paper trail.  Keep copies of letters and emails about the issue.  If the matter goes further – say to arbitration – it is important to have some record of communication.  Memories fade and managers can be moved to other properties.  Above all, you will want to be able to show an arbitrator or judge that you acted responsibly and took reasonable steps to resolve the conflict.
    
5. Get legal advice, especially if the matter does not seem resolved with your written reply to the initial letter.  It is important to seek advice from a lawyer who has experience with condominium matters.  Don’t ask your cousin the criminal lawyer or one of the in-house lawyers at your workplace.  Paying for good advice early in the process might save you a lot of money later on, should the conflict not resolve easily.

For the most part, disputes between condominium residents, or between unit owners and boards, do not simply fade away.  The early stages of a conflict are a precious time and the first moves made toward resolving a conflict can greatly influence the later stages. Don’t give up your chance to shape the outcome of a dispute by ignoring it in the early stages.




An edited version of this post was published on the "Condo Business" website.

Condo Law Digest – September 2013

Green v. York Condominium Corporation No. 834 and ThyssenKrupp Elevator (Canada) Ltd. 2013 ONSC 5004 (CanLII)
Decision Date: July 29, 2013
http://canlii.ca/t/g01g5

One evening in August 2005 Ms Green, a 72 year old resident of YCC 834, entered the elevator on the 16th floor intending to meet visitors in the lobby.  The elevator descended and stopped but the door did not open.  There had been very heavy rain for the past two days and, although Ms Green did not know it, many problems with the elevators.  When the doors failed to open she banged on them for help, and then used the emergency telephone inside the elevator to call the condominium gatehouse.  The person who answered said that he would send help.  After “a long period of time” without assistance of any kind, the elevator door opened a small ways (described by Ms Green as “five or six inches” at her examination-for-discovery and one to one-and-a-half feet at trial) and she tried to exit the elevator sideways.  As she did so the elevator moved again and propelled her out onto the lobby floor.  She slid across the floor and hit a pillar, injuring her head and shoulder.  Her visitors took her to the hospital where she was found to have a broken shoulder.

Ms Green made a separate agreement to settle her claim against YCC 834; the issue for this trial was whether ThyssenKrupp Elevator bore any liability for Ms Green’s injuries.  Her counsel argued that the company had failed in its duty of care under the Occupier’s Liability Act.  Justice O’Marra dismissed the claim based on the following reasons: 1) ThyssenKrupp is not an “occupier” under the Act but an independent contractor; 2) There was no evidence of negligence on their part, and no connections made between their actions and Ms Green’s injuries; and 3) Ms Green was “the author of her own misfortune” because she left a place of safety (i.e. the stuck elevator).

Comment:  It is surprising to me that a stuck elevator would be considered a “place of safety.”

673830 Ontario Limited v. MTCC 673, 2013 ONSC 5218 (CanLII)
Decision Date: August 16, 2013
http://canlii.ca/t/g053b

In May 2011 at MTCC’s annual general meeting unit owners were told that the corporation would receive a payment from the City of Toronto because of an earlier expropriation of common elements land by the TTC, and that this payment would cover the cost of urgently needed roof repairs.  In August the corporation received a payment of about $750,000.  In September the applicant made an offer to purchase one of the building’s units, conditional upon receiving and approving the corporation’s Status Certificate.  The Certificate stated that the Board anticipated that the reserve fund would be adequate in the current fiscal year for the expected cost of major repairs. In November the Board issued a special assessment to unit owners for $1,000,000 for the cost of roof repairs; this was cancelled when it was determined that the roof replacement cost could be lowered.  In February 2012 the Board held a special meeting to explain that the payment from the TTC would cover the expected cost of roof repairs.  Certain unit owners wished to be paid their share of the monies directly (rather than have them applied to the roof repairs) and so the Board issued a second Special Assessment in the exact amount of the TTC payment.  (Whether a unit owner elected to have his share of the TTC payment applied directly to the roof repair, or to pay the assessment and then receive a share of the payment, there would be no net change to the owner’s finances.)

The Applicant demanded a share of the TTC payment.  It argued that it was not informed in the Status Certificate, either about the pending roof repairs or about the anticipated payment from the TTC, and so should be exempt from both Special Assessments.  The Board argued that the Applicant should not profit from the TTC payment without contributing to roof repairs, and that the second Special Assessment was issued for “administrative purposes” only.  The Judge found that the Status Certificate was accurate when it said that the reserve fund would be adequate to cover the cost of anticipated repairs and that the Applicant had not been treated differently from other unit owners.  The application was dismissed.

Comment: Sometimes a Special Assessment is not a Special Assessment.

Condo Law Digest – August 2013

York Condominium Corporation No. 345 v. Qi, 2013 ONSC 4592 (CanLII)
Decision Date: July 8, 2013

In January 2006 Mr. Qi, a unit owner at YCC 345, defaulted in the payment of common expenses when his cheque was returned NSF.  This prompted a lien on his unit.  The original default of around $500 increased with the addition of interest (at 12% per annum), $25/month service fee, and legal fees.  In Spring 2012 YCC 345 successfully brought a motion for summary judgment, and by that time the debt had ballooned to about $33,000, and the costs for the summary judgment motion brought it to over $46,000.  Mr. Qi, who was not represented at the time of the motion, retained counsel who appealed the summary judgment and asked for a costs assessment.

Counsel for YCC 345 argued that the corporation should recover its full legal costs, as provided for in the Condominium Act and in YCC 345’s Declaration.  Justice Quigley disagreed.  Although the Condominium Act creates a framework for governance, “the directors of condominium corporations are counted upon to act with prudence and reasonable good judgment.” He found that costs should be assessed on a partial indemnity basis, and his reasons include 1) the legal costs were “immensely disproportionate” to the arrears of common expenses; 2) YCC 345 could have taken steps to reduce the conflict; 3) Mr. Qi had offered to settle the matter in 2009, and if reasonable efforts had been made to find a solution, the greater part of the legal expenses would never have been incurred.

Comment:  Another judgment stressing that legal fees and related costs must be reasonable.  Condominium corporations cannot expect that any and all costs will be passed on to defaulting unit owners.

If a Tree Falls …. Do We Have to Fight About It?

I’ve written before about how microwave ovens are a source of conflict among co-workers.  When it comes to conflict between neighbours, trees appear to be a leading source of tension. Now a recent court case about a Toronto tree has clarified some of the legal issues relevant to trees in Ontario.

It would seem to be common sense, as well as a provision of the Forestry Act, that if a tree trunk is growing on the boundary between two lots, then the tree is the common property of the adjoining landowners.  If a tree is indeed jointly owned, and one of the owners wants to remove it, the other owner must agree.  However the Forestry Act does not specify where the tree’s trunk begins and ends.  If the trunk of the tree emerges from the ground directly over the property line, then the tree is pretty clearly jointly owned.  But matters are rarely so simple.

In the Toronto case the tree trunk met the ground on Katherine Hartley’s property, but its roots, canopy, and part of the trunk extended over the property boundary into her neighbours’ back yard.  At some point (and for reasons that were not clear in the legal documents) Hartley came to the conclusion that the tree was unhealthy and decided to have it removed.  Her neighbours, Hilary Cunningham and Stephen Scharper, would not consent to the tree’s removal, so Ms. Hartley sought the court to declare that she was the sole owner of the tree and so did not require her neighbours’ consent. 

The judge dismissed her application and found that the tree was jointly owned.  After hearing expert evidence from two arborists and a landscape architect, and reflecting on the dictionary definition of “trunk,” the judge wrote that the relevant section of the Forestry Act, “includes within the ambit of the meaning of a tree trunk growing on a boundary line the entire trunk from its point of growth away from its roots up to its top where it branches out to limbs and foliage. In any event, it is not only the arbitrary point at which the trunk emerges from the soil that governs.”  Furthermore, since Ms. Hartley provided no evidence that the tree was unhealthy, her “wish to remove the tree falls short of a need to do so.”  In a subsequent decision the judge awarded costs to Cunningham and Scharper on a “partial indemnity” basis – in other words, besides having to pay her own legal costs, Hartley was responsible for paying over $13,000 of her neighbours’ costs.


Is this a conflict that should have been mediated?  There is no doubt that mediation would have been less expensive than litigation.  And since Hartley, Cunningham and Sharper will presumably continue to live next to one another they would have benefited from mediation’s ability to preserve and even strengthen relationships.  While I am a strong proponent of mediation, I also realize that it isn’t right for every case, and I do not have enough information to guess whether a mediation could have been successful in this particular case.  However Justice Moore’s decision makes it clear that if a tree is jointly owned then its future has to be determined by both owners.  His ruling should help neighbours in similar situations understand the legal landscape, so the speak, and assist them in coming to mutually agreeable decisions.

Summer 2013 Newsletter Available

My latest newsletter tells you all about "How to Escalate a Conflict" and is available on the Newsletter Archive page of Principled Dispute Resolution and Consulting.  Subscribe to make sure that you don't miss an issue!

Condo Law Digest – July 2013

Davis v. Peel Condominium Corporation No. 22, 2013 ONSC 3367 (CanLII)
Decision Date: June 7, 2013

As readers will probably know, condo board members may be removed from a board before the end of their term if more than half of all unit owners vote to remove them.  However, according to the Condominium Act, owners are not eligible to vote if, at the time of the meeting, any contributions payable with respect to their units have been in arrears for more than 30 days.  A group of owners at PCC 22 requested a meeting with the intention of removing the board.  At the meeting, held in October 2012, the lawyer representing the corporation ruled that 12 proxy votes were ineligible due to unpaid accounts, relying on records supplied by the property management company.  The group that had requested the meeting brought their own lawyer.  She objected to the first lawyer’s appointment as chair of the meeting (on the grounds that the person who appointed him was not authorized to do so) and was herself elected chair by a majority of those present.  Based on updated information, she ruled that the 12 proxy votes were indeed eligible and the board was voted out.

Ms Davis, a unit owner, brought an application alleging that the second lawyer had acted in bad faith and had allowed “ballots in the box that should not have been in there.”  The judge rejected the application.  He reviewed the information that the second lawyer had used to accept the proxies and ruled that three had been incorrectly allowed.  Yet given the margin of victory in favour of removing the directors, these incorrectly accepted proxies did not make a difference to the outcome of vote.

Comment: An accusation of bad faith is serious; persons are presumed to act in good faith unless proven otherwise.  (See the Supreme Court of Canada ruling in Blair v. Consolidated Enfield Corp.)

Taipaleenmaki v. M.T.C.C. 1053, 2013 HRTO 1100
Decision Date: June 20, 2013

In December 2010, Ms Taipaleenmaki, a unit owner, was asked to remove a Christmas plaque from her door.  She filed an application with the HRTO alleging discrimination on the basis of creed.  The application was settled at mediation one year later.  In the current application Ms Taipaleenmaki alleges a pattern of harassment by the Board that is a reprisal (or threat of reprisal) for the earlier complaint.  She submits that the Board has refused to meet with her on a number of occasions to discuss a wide variety of issues (including a new non-discrimination policy, the Privacy Act, a monthly maintenance fee increase, window washing, and the Veterinarians Act of Ontario, to name a few), that the president of the Board ignored her questions at condominium meetings, and that several of her postings to the condominium’s website were removed.

The Adjudicator dismissed the application as having no reasonable prospect of success. Ms Taipaleenmaki provided no evidence that the Board’s actions constituted a reprisal or attempt at reprisal.  Although the Board declined to meet with her, they suggested that a Committee meeting or Town Hall meeting would be a more appropriate forum for her concerns.  When Ms Taipaleenmaki’s posts were removed from the condo’s website, a letter from the Board’s lawyer advised her that these posts were defamatory and asked her to abide by the rules for posting.  While there are a number of outstanding disagreements between Ms Taipaleenmaki and the Board, and she feels aggrieved, the HRTO cannot deal with general allegations of unfairness.

Comment: Disagreements in themselves are not necessarily evidence of human rights violations.

Condo Law Digest - June 2013

York Condominium Corporation No. 62 v. Superior Energy Management, 2013 ONSC 2615
Decision Date:  May 6, 2013

In May 2008 a representative of the property manager for YCC 62 entered into a fixed-price contract with Superior Energy Mgm’t for the supply of natural gas.  The property manager had not been authorized to do this and the Board of Directors never ratified the contract.  (Condominium corporations cannot contract unless there is a resolution of the Board.)  In July 2009, and then several times over the next few months, a representative of the property manager contacted Superior at the Board’s request, taking the position that the contract was not valid.  Superior did not respond to any of these attempts at communication, nor to a demand letter written by the Board’s counsel in November 2010.  In Sept 2012 the Board issued an application in the court.

Counsel for both parties agreed that the hearing should be limited to the question of limitations, with reference to sections 4 & 5 of the Limitations Act.  Counsel for YCC 62 argued that the 2-year limitations period should begin in November 2010, when the demand letter was sent.  The judge disagreed and dismissed the application. He found that the limitations period began, at the latest, in fall 2009, when the property manager wrote to Superior, taking the position that the contract was not valid.

Comment: Act promptly if you have concerns about the validity of a contract.


Judge v. Baywood Homes, 2013 HRTO 727
Decision Date: May 1, 2013

In early 2009 Mr. Judge and his wife decided to move out of their home and into a condominium.  They met with the sales staff of Baywood Homes, who told them that, if they purchased a unit, they would be given two  parking spots: one in front of the building and one farther away.  Mr. Judge was keen to have a parking spot in front of the building because of a number of health problems, including severe chronic pulmonary disease and a bad back.  Although Mr. Judge mentioned his bad back to the sales staff, he did not tell them about his other health problems, nor make a connection between them and his desire for a parking spot in front of the building. Mr. Judge did not add a provision about the parking spot to the Agreement of Purchase and Sale. The Judges took possession of their unit in July. When the parking lot was completed and marked in September, they found that both parking spots were a good distance from the front door.  Their counsel sent a letter to the vendor’s counsel, requesting a parking spot next to the building, but without mentioning Mr. Judge’s disabilities. The vendor refused.  Mr. Judge filed an application with the Ontario Human Rights Tribunal, alleging discrimination with respect to housing on the basis of disability.

The Adjudicator dismissed the allegation.  While he was satisfied that Mr. Judge had a disability, Mr. Judge failed to make his disability known to Baywood Homes.  Because Mr. Judge did not do this, he did not trigger the vendor’s duty to accommodate.  While the Adjudicator was sympathetic to the Judges’ feeling that the vendor had failed to fulfill an oral promise, he found that he had no jurisdiction over the matter.

Comment: The HRTO and the courts have repeatedly found that persons seeking accommodation must makes their needs known, and it is this notice that triggers accommodation.

The Photographer, the Telephoto Lens, and the Angry Neighbours

When photographer Arne Svenson was given a telephoto lens by a bird-watching friend he was keen to try it out and hit upon what seemed to him an excellent subject:  His neighbours across the street.  Svenson lives in lower Manhattan, and the building facing his is made up of floor-to-ceiling windows.  At any time he could see three floors of urban family life and he documented a great deal of it over a year and a half.  The telephoto lens captured couples having breakfast, children squabbling, people retreating to the bathroom to talk on cellphones, someone taking a nap on the couch, and other vignettes of daily life.  The neighbours found out about Svenson’s project when some of the photographs were displayed in a gallery and the exhibit was written up in a local newspaper.  They were shocked and angry to find themselves unaware photographic subjects and some are considering legal action.

Before Svenson embarked on the project he consulted a lawyer and was apparently told that there was little expectation of privacy in a city as crowded as New York.  I find this a little surprising.  Many of the previous cases involving the rights of photographic subjects involved photos taken in public places, and I would have thought that there was a basic right to privacy within one’s own home.  Nonetheless, it is a little depressing that Svenson’s mulling over the ethics of his project seems not to have gone beyond consulting a lawyer.  Not that I have anything against lawyers.  It’s just that legality should be a minimal requirement for an action, not a signal to barge full-steam ahead.

I have read a few discussions of the case, and they are mainly of the “hand-wringing” variety.  They combine a discussion of legalistic issues with consideration of the photographs’ artistic value.  Are the photos “good enough” to justify the incursion of privacy, if indeed the neighbours’ expectation of privacy in their homes was reasonable?  (At least a few people seem to think that it was not.)  Many of the commentators find themselves torn.  They admire the photos yet empathize with the neighbours’ feelings of anger and violation.

These discussions neglect some important matters.  Recently in a few places I’ve seen the advice offered that it is better to ask forgiveness afterwards than to ask permission before.  In other words, do what you want, act now and worry later about the consequences and those whom you may have hurt.  (Not that I know whether or not Svenson has asked for forgiveness.  He is said to be “surprised and upset” by his neighbours’ response.  Really?)

For me, the ethical crux of the matter is that Svenson has treated his neighbours in a way in which they could not possibly have consented.  One cannot consent to be secretly photographed.  And Svenson did this not once or twice, but repeatedly, over about eighteen months.  Then he compounded this error by displaying the photographs publicly, again without asking permission of his subjects.  Even if some of his neighbours admire the photographs, they probably feel like they have treated as a means to an end – in other words used.  Small wonder that they are upset.

Still, I hope that Svenson and his neighbours will find a resolution outside of a courtroom.  I hear that there are some great mediators in New York City.

Hat tip: I first read about Arne Svenson and his neighbours in Raffi Khatchadourian’s “Talk of the Town” piece titled “Stakeout” in the May 27, 2013 issue of The New Yorker.  I have decided not to provide a link to the photographs.

"Bad Faith" - What it Means for Condo Board Members

 My earlier post on Mediation and Bad Faith Bargaining is one of the most-read on this site, so when a couple of recent legal decisions relevant for condominiums invoked "bad faith," I knew I had to write about it again.

Section 37 (1) of the Condominium Act specifies that every director and officer shall act “in good faith.”  What does this mean and how might it apply?  “Bad faith” is a slippery concept and is difficult to define precisely.  Basically, a person acts in bad faith when he or she intentionally infringes upon another’s rights, or intentionally fails to honour legal or contractual obligations.  The role of “intention” is key.  Acting in bad faith is different from failing to understand that you have obligations or being mistaken about them.

“Bad faith” is more than an abstract legal issue, as a number of condo board members have found out to their cost.  In two recent decisions judges have held condo board members personally responsible for court costs because they failed to act in good faith.  A look at these cases helps clarify condo board members’ legal responsibilities, as well as their obligations to unit owners.

The first case (Boily vs. Carleton Condominium Corporation 145) began innocently enough, with modifications to a courtyard.  The Board took the position that the changes were “simple repairs” and so required approval of a simple majority (50%) of unit owners.  A group of owners took a different view when they saw the proposed changes.  To them, the modifications looked like “substantial changes” that would require the approval of 2/3 of the owners, and so they attempted to organize a special owners’ meeting to present their concerns to the Board.  The special meeting would be held at the same time as the meeting the Board had already scheduled to vote on the courtyard modifications.

Here is when the Board’s shenanigans began: They refused to recognize that the owners’ had the correct number of signatures to requisition the meeting, and they initially refused to hand over the list of registered owners.  They did not move from their position that the approval of 50% of owners would be enough for the changes to go through, and advised that demolition would begin the day after the meeting.  The group of owners who opposed the changes sought an injunction to stop the demolition.  This was granted by a judge on June 22, 2011, with a promise to decide on the rest of the application on June 29, 2011.

It would seem that cooler heads prevailed after the injunction was granted.  The Board and the group of owners, together with their lawyers, reached an agreement, formalized in “Minutes of Settlement.”  The Board agreed not to proceed with the modifications unless they received the approval of 2/3 of the owners.

But the story does not end here.  When the Board failed to receive the 2/3 majority that it needed, they took the position that the “Minutes of Settlement” was not binding, and that they would wait for the judge’s decision on June 29.  The group of owners brought a motion to enforce the Minutes of Settlement, which the judge granted.  He also decided that the costs incurred to enforce the settlement ($13 560) were to be paid by the board members personally because they had acted in bad faith.  The two main factors in his decision were the Board’s actions regarding the special meeting (their refusal to recognize its legitimacy and their delay in providing the list of owners) and their attempt to wriggle out of the agreement that their own solicitor had negotiated on their behalf.

The second case (Middlesex Condominium Corporation 232 vs. Owners) is similar to the first.  Again, problems arose out of proposed repairs to the condominium – repairs that everyone agreed were necessary.  The Board had decided on a repair plan that would cost $750 000 and require the corporation to borrow $600 000.  A group of owners asked to see the relevant documents, to have time to study them, to post notices about the proposed repairs, and to have the Board suspend negotiations with their chosen contractors.  While the Board’s lawyer provided supervised access to the documents, the other requests were denied.  At the Annual General Meeting, the Board’s bylaw to authorize the $600 000 loan was defeated.  Then the owners held a specially requisitioned meeting where a new board was voted in.

Can you guess what happened next?  The old Board refused to recognize the legitimacy of the new Board.  In an attempt to get around the inconvenient fact that they had been voted out, the old Board filed an injunction with the court to have an administrator appointed.  The judge refused.  He said that the owners’ attempts to get a Board more responsive to their concerns was “entirely understandable and reasonable,” and that the injunction was brought with the sole purpose of preventing the owners from exercising their rights.  Because the application for the injunction was “tenuous and without merit,” he found the five members of the old Board personally responsible for $15 000 in costs.

What are the lessons here?  Probably the members of both Boards (Carleton 145 and Middlesex 232) thought they were doing the right thing and acting in the best interests of owners.  But this is not the point.  Condo Boards serve at the behest of owners.  Acting without the support of owners, or (worse) attempting legal maneuvers to thwart the will of owners, will not be looked upon favourably by the courts.  Board members must understand that, if they appeal to the courts without a legal basis for their actions they may be held personally responsible for costs if their actions be unsuccessful.  Obtaining reliable legal advice is absolutely crucial, as is keeping an open mind.  Any group of people that work together can develop a tendency to group-think, such that it is difficult to see the flaws in a plan that the group has adopted.  Being “certain” that you are doing the right thing is not enough.  And acting on that feeling of certainty, despite owners’ clear lack of support, is a very bad idea.



A slightly different version of the article appeared in the April 2013 issue of Condo Business magazine.

Condo Law Digest – May 2013

Welcome to the first of what I intend to be a monthly feature - a digest of some condo law cases from the previous month or so.

Harvey v. Elgin Condominium Corporation No. 3, 2013 ONSC 1273
Decision Date:  March 4, 2013

Each unit in this townhouse complex has a garage with a rooftop deck.  Several unit owners complained of water leakage in and around the decks.  The corporation commissioned an engineer’s report which detailed extensive structural flaws in the design of the decks and the need for repair. Mr. Harvey, one of the unit owners, charged that the repairs were not necessary in the first place, that they constituted “substantial changes” (and so required approval by 2/3 of the unit owners), and finally that the special assessments levied against owners to pay for the repairs were “oppressive”.  He sought to have the work stopped and the levies returned, and he sought punitive damages for the harm allegedly done to his credit rating when the corporation placed a lien on his unit to enforce the levy. Mr. Harvey was not represented at the trial.

Justice Leach dismissed Mr. Harvey’s action and his claim for punitive damages.  He found that the board’s decision to repair all of the decks had been well-founded.  The repairs did not constitute substantial changes, but rather fell within the definition of remedial work under s. 97(1) of the Condominium Act.  He rejected Mr. Harvey’s request for an oppression remedy, noting that the meanings of “oppressive,” “unfair” and “prejudicial” in the legal context differ from their ordinary language meanings. (Justice Leach referred here to Walia Properties Ltd. v. York Condominium Corporation No. 478).  He did not make any decision regarding costs.

Comment: Owners are well-advised to consult with a lawyer before commencing any action against a condominium corporation.



Kong v. Toronto Standard Condominium Corporation No. 1959, 2013 HRTO 687
Decision Date: April 24, 2013

On August 31, 2011 Ms. Kong and the corporation reached an agreement with respect to an application with the Human Rights Tribunal of Ontario.  The corporation agreed to caulk and seal the outside of the window of Ms. Kong’s suite, and to reimburse her for up to $3500 for the cost of repairs and other changes to her unit to improve air quality.  Ms. Kong filed an Application for Contravention of Settlement, charging that the window repairs had not been done to her satisfaction because she continued to be bothered by the presence of second-hand smoke in her unit. Furthermore, she had not been reimbursed for the repairs to her unit.  The corporation argued that no timeline for reimbursement had been set out in the original agreement.

The Adjudicator dismissed the Application for Contravention of Settlement, but directed the corporation to reimburse Ms. Kong immediately.  Although no timetable for reimbursement was specified, a standard of reasonableness was implied. The Adjudicator found that the corporation had fulfilled the agreement by caulking and sealing the window.  The written settlement did not assure or guarantee that the presence of all second-hand smoke would be eliminated.

Investigations Gone Wrong!

What do these situations have in common:

• Sally, one of your employees, accuses her co-worker Bob of sexual harassment.
• A warehouse inventory reveals that supplies are missing.  You review footage from the security camera, and it looks like Mike has been removing company property without permission.
• Jessica and her boss Mary never hit it off.  Now Jessica comes to you in tears, with a doctor’s note, requesting a leave of absence for stress.  She attributes her ill-health to Mary’s persistent harassment.

In each situation, the employer must undertake an investigation, and bungling the investigation could have serious legal and likely financial consequences.

A couple of recent decisions highlight the need for a fair investigation carried out by a neutral party.  (Please note that I am not a lawyer and none of this is intended as legal advice.)

Here are some things to keep in mind:

You must inform the respondent (i.e. the person who is accused of harassment, etc.) of the accusations against him or her.

In Elgert vs. Home Hardware Stores, Elgert was accused of sexual harassment by a young woman he supervised.  The investigator (more about him later) interviewed the alleged victim and some of her associates, and on that basis, fired Elgert, without ever telling Elgert what he was accused of doing.  Instead, the investigator repeatedly told Elgert, “You know what you did.”  Elgert was escorted off the premises and not allowed to return to collect his belongings.

If the investigator had done a little more digging, he might have found that the complainant (the woman who made the accusation against Elgert) had been heard to say that she would “get even” with him after he gave her a negative performance review and moved her to a work area away from a young man in whom she had a romantic interest.  I can’t provide every detail of Home Hardware’s bungling of this case, but suffice it to say that an Alberta jury awarded Elgert two years’ pay in lieu of notice and substantial damages.


After informing the respondent, you must give him or her a chance to tell their side of the story.

Home Hardware is not the only employer who failed to realize that there might be another side to what looked like a clear case.  Allied, a maintenance company, terminated five employees after a surveillance video seemed to show the men removing cans of soda from a vending machine on a client’s property by reaching up into the dispenser.  Allied argued that its policy of zero tolerance for theft justified the firings. 

However at the hearing before the Labour Relations Board of Quebec a representative of the soda company testified that the machine in question was known to be faulty and that cans of soda would sometimes get stuck in the dispenser or not be released at all.  Moreover, the amount of money in the machine corresponded pretty closely to the cost of the missing cans.  The Labour Relations Board overturned the terminations.  No word yet on damages for the employees.

Hat tip:  I first read about this case in a blog post by Diana Theophilopoulos who is a lawyer with Stikeman Elliot in Montreal. 

It is not enough that the investigator is a neutral party.  The investigator must also be perceived as being neutral.

Back to Elgert vs. Home Hardware Stores:  The executive who was given the task of investigating the complaint against Elgert had no training in investigating sexual harassment complaints.  What’s worse, he turned out to be an old friend of the complainant’s father. 

Even if the executive were a thoroughly trained and highly experienced investigator of such claims, he should not have been selected for the job.  Many reasonable people would argue that, as an old friend of the complainant’s father, it would be difficult for him to remain neutral.  This is not to say that such a relationship would inevitably mean that the investigator was biased.  It is enough that the relationship raises a reasonable doubt about his neutrality.  In other words, it doesn’t pass the “smell test.” 

Think carefully about the investigator’s mandate.  Is this primarily a legal issue, or is the organization’s reputation also at stake?

You may have read about Mike Rice, the university men’s basketball coach at Rutgers who was filmed behaving in an abusive manner towards the young men on the team.  It turns out that Rice had been investigated for abusive behaviour before the video surfaced.  But the investigators’ mandate had been to discover whether Rice perpetrated a “hostile work environment.”  (The answer was no, largely because student athletes are not “employees”).  The investigation focused on a narrow, legalistic question, rather than on wider issues of whether Rice’s conduct made him appropriate as a representative of the university and a suitable role model for young athletes.  Rutgers has had legal costs in getting out of the mess; more importantly, its reputation has suffered.

The main lesson for employers:  Investigations are serious matters.  Personal reputations are at stake and the stress level – even for those not directly involved – is likely to be high.  If an investigation is warranted, do it properly to avoid future legal hassles and costs.

Related Posts:

Bill 168 – Investigating Complaints under your Policy

Workplace Sexual Harassment: A Problem for Management 

Bill 168: A Recent Arbitration Decision

Note:  I offer investigations of complaints related to workplace harassment, bullying, sexual harassment, and other matters covered under bill 168.  See my website for more information, or contact me directly to discuss the situation in your workplace.

Defining Workplace “Harassment” – Another Decision

In Ontario’s Bill 168, “harassment” is defined as a course of “vexatious” (bothersome) comment or conduct that is unwelcome, or ought reasonably to be known to be unwelcome. But what does this mean in practice and how might it apply to your workplace? I wrote last summer about an arbitrator’s ruling that provided some guidance as to the law’s scope and application. That case focused on a nurse’s harassment of her co-workers. Here I summarize another relevant case, heard by the Labour Relations Board. This time the allegations were of harassment by a supervisor.

(I should note: Patrick Kelly, the vice-chair of the Labour Relations Board, made a number of rulings regarding this case. The latest one is here. Many of them have to do with jurisdictional issues. I have focused on his reasonings regarding harassment, and I have omitted and simplified the more technical (nerdy) legal issues. As regular readers of this blog already know, I am not a lawyer and none of this is meant as legal advice! If you are concerned about your rights in the workplace, contact your union representative or an employment lawyer.)

Background:  The applicant (I will call her “Jane”) had been employed as a social worker in a nursing home for about seven months when a new Administrator took over.  (I’ll call the new boss “Mary.”)

Allegations:  Jane alleged two incidents of harassment.  Mary told Jane several times that she was to document every conversation she had with a resident’s family members, for the purposes of any legal actions that might be brought against the Home.  Jane told Mary that she was having trouble keeping up with all of the necessary paperwork (the “Resident Assessment Protocols”).  Mary told her to work harder, and to put in extra hours if necessary, in order to finish everything on time.  She also said that Jane might face a suspension if she couldn’t complete her work on time.

In another incident, Jane alleged that the Home’s Director of Care yelled at her during a meeting to discuss a resident’s treatment plan.  Two days after the meeting she was given a written warning for failure to cooperate with the Director of Care.

After these two incidents, Jane wrote an email to a number of people in the senior management team, expressing concern that Mary did not have a good understanding of the social worker’s role.  She asks for “support” in dealing with Mary.  Shortly after this, Jane’s employment was terminated.

The Decision:  Mr. Kelly found that the two incidents Jane described did not constitute workplace harassment.  The second incident – where the Director of Care yelled at Jane in a meeting – was “rude” but not an example of harassment.  (If you remember from the definition, harassment is a “course” of vexatious conduct or comment, rather than a single incident.) 

What about Mary’s requests to Jane to document conversations with residents’ families and her threat that Jane would face termination if she could not finish her work on time?  Again, this does not fall under the definition of harassment, and Mary’s expectations of Jane were not unreasonable.  As Mr. Kelly put it, Mary “made a blunt, unflattering assessment of [Jane’s]  performance and demanded in no uncertain terms that she fulfill management’s work expectations or risk discipline.”  While acknowledging that Mary could have shown “greater tact and sensitivity,” Mr. Kelly stressed that sometimes the exercise of management has negative consequences for workers, but that does not make it harassment.

Lessons for Employees:  Try to work things out with your boss before going over his or her head.  If you do go over your boss’s head, don’t be surprised if senior management sees things differently than you do.

Lessons for Employers:  While the actions I have described here may not fall under the legal definition of harassment, they are not good management practices either.  I suspect that these incidents and the resulting appeal to the Labour Relations Board were bad for morale and an irritation for management.

Note:  I offer investigations of complaints related to workplace harassment, bullying, sexual harassment, and other matters covered under bill 168.  See my website for more information, or contact me directly to discuss the situation in your workplace.

Review of Who Gets What: Fair Compensation after Tragedy and Financial Upheaval by Kenneth R. Feinberg

Money is the medium of exchange, and it is the means by which victims in the civil justice system are made “whole.”  Even those who everyday speak of the “value” of injuries and cases (including lawyers, mediators, arbitrators and adjustors) must pause sometimes and find this strange.  Pain and loss seem incommensurable such that any monetary “value” put on them can only be arbitrary.  And yet how else might victims be made whole, if not with money?

Kenneth Feinberg has probably had more opportunities to ponder these questions than any of us.  He has had a remarkable career as an arbitrator in the aftermath of terrible and large-scale crises.  In 1984 he was appointed special master of the settlement that ended the class action suit of 250,000 Vietnam veterans against the manufacturers of the defoliant Agent Orange.  Years later he acted as head of the September 11th Victim Compensation Fund and was the target of considerable anger and frustration, when, as was certainly inevitable, there was disagreement over whom should be compensated and what compensation would be fair.  Either of these positions would have given Feinberg a abundance of experience and material for reflection.  Yet these two positions do not exhaust his experience.  He also managed the Hokie Spirit Memorial Fund (for victims of the mass shooting at Virginia Tech in 2007); he was appointed by Treasury Secretary Timothy Geithner to determine executive pay for companies that benefited from the Troubled Asset Relief Program (TARP); and he administered BP’s Gulf Coast Claims Fund in the aftermath of the 2010 Deepwater Horizon explosion and oil spill.

In Who Gets What Feinberg tells us how he came to be seen as the go-to person for resolving complex public legal disputes.  Then he reflects on his major appointments: The legal framework in which he worked and how that framework constrained him, how he arrived at decisions, and what he learned from each assignment.  (I have not read his earlier book, What is Life Worth? devoted to his tenure as special master of the September 11th Fund).  Although Feinberg has no formal training in alternative dispute resolution, his methods will be familiar to those who do.  He values his neutrality and the public perception of that neutrality.  A former aid to Senator Edward Kennedy, Feinberg was appointed to the September 11th Fund by the Bush administration, and then to the TARP assignment and the Gulf Coast Fund by the Obama administration.  He stresses the importance of listening and of making disputants feel heard.  In each assignment, Feinberg made considerable efforts to ensure that anyone who would be effected by his decisions had an opportunity to meet with him and plead their case. And when disputants are reluctant to settle their claims, Feinberg knows the issues well enough to be effective reality tester.  (He asks the lawyer of a retiring CEO if he wants his client “dragged before Congress to justify his salary as he departs?” when the lawyer has balked at accepting Feinberg’s recommendations.)  Feinberg also recognizes, as do all good mediators, that money also has symbolic value and that financial compensation is about more than a number of dollars.  This lesson is impressed upon him a number of times in his career, whether he is dealing with relatively poor Vietnam war veterans, or with wealthy Wall Street Executives (who, not surprisingly, give him his biggest headaches.)

Although Feinberg tells us something of his early life and career, I found that gained little sense of his personality though the book.  He writes well and clearly, if with little pizzazz.  Feinberg has had a unique and fascinating career as a mediator and arbitrator, and I think that anyone interested in public conflict or in alternative dispute resolution, or even in recent American history, will find the book of interest.

Apologies 201 (Advanced Course)

I wrote about apologies last January, and it seems like a good time to revisit the subject.  You can find a lot of information on the internet about how (and how not) to apologize.  You can find lists devoted to the worst ever apologies by public figures.  Admittedly, little of what I say below is original.  Still, I hope it will be useful.

1.  “I’m sorry that I…” vs. “I’m sorry that you …”

One of the key components of an effective apology is that the speaker takes responsibility for his or her actions.  If a speaker fails to take responsibility those on the receiving end of the apology are likely to be dissatisfied.  You can make sure that you are taking responsibility by formulating your apology with the words, “I’m sorry that I …”

An apology that starts with the words “I’m sorry that you …” (were offended, were upset, were inconvenienced, etc.) will do nothing to repair a broken relationship.  It might even make the other person feel insulted and resentful towards you.

This form of apology – called the “non-apology apology” is unfortunately so common that it has its own wikipedia entry.

2.  “I’m sorry if I …” 

Avoid this phrasing.  At worst, including the word “if” sounds like hedging and the attempt to evade responsibility.  At best, it makes you sound emotionally out-of-tune with the apology recipient.

Compare:

I’m sorry if I offended you.  [I’m not sure if I did or not.]

I’m sorry I offended you.  [Pause]  It certainly wasn’t my intention.

In the first, the speaker gives the impression that he or she isn’t sure that others have been offended.  There is room for doubt.  If you are not sure whether someone is offended or not, there is no harm is asking.  But apologise right away rather than waiting for an answer. 

Did I offend you?  If so, I’m sorry.

If you wait for an answer, you put the other person in the socially awkward position of having to say, “Yes, you offended me.”  It isn’t easy for most of us to say this.  It sounds confrontational.  Rather than put someone in an uncomfortable position of having to tell you that you offended them, apologize if you even suspect that you might have done so.

3.  I’m sorry but …

I’m sorry but I’ve been having a bad week …  I’m sorry but I’m under a lot of pressure at work … I’m sorry but you should have known better than to …

Where to start?  When you say “I’m sorry but…” the part that comes after “but” negates the apology.  People won’t hear “I’m sorry” because your self-justification will be ringing in their ears.

There may be a time to explain yourself and to offer testimony about extenuating circumstances.  The time to do this is not when you are offering an apology.  The apology is supposed to meet the needs of the other person.  In a proper and effective apology, one takes responsibility, offers contrition, and acknowledges the other person’s feelings.  Self-justification and explanation (if appropriate) can come later.

Compare:

I’m sorry … but I had a really bad day.

I’m sorry.  I shouldn’t have acted in the way that I did.  [Pause]  And I want you to know that I had a really bad day at work, although that is no excuse.

Which would you rather hear?

Finally, if you don’t feel sorry about something, don’t apologise.  Most people are pretty good at detecting insincerity.   A false or half-hearted apology is arguably more destructive of relationships than the lack of an apology.

Winter 2013 Newsletter

The Winter 2013 newsletter for Principled Dispute Resolution and Consulting is now available on the newsletter archive page.  Have you subscribed?  Every three months or so I share content that I don't post on this blog.  The sign-up form is on the left.  Scroll down if necessary.