Case Studies, Pendrell Place: Lawyer G. Stephen Hamilton threatens Oldaker

2000 October 27

G. Stephen Hamilton, the Pendrell Place Strata Corporation's lawyer with the firm of Hammerberg & Company, wrote to the solicitor of Richard B. Oldaker, an owner of a leaky rotten condo at Pendrell Place, as follows:

"There is no evidence to suggest that Pendrell Place has experienced a "premature failure of its building envelope".

For [Mr. Oldaker] to suggest that Pendrell Place is a "leaky condo" creates unnecessary stress for the owners and occupants of the building. Moreover, Mr. Oldaker's careless statements may negatively affect the marketability of the strata units at Pendrell Place.

We require Mr. Oldaker to cease and desist from any further statements that Pendrell Place has experienced a "premature failure of its building envelope" or that it is a "leaky condo". Such statements are defamatory and the Strata Corporation will take all necessary legal action to prevent Mr. Oldaker from making such statements should he continue them."

Case Studies, Pendrell Place: Robert Crowe wants to lease Oldaker's leaky rotten condo; requests assurance from Ascent Real Estate Management that moldy suite will be safe to occupy

 
Robert N. Crowe
#402 - 1819 pendrell Street
Vancouver, Bc V6G 1T3
(604) 683-2219
email: higherstandards@hotmail.com
 
 
October 17th, 2000
 
Ascent Real Estate Management Corp.
Attn: Michael Roach
 
 
Dear Mr. Roach,
 
Re: Suite 504 1819 Pendrell st. Vancouver
Water and mold repairs.
 
I'm writing you today to confirm our discussions of the past few weeks.  As you know I've sold suite 402 and will be moving out at the end of October.  About 6 weeks ago after confirming my sale, I spoke with Mr. Oldaker about renting his suite.  I understand that there is a dispute over repairs to the suite for past water damage.  I've entered into an agreement with Mr. Oldaker to occupy the suite and lease it for a minimum two years for a initial rent of $1250.00 per month.  I've been helping Mr. oldaker by opening the suite up for inspection by various contractors and inspectors.  I now understand that the consensus is, that the suite needs to be fully decontaminated prior to occupancy or storage of contents.  I'm very concerned as I've learned that mold spores have serious health implications, especially for children or those with resoiratory conditions.  As there has been no action taken to address this problem in the time that I've been involved, I'm concerned that I won't have a home to move into by October 31st.
 
I'm requesting some assurance from the Strata that work will begin soon and that at the very least the suite will be safe to occupy on November 1st.
 
I'll require a response no later than October 20th 2000, or I'll be in the position of have [sic] to find another lease elsewhere.
 
Yours truly,
 
(Signed)
 
Robert N. Crowe
 
 
 
 
 

Vancouver, Earles Station, 4590 Earles St.: Court finds reasonable perception of bias by arbitrator based on undisclosed relationships with Clark Wilson and Patrick Williams

Citation: Jensen v. The Owners, Strata Plan VR 2733 and Kelly

Date:

20001016

  2000 BCSC 1489

Docket:

L001355

Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

LEE ALEXANDER JENSEN AND DEBRA JENSEN

PETITIONERS

AND:

THE OWNERS, STRATA PLAN VR 2733 AND SHARON KELLY

RESPONDENTS


REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE R. D. WILSON

 

Counsel for the Petitioners:

B.W.F. McLoughlin, Q.C.

Counsel for the Respondent
The Owners, Strata Plan VR 2733:

Counsel for the Respondent
Sharon Kelly:


P. A. Williams


J. A. Bleay

Dates and Place of Hearing/Trial:

27 - 29 September 2000

 

Vancouver, BC

I.

[1] This proceeding is taken pursuant to the Judicial Review Procedure Act. The petitioners seek an order setting aside the award of a single arbitrator.

[2] The relief is sought on the grounds of apprehension of bias, and errors of law on the face of the record. I have concluded that the award must be set aside on the first ground. Accordingly, I need not, and do not, address the questions raised by the second ground.

II.

[3] I find the following to be the material facts on this disposition.

[4] In or about 1990, what had been a British Columbia Hydro substation was converted into a condominium complex, containing 12 residential strata lots. On 24 July 1994, Mr. Jensen acquired title to Strata Lot No. 2 in that complex.

[5] By 1996 and 1997, differences between members of the Strata Corporation had surfaced. By letter dated 3 June 1998, the Strata Council alerted Mr. Jensen to three options available to him to resolve complaints he was making. Mr. Jensen elected to proceed to arbitration as prescribed in s. 44 of the Condominium Act, the then current legislation. By letter dated 4 June 1998, Mr. Jensen informed the Strata Council of his decision. As well, he nominated Ms. Sharon Kelly as a single arbitrator. Mr. Jensen had been informed of Ms. Kelly's identity by a building consultant. By letter dated 18 June 1998, the Strata Council agreed upon Ms. Kelly as a single arbitrator.

[6] Following the appointment of Ms. Kelly, it came to the attention of the Jensens that the Strata Council had retained the services of Mr. Williams, as their counsel for the arbitration. The petitioners objected to Mr. Williams' participation on the ground of conflict of interest. It was said by the petitioners that contact had been made, with Mr. Williams, by Ms. Jensen, prior to his retention by the Strata Council. Ms. Kelly was asked to resolve that preliminary issue. Written submissions were made to Ms. Kelly on the question of Mr. Williams' conflict of interest. All of the material appears to have been received by Ms. Kelly by 31 August 1998. On 30 September 1998, Ms. Kelly issued what is entitled a "Interim Arbitration Award". In that award, she dismissed the petitioners' objection, on the ground that there was not sufficient evidence to prove a conflict of interest.

[7] What Ms. Kelly did not disclose to the Jensens, or to Mr. Williams, is that she, Ms. Kelly, had retained Mr. Williams' firm in March 1997 to act for her in a real estate transaction. Nor did she disclose that in July and August 1998, a solicitor in Mr. Williams' firm "assisted Ms. Kelly ... with a contract for the construction of a residence".

[8] Nor did she disclose to the petitioners that she was scheduled to participate in a course or event, with Mr. Williams, on 22 October 1998.

[9] At the time Ms. Kelly issued her interim award, she knew, or must have known, that she was scheduled to participate in that event. Exhibit D to the affidavit of Ms. Jensen, sworn 6 September 2000, is a photocopy of an information page containing notification of the event. The page bears the date "August 98". The notice is under the head "ADR Professional Development - Courses and Events". One of the courses or events is described as "Arbitrating Condominium Disputes". The event is scheduled for 22 October 1998 at Robson Square Conference Centre from 9:00 a.m. to 4:30 p.m. The text of the notification reads as follows:

Pat Williams, C.Arb. and Sharon Kelly will conduct the course. Pat has been involved in many condominium arbitrations as an Arbitrator and legal Counsel. Sharon has acted as an Arbitrator in condominium disputes. Pat and Sharon have different views on some matters and similar views on other matters when conducting arbitrations.

Participants will learn how an arbitration regarding a condominium in (sic) invoked, how the arbitration panel is constituted, the procedure to be followed, and the application of law to arbitration decisions.

Included in the procedure discussion will be tips on views and the experience of arbitrators dealing with the very emotional issues that appear so common when resolving condominium disputes. The costs to the parties will be addressed.

Participants will observe a complete mock arbitration which will address the problems that typically arise in condominium arbitrations.

BCAMI members who complete the course should be better able to make themselves available to individual condominium owners and Strata corporations to assist in the resolution of disputes short of having to go to Court.

[10] At the time Ms. Kelly accepted the appointment as the single arbitrator in the matter, she was an associate member of the British Columbia Arbitration and Mediation Institute. I am unable to reconcile Ms. Kelly's failure to disclose the foregoing information, to the petitioners, with s. 7 of her Institute's Code of Ethics, which counsels members that they "... shall disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality or bias."

[11] The course or event was held as scheduled. Mr. Williams and Ms. Kelly participated as advertised.

[12] Ms. Kelly's failure to disclose this information to the petitioners denied them the opportunity to address the issue very early on in the arbitration proceedings.

[13] A further opportunity to disclose that information arose in April 1999. Following a conference to deal with procedural matters in the arbitration, Ms. Kelly wrote a letter to the parties. Among other things, she said:

Lee Jensen also raised concerns respecting my treatment of Debra Jensen in the conference call today and questioned my neutrality on several matters. I am asking whether the complainant wishes to formally challenge my authority on the basis of an apprehension of bias, perceived unequal treatment of the parties or some other named reason. If so, I would request that a written letter be provided before the commencement of the hearing.

[14] By the time of that letter, Mr. Williams' firm had provided further legal services to Ms. Kelly. In February 1999, a solicitor of the firm had acted for Ms. Kelly on the sale of real property. In March and April 1999, a solicitor in the firm reviewed a contract on behalf of Ms. Kelly and drafted a demand for payment.

[15] Although Ms. Kelly was alert to the notion of "apprehension of bias", she did not disclose her previous involvement with Mr. Williams' firm, and Mr. Williams, nor her continuing involvement with that firm. Again, the petitioners were denied the opportunity to address this problem in a timely fashion prior to the commencement of the arbitration hearing.

[16] A further opportunity to address this issue was presented in June 1999. By letter dated 2 June 1999, Ms. Kelly wrote to the parties and said, among other things:

In reference to Debra Jensen's letter that was faxed to my office today, I am not aware of any "arbitration act". There is a Commercial Arbitration Act, however that Act does not apply to condominium arbitrations. In respect to Debra Jensen's question regarding B.C.A.M.I., I am not aware of who governs the practices of associations. As to who governs myself, if this question relates to any challenge in repect (sic) to my arbitrating this dispute, I refer Debra Jensen to my letter dated April 21st that outlines a procedure.

[17] The arbitrator's award was released 14 April 2000. The petitioners were unsuccessful in establishing their complaints.

[18] The petitioners did not learn of Ms. Kelly's solicitor client relationship with Mr. Williams' firm nor of her participation in the event with Mr. Williams, until after the award had been released.

III.

[19] Infinite and varied are the examples of human conduct attracting inquiries into the issue of "apprehension of bias". Not so the governing principles for the determination of the issue. They are finite and well-defined. All proceeding from the first premise that it "... is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".

[20] "Seen" contemplates observation. "... by a fair minded person"; "by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information ... [the] test is 'what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly' ..."; [the observer is not she of the] "very sensitive or scrupulous conscience".

[21] I find that Ms. Kelly's solicitor client relationship with Mr. Williams' firm, and her participation in the event of 22 October 1998 with Mr. Williams, neither of which were disclosed to the petitioners, would induce a perception of bias on the part of Ms. Kelly by such an observer as described above.

[22] Accordingly, Ms. Kelly's award dated 21 April 2000 is set aside. Costs will follow the event.

"R.D. Wilson, J."
The Honourable Mr. Justice R.D. Wilson