Commercial Litigation, Real Estate

Mackey thrives on helping resolve condo disputes

By Kate Wallace, AdvocateDaily.com Contributor

The diverse mix of people she meets and helping condo corporations resolve complex issues are the most satisfying parts of the job for Toronto condominium and commercial litigator Megan Mackey.

“It’s a real people business,” says Mackey, a partner with the Toronto office of Shibley Righton LLP, "and the issues are fascinating."

She has advised condominium corporations, unit owners, and developers, as well as acted for insurers, corporate clients, and individuals in both condominium and commercial lawsuits.

While some lawyers only represent one type of litigant, Mackey sees it as an advantage to represent them all.

“We find it gives us a better appreciation for all the different positions by acting for the various players involved,” she tells AdvocateDaily.com.

Mackey regularly appears before the Superior Court of Justice as well as mediators and arbitrators. She has both trial and appellate experience and has appeared before all levels of court, including the Supreme Court of Canada.

She particularly enjoys the problem-solving aspect of her practice.

“It’s an area of law where having a good lawyer and getting sound legal advice can really have a positive impact on the players — the unit owners, the boards and the managers — that we deal with,” she says. “It’s really satisfying.”

Mackey’s services run the gamut, from helping condo corporations repurpose underused amenities to resolving cases where there is missing or contradictory language in a declaration, to other problems with condominium documents.

She points to a current case, where two units were mislabelled at the land registry office.

“We can go to court and fix that,” she says.

Along with her practice, Mackey writes and speaks on legal issues relating to condominiums. One of her most recent publications is a guide she co-wrote for clients about new regulations under the Protecting Condominium Owners Act, which came into effect in November. The guide was a team effort by the firm's condominium group, which expanded last summer when Mackey and her a number of her colleagues moved their practice to Shibley Righton.

A large condominium group makes sense in a city where recent surveys show one in five people live in a condo, she says.

“It’s a big part of life here,” Mackey says.

The vast majority of condominiums are well-run and well-managed, Mackey says. As a litigator, though, it’s the problems that come to her.

“Sometimes as lawyers we see the worst part of condominium life,” she says. “While most condominiums are great places to live, unfortunately, we frequently encounter condos in trouble — and when things go wrong they can go very wrong.”

These include construction deficiencies, “where the corporation finds themselves embroiled in all sorts of legal disputes with the developer,” Mackey says. “We can guide the boards on how to remedy the problem, the kinds of consultants they should engage and how to fund repairs, including massive unexpected bills.”

Mackey sees cases where things get ugly — and complicated — as when a board or condominium corporation is suing owners or vice versa. In one case she was involved in, a board was taking legal action against unit owners, but then the board changed and the owners who were being sued got on the board, looking to launch their own lawsuits, “when really, everyone should have been focused on fixing the building,” she says.

“There are some corporations where different personalities or issues spark disputes. That’s where we come in and hopefully, with good legal advice and good management, they can turn things around.”

Where possible, Mackey urges clients to resolve the dispute out of court.

“We see the condominium board like a fourth level of government. They should be working towards making their community better and helping it run smoothly, rather than litigating, especially against unit owners.”

But she recognizes that boards have a tough job because they have to enforce the bylaws.

“When the owners don’t want to follow the rules and play nice, the board has no choice, but to take action.”

One of Mackey’s particular areas of focus is disputes where people are suffering noise and vibration issues caused by mechanical and HVAC equipment.

“That’s really frustrating for everyone because it’s nobody’s fault,” Mackey says. “Unit owners in those cases are relentless in pursuing a resolution because it’s their home and they have to live there. Who wants to live in a home that’s vibrating?”

Through these cases, she has gained a great deal of knowledge about acoustical engineering, part of the ongoing learning curve that makes her work so interesting.

“I have picked up a fair amount of information through my work, and we see similar issues in different buildings,” she says.

Along with the noise and vibration matters, Mackey finds oppression cases particularly interesting. She recounts one in which her client was experiencing vibration issues that the board knew about, but was not trying to resolve.

“That case was important in saying how and when must a condominium corporation take positive steps to resolve issues that may only be affecting a limited number of units,” she says. “I was happiest for the client, who was finally vindicated after years of being sidelined and ignored. I felt really good for her.”

While most boards are well-run, sometimes they need guidance, she says.

“It feels good to help point everyone in the right direction.”

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