Thursday July 1, 2004
The mulling over of the events of yesterday continues. The pressure of the last minute scrambling on both sides substantially affected my ability to consider the issues, possible outcomes and gather facts upon which to base my final decision to abandon my application for a rebate of rent.
Today I am rather dissatisfied. My perspective at the moment is that I took all the steps I could to ensure my application would at least be heard. My considerable efforts in preparation of the application were fueled by the prospect of the chance to tell my story. Although a request for compensation for the state of my residential unit and building was part of the package, the amount of an abatement only interested me for its punitive value. Entering into mediation was a step away from my first goal: being heard and getting my case on record.
I still think the other side should have been making concessions, as well. The attitude in the mediation session was that they were the wronged parties and that my application would fail because of it. Very likely all part of the mediation 'game' for which I was unprepared.
My legal advisors and the Mediator were measuring success in this endeavour quite differently. Namely money: how much I'd get compared to how much I'd asked for; how much liability I was risking; was the time spent at a hearing going to be worth the money balance?. Somewhere along the line speculations turned into statements of probability and started the downhill slide in my confidence.
The problems increased as the "mediation" turned into a mini-hearing for which I had none of the papers and evidence at my immediate disposal. It was a rather biased event in my opinion. For instance, the Mediator offered her personal opinion on the success of my application and gave much more focus to my withholding of rent than she ever once did regarding the landlords' documented repeated violations of health, safety and property standards and non-compliance with Property Standards orders, including the one that is being issued based on an inspection that took place two days before the hearing.
Regarding the withholding of rent, she sided with the other side', stating very clearly several times "You cannot withhold the rent." The guidelines on the ORHT site state that tenants should not withhold rent when maintenance is an issue because they may face an eviction hearing.
The Guideline entitled Relief From Eviction states: "The Tribunal must refuse an eviction if the landlord is in serious breach of the landlord's responsibilities under the Act or the tenancy agreement." It goes on to state that "the tenant may raise a breach of another obligation of the landlord under the Act" in an effort to gain relief from eviction.
I had all of that covered yesterday. In spades. The eviction hearing should not have been part of the mediation talks at all IMO. It was a non-issue that I could have negated on the original eviction hearing date, had I been forced to go that far at that time.
Most of the discussion revolved around the details of my application and a threat by the landlords' representative. He's not a lawyer, and even if it is easier to type, I'm not going to insult the legal profession by calling him one.
The threat was the only thing I didn't have enough information to put into perspective and was brought at the last minute: two days before the hearing that had been scheduled for over a month. But that's what increases the likelihood of a threat being useful - time pressures.
I wasn't worried much about the monetary side of the threat to claim costs against me because of supposed error in naming some people who should not have been in the opinion of those people and their legal rep. But my issues got lost in the concerns of others around this issue. My perspective on legal costs is that they are partly a normal risk in legal actions. I mean anyone can claim costs. Whether they get them is another issue.
At one point, I suggested a plan that would alleviate all of that concern and in hindsight it is still the best plan. It wasn't as interesting as a mediated settlement, but I would have been happy with it right then.
The remainder of the all day session focussed on the details of my application, none of which were deemed to be significant or relevant to the discussions at hand. When the question of "Why do you stay there if there are all these problems?" was posed by the Mediator, I started to get pissed off. When I am asked this question it is in essence a suggestion that despite the fact that the fault for the situation is not mine, my remaining and fighting for improvements in my apartment and building is the root of the problem and I really ought to just walk away. And as my first legal advisor stated: then they win. I do miss his involvement in my case.
At one point, the Mediator stated that the continued existence of violations of safety codes within the other units in my building was "not your issue." So, I should just be content that these problems have been fixed in my apartment, ignoring any effect that say, a fire caused by the electrical deficiencies in another unit could have on my own safety?
The naming of a non-existent corporation as the owner of the property in several leases? A typo, in her opinion. And even if it was not a typo, it didn't support my contention that the issue of who to name on my application was not clear.
And that confusing and illegal notice of the new landlords coming into the picture? Not confusing to her.
Most, if not all, of these statements were made in the presence of the other parties as well.
I have done nothing wrong but withhold the rent under extremely unreasonable circumstances. This is easily remedied by paying it, which was agreeable to me yesterday. And I have nothing to lose since, as I stated in the mediation yesterday, the down side of this tenancy has already occurred for me: paying market rates for substandard housing.
The landlords however, have done very little right - not normal maintenance, not complying with health, safety and property standards, not contract language, not respecting my rights. So why did I end up being made to feel that pursuing my application was ill advised, while an unplanned and short term move is much advised?
It wasn't until the end of the mediation that I understood that I was about to agree to abandon a second planned application regarding Tenant Rights by virtue of the inclusion in the written agreement of a statement that the agreement was the final resolution to all issues arising from the tenancy. When that was slipped in (but apparently assumed by everyone in the room but myself), my red flags were all up and waving.
I objected and was on the verge of stopping the process there and then but was alone in my displeasure and surprise and finally capitulated to pressure brought by several others against my gut feeling that this was not a good thing.
I will be looking for another opinion tomorrow.
Obviously I view the world very differently from most people and am often confused by their perspective. The effect is greater when I am not in possession of facts or experience with which to bolster my confidence in my own perceptions and instincts. The pressure cooker of last minute chaos magnifies this effect considerably.
That pretty well sums up what happened yesterday.
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