Infamous Neighbors: How Mediation Could Salvage the Wreckage
A recent decision of Mr. Justice Ed Morgan, of the Ontario Superior Court, has garnered as much attention for the way in which it was handled as the substance of the dispute itself.
The case of Morland-Jones v Taerk concerns a 1.8 million dollar lawsuit commenced by oil company executive John Morland-Jones and his wife Paris (the plaintiffs) against psychiatrist Gary Taerk and his wife Audrey (the defendants). The famillies are long-time neighbours residing in Toronto’s exclusive Forest Hill neighbourhood. The plaintiffs sought various forms of injunctive relief as a result of allegations that the defendants have been “misbehaving and disturbing their peaceful life in this leafy corner of paradise.”
Through Justice Morgan’s decision we learn that the plaintiffs’ house is ringed with eleven video cameras, two of which are aimed directly at the defendants’ front door and driveway. We also learn about the now famous “dog feces incident.” Ms. Taerk is captured on camera performing a “poop and scoop” procedure after her dog did its business on her own front lawn. She’s then seen purposefully crossing the street with bag in hand, walking towards the defendants’ driveway where their garbage cans were out for collection, and returning to her side of the street moments later, empty-handed. Justice Morland concludes: “There is no denying that Ms. Taerk is guilty as charged. The camera doesn’t lie.”
In dismissing the Morland-Jones motion for relief, Justice Morgan exclaims: “In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher.”
In a recent piece in the Law Times, lawyers Lee Akazaki and David Sterns offer contrasting views on Justice Morgan’s handling of the case and whether the court is the appropriate venue for this kind of dispute. Akazaki suggests that in "mocking" the Taerks for bringing the action, the judge neglected his duty to “diffuse tension between citizens” no matter how petty their claims may be. Sterns, on the other hand, felt that Justice Morgan’s ruling was the right response to a “first-world problem”, adding that court is “no place for petty squabbles.”
The way I see it, the key questions aren't whether this was an appropriate dispute for the courts or even whether the judge was overzealous in his remarks. The courtroom is a public institution open for all to use. Yes, our courts have limited resources that could be much better spent on cases of greater public importance and value, but if litigants want to air their dirty laundry in public, then it's their right to do so under our current justice system.
The more important lesson to take from this is that a rather creative mediator could have helped the parties more than a kindergarten teacher or a judge. If there was ever a dispute suited for mediation, this was it.
The parties, particularly the defendants, were caught in an escalating cycle of antagonistic behavior – purposely playing on one-another’s sensitivities and eliciting increasingly hysterical responses. While their actions may have once been without ill-intention, their mutual dislike had grown to such an extent that the parties began to intentionally aggravate each other. By the time each party had their pets leaving unkind deposits in the name of the feud, the dispute was beyond their capacity to manage without assistance.
So how might mediation have helped?
First, and maybe foremost, mediation would have offered the parties privacy. The publicity of this now-infamous case and its details has likely caused some embarrassment, and may have even further fueled the dispute. While Justice Morgan made it scathingly clear that he felt the issues were petty, the disputants clearly do not share those feelings.
Mediation could offer these parties a forum to vent and express and address their concerns, without having the public weigh-in. Mediation would allow the parties to discuss their differences and issues without having to justify their importance to either a judge or the public.
Second, mediation would have saved the parties and our strained court system time and money. Tens of thousands of dollars in legal fees were spent without realizing an outcome that will help these families move forward. Mediation may have helped the parties arrive at responsive resolution at a fraction of the cost.
Finally, while each family may wish to eliminate the other from their life, they remain neighbours. If they continue to live as neighbours, it is likely they will do so miserably unless they can come to an understanding on how to live cooperatively. While I doubt these families will ever co-chair the annual neighbourhood street party, mediation would provide an opportunity to seek understanding, establish boundaries, and maybe even present a window for peaceful co-existence.
There is a silver lining in all of this. While the court proceeding may have been a disaster, it’s still not too late to mediate.
