Upcoming Events: Winter 2019

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The post-holiday / winter blahs usually peak around now. Why not get out and socialize with some like-minded people? Meet some new people. Share a few laughs. And learn some tips from the experts. There are plenty of great events coming up this winter. Here are the highlights:

January 2019

23rd – CCI-Eastern Ontario’s Lawyers, Guns and Money in Ottawa. If the title of this event isn’t enough to entice you, I don’t know what is! The presenters will review some of past year’s most important court decisions.

24th – CCI-Huronia’s Introduction to Condos Course in Barrie will provide basic (but important) information to directors and owners.

26th – CCI-GHC’s Beyond Mediation – Condominium Conflict Management in Burlington. I will be speaking with two of the leading condo mediators – Colm Brannigan and Marc Bhalla. This is a level 300 so space is limited. Sign up now to avoid disappointment.

29th – CCI-London’s Lunch & Learn on the Mysteries of the Condominium Authority Tribunal (CAT). Do you have questions about the CAT? This is the session for you!

February 2019

8th – CCI-GRC’s Professional Partners Lunch & Learn on Preventative Maintenance in Kitchener. This annual event includes over an hour of presentations as well as plenty of time for networking with the trades and professionals in attendance.

12th – CCI-London’s Seminar on Budgets. This course is designed to help condos prepare budgets and will include a discussion of related issues, like reserve fund contributions.

13th – CCI-GHC’s Introduction to Condominiums in Stoney Creek. This session will provide a basic overview of condominiums, property management, director responsibilities and financial issues.

March 2019

1st – CCI-GHC’s Lunch & Learn series. No details are available so you’ll have to check back for further information.

12th – CCI-London’s Climate Change: It’s Impact on Condominiums seminar. Details are not yet available, but this sounds like it could be an interesting session so stay tuned for more information!

Coming Soon – Better City Waste Collection Options for Condos in Guelph

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Last week I attended a meeting with staff from the City of Guelph’s Environmental Services department to hear about the City’s latest efforts to provide better waste collection services to multi-residential properties, including condominiums.  The City’s 2014 Solid Waste Management Master Plan Update included a recommendation that City waste collection be expanded to multi-residential properties. One of the key pieces of this recommendation – a front-end large bin collection vehicle – is set to be rolled out in the second quarter of 2019. This has taken longer than initially hoped, but better late than never, right? Continue reading

Looking Back on 10 Decisions of 2018

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Below is a brief look back at some of the most talked about cases in 2018:

Metropolitan Toronto Condominium Corp. No. 932 v. Lahrkamp, [2018] O.J. No. 311

A unit owner had commenced many legal proceedings against the condominium corporation for approximately 10 years relating to the production of documents – many of these proceedings were dismissed.  The condominium corporation successfully applied to the Court to have an order prohibiting the owner from commencing legal proceedings against the condominium corporation and its past, present, and future directors, property managers, and service providers without leave of the Court.  Note that the unit owner was not prohibited from bringing legal proceedings before the Condominium Authority Tribunal (“CAT”) and did so later in 2018…the owners application before the CAT was dismissed.

Jones v. 2341464 Ontario Inc., 2018 ONSC 717

A developer/vendor attempted to unilaterally terminate an agreement of purchase and sale for a pre-construction condominium unit due to delays in construction.  The Court found that the provisions in the agreement of purchase and sale that allowed the developer/vendor to unilaterally terminate the agreement of purchase and sale had been removed by a valid amendment and that the developer/vendor was required to perform its obligations set out in the agreement of purchase and sale.

Simcoe Standard Condominium Corp. No. 431 v. Atkins, [2018] O.J. No. 2986

Two condominium corporations were ordered to call requisitioned meetings of owners because of a special assessment levied by the condominium corporations. The condominium corporations had refused to call the meetings of owners because they alleged the requisitioning owners had obtained the necessary signatures to requisition a meeting of owners by disseminating misleading information.  The Court was not persuaded by the evidence presented to support such an allegation and found no reason for the condominium corporations to refuse to call meetings of owners in accordance with section 46 of the Condominium Act, 1998.  Further, the condominium corporations asked the Court to prohibit the use of proxies during the requisitioned meetings of owners as a result of the dissemination of misleading information. The Court refused to do so finding that the communications were not misleading but rather expressed an opposing view. The Court also questioned if it had authority to “deny owners the statutory right to vote by proxy.”

Janet Cangiano v Metropolitan Toronto Condominium Corporation No. 962, 2018 ONCAT 7

A unit owner had requested to audit the proxies recently used to elect directors to the board of directors without redaction. The CAT refused the request of the unit owner as clause 55(4)(d) of the Condominium Act, 1998 provides that the ability of an owner to examine the records of the condominium corporation does not apply to “any portion of a ballot or proxy form that identifies specific units in a corporation or owners in a corporation unless a by-law of the corporation provides otherwise”.

Peel Standard Condominium Corporation No. 984 v. 8645361 Canada Limited, 2018 ONSC 4339

After obtaining an order prohibiting a commercial unit owner from harassing the condominium corporation’s board members, employees and managers and multiple orders from the Court, the condominium corporation successfully obtained an order requiring the owner to vacate and sell the commercial unit for any reasonable offer.  The Court also granted the condominium corporation the ability to apply for possession of the commercial unit if the owner did not comply with the conditions of the Court’s order.

Toronto Standard Condominium Corporation No. 2256 v. Paluszkiewicz, 2018 ONSC 2329

A condominium corporation asked the Court to set aside the decision of an arbitrator with respect to the validity of improvements made to a unit authorized by a section 98 agreement. The section 98 agreement was authorized by the declarant appointed board and called for the production of detailed drawings and further approval of the board prior to renovations commencing.  The owner argued the required plans were submitted to the declarant appointed board provided and the evidence of the condominium corporation was not sufficient to persuade the Court to set aside the decision of the arbitrator.

Patterson v. York Condominium Corporation No. 70, 2018 ONSC 3735

The Court dismissed an owner’s effort to force the condominium corporation to raise the common expenses, among other requests.  The Court found that the decision process of the board of directors met the standard of care required under section 37 of the Act and that the Court should not substitute its own reasoning for that of the board of directors.

Noguera v. Muskoka Condominium Corporation No. 22, 2018 ONSC 7278

An owner had commenced construction to remove a demising wall between units with the board or director’s permission.  A subsequent board of directors asked for the owner to enter into a section 98 agreement and wanted to review/alter the decision and decision making process of the previous board of directors.  The owner brought an oppression and was permitted to complete construction but was required to enter into a section 98 agreement.

Terence Arrowsmith v Peel Condominium Corporation No. 94 2018 ONCAT 10

An owner made a request for records relating to the removal of mould from the sauna and mailroom.  The condominium corporation did not provide the requested records despite conceding the owner was entitled to such records on the basis that the owner had not properly completed the mandatory request for records form.  The CAT ordered the documents to be provided and award costs (which included an award for the owner’s time spent participating in the process) to the owner. The CAT also went on to impose a monetary penalty on the condominium corporation as a result of its failure to provide records without reasonable excuse.

End of Year Recap: Top Posts of 2018

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It is that time of year again: time to reflect on the most popular posts of 2018. Just like last year, I expected that this year’s hot topics (cannabis, electric vehicles, and the amendments to the Act) would dominate the list, but that was not the case with one exception (you’ll need to keep reading to find out what it is). Interestingly, one of the top five posts was also on the list in 2017 and 2016. Can you guess the topic? Continue reading

Nipping a Budding Industry: Regulation of Cannabis in Commercial Condominiums

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After the initial rush for implementing cannabis smoking rules in units has passed, condominium corporations should begin to shift some focus to regulating cannabis-oriented activity in commercial condominium units. With over a month since the Government of Canada legalized recreational cannabis use on October 17, 2018, the Government of Ontario has so far only legalized cannabis sale through the Government’s online store, Ontario Cannabis Store (OCS). However, the Government is planning on legalizing and regulating brick and mortar stores April 1, 2019. Continue reading

Common Errors with the Amendments: Part 3

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We posted previously about some common errors and misconceptions that we have run into since the Act was amended last year. We are still encountering issues regularly. Given the complexity of the regulations is it any wonder we are still encountering mistakes and misconceptions? Here are some of the most common issues we have encountered so far:
Myth: If a candidate makes a disclosure prior to her election or appointment she is automatically disqualified. For instance, if a candidates checks off the box that says “I am not an owner” the candidate cannot be on the board.

Continue reading

Highlights from the 22nd Annual CCI-T Conference

 

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It was a pleasure for the Robson Carpenter team to see and chat with many familiar faces at the conference this past weekend. The conference was full of fantastic exhibitors and informative sessions on a broad spectrum of issues, challenges, and anticipated changes in the condominium industry. There were so many great speakers, panels, and topics in the various sessions that I often wished I could be in two places at once to listen in on concurrent sessions!

In no particular order, here are some of my favourite moments and takeaways from the conference:

Discussion of Security Issues

I particularly enjoyed the Q&A style insights, advice, and perspectives from the panel in “Palace or Prison: Security Through Environmental Design” with security topics ranging from lighting, mirrors, cameras, and signage, to communication systems for communities. Of note, the panel’s emphasis on unique situations and issues for different types of condominium communities from massive high rises to townhouse complexes was very engaging.

Proxies

It was interesting, if unsurprising, to hear numerous speakers and people I interacted with on the tradeshow floor express ongoing frustration with the length and complexity of the new prescribed form. Clearly this form continues to be a source of frustration for managers, boards, and owners. On the bright side, representatives from the Condominium Authority of Ontario (“CAO”) did highlight they have created an information guide as well annotated sample proxies available on their website (link here https://www.condoauthorityontario.ca/en-US/resources/proxy-overview/ ) to assist owners in understanding how to fill out these forms. Hopefully more refinements to the form are planned by the government in the future.

CAO and CMRAO Statistics

Interesting numbers on the 1st Year of the CAO and Condominium Management Regulatory Authority of Ontario (“CMRAO”) – representatives of the CAO and CMRAO shared some fascinating statistics about their respective 1st anniversary of operation:

  • The CAO’s database estimates there are over 11,000 condominium corporations in Ontario. Of those, 85 % have registered with the CAO and 84% have provided the required returns (transitional and annual)
  • Over 2,800 licensees registered with the CMRAO
  • Over 300 condominium management companies with 3 companies employing over 100 property managers each.

The Condominium Authority Tribunal (“CAT”) which currently has jurisdiction over records disputes under section 55 of the Condominium Act, 1998 (the “Act”) already has 127 active cases. We previously posted about some of the first decisions released by CAT here (link).

Quorum

There were some interesting questions and discussions in one session regarding condominium corporations that have passed by-laws increasing the quorum threshold from the 25% required by the Act for the 1st and 2nd attempts to call an owners meeting. My opinion, and one shared by a few other lawyers I have spoken to, is that the most recent amendments of the Act in subsection 50(1.2) have voided those higher quorums (ex. 33 1/3 %) thresholds in by-laws. Quorum can be no more than 25%. If a corporation wants to increase the threshold from 15% on the 3rd and subsequent attempts to call an owners meeting, the quorum increase is restricted to remaining at 25% by 50(1.2) of the Act.

Exhibitors

On a final note, the exhibitors with booths that had a live-magician, hockey memorabilia collection, and handwriting analyst were captivating and very popular draws for many.

If you weren’t able to attend this year’s conference, don’t forget the Golden Horseshoe chapter of CCI has its annual conference coming up in the spring of 2019. We will have a booth and both Craig and Michelle will be speaking.  Definitely something to look forward to attending as we slip into the winter season!

Terminating Agreements in Condos

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There has been some talk about a recent decision of the Court of Appeal that discussed the duty of honest performance. The duty of honest performance “requires the parties to be honest with each other in relation to the performance of their contractual obligations”. This is not the first case to discuss this obligation, but it an important case for the condo industry.

A little about the case first. A contractor provided services to ten condominiums as part of a shared facilities agreement. There were two agreements. One for summer maintenance and one for winter maintenance. The winter agreement permitted the condominiums to terminate on 10 days’ notice to the contractor. The condominiums decided to terminate in March or April of 2013, but did not provide notice to terminate to the contractor until September after he had provided services at no charge to the condominiums as an incentive to renew the agreements. The contractor sued for breach of contract.

The Court of Appeal found in favour of the condominiums. While the condominiums may have failed to act honourably in delaying the termination and accepting the “freebies” when they knew they planned to terminate the agreements, their conduct did not rise to the level required for breach of the duty of honest performance. According to the terms of the contract the condominiums were required to inform the contractor of the decision to terminate and give him 10 days’ notice. As the Court said, “[t]hat is all the [contractor] bargained for, and all that he was entitled to.” Accordingly, the contractor’s claim for breach of contract was unsuccessful and the condominiums were awarded legal costs of $10,000.00 for the appeal and their legal costs of trial.

The case highlights the importance of reviewing agreements carefully before signing them to make sure you get what you bargained for. Even though the condominiums were ultimately successful, the case is a good reminder of how easy it is for a condominium to get into trouble when terminating an agreement. In many cases, condominiums terminate agreements without any legal advice and only seek our help after they’re in trouble. Here are some suggestions to help you avoid trouble in the first place.

Terminating Contracts – Condo Act Rights

The Act describes the termination rights of condominiums in some cases. For instance, some agreements entered into before the owners elect a new board at a turn-over meeting may be terminated by a condominium even if the agreement does not contain a termination clause. The requirements for termination, such as the notice period, vary depending upon the type of agreement. For instance, a management agreement can be terminated with at least 60 days written notice to the management company.

In some cases the agreement may only be terminated within the first 12 months after the turn-over meeting is held. A mutual use agreement may be terminated within 12 months following the turn-over meeting, but only if a judge of the Superior Court determines it is necessary to amend or terminate the agreement because the disclosure statement did not clearly and adequately disclose the agreement and the agreement is oppressive or unconscionably prejudicial to the condominium or the owners. Other agreements, such as those where the condominium receives goods or services on a continuing basis (i.e. snow removal), can be terminated with 60 days notice within the first 12 months following the turn-over meeting where the owners elect the new board.

An insurance trust agreement can be terminated upon 60 days notice to the insurance trustee, despite the provisions of the declaration or the insurance trust agreement. This is not restricted to agreements entered into after the turn-over meeting.

The termination of telecommunications agreements is described in section 22 of the Act. A condominium that includes one or more residential units may terminate a telecommunications agreement if at least 10 years have passed since the later of execution of the agreement and registration of the declaration. The Act also requires the board and the owners of at least 50% of the units approve the termination. The condominium must give 120 days written notice of termination to the other party. The termination right in the Act does not apply to agreements entered into after the turn-over meeting if the agreement is non-exclusive and the agreement also for the installation of other telecommunications systems.

It is important to keep in mind the termination rights described above do not permit a condominium to terminate an easement except in accordance with the easement instrument document. Often, easements are modified on the consent of the parties. In this case, the Act has specific requirements that a condominium must follow before it grants, transfers or releases an easements. In some cases, the condominium can do so by passing a by-law. In other cases an amendment to the declaration may be required.

Other Agreements

Where the Act does not provide termination rights the parties should look to the agreement itself and general contract principles, such as the duty of honest performance described above. In some cases, the agreement will describe a process for notifying the other party of performance issues before terminating the agreement. The purpose is to provide the other party with an opportunity to remedy the issue before the agreement can be terminated. In other cases, such as with employees, there may be legislation that describes the rights of the other party upon termination of the agreement by the condominium.

In most cases it is wise to have a lawyer review the agreement before providing notice of termination to the other party. The lawyer can help you determine the termination rights of the parties (i.e. applicable notice period) and advise you of the consequences for terminating an agreement early (i.e. being sued for breach of contract).

Upcoming Condo Conferences

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November is going to be a busy month in the condo industry with three conferences! Yes, you heard me right – THREE!

The CCI National kicks off the month with its Fall Leaders’ Forum in London November 8-10.  Apart from the Leaders’ Forum sessions there are several exciting social events planned including Big Band at the Station (CCI-N Awards Banquet) on Thursday and A Night at the Races on Friday. The 1st Annual CCI National Conference – Mental Health in Your Condo Community – will take over on Saturday. Don’t miss out on this amazing opportunity. Registration is still available. Hope to see you there!

The ACMO/CCI Toronto conference is back for its 22nd year on November 16 & 17. There will be over 200 exhibitors and dozens of great speakers. This is always one of the most popular educational events of the year so you are sure to see some familiar faces in the crowd, including some members of the Robson Carpenter LLP team.  Register now.

The CCI-EO/ACMO 2018 Kingston Condominium Conference will be held November 23 at the Ambassador Hotel in Kingston. It is sure to be a hit with topics like cannabis, electric vehicles, human rights, and a legal panel. And at $75 it is quite the steal! Register to avoid disappointment.

Don’t worry if you end up feeling exhausted from all of the events in November. Most chapters don’t have any events planned for December. Rest up. There are some exciting events coming in January.

Modified Record Request Process

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We hear complaints about the new record request process regularly from our clients and owners. The process is cumbersome with the new prescribed forms and timelines. The process takes longer than it did before in many cases (in part because it takes time for people to fill out the forms correctly). Many clients are confused about when they can and cannot charge the requester for labour and copying charges. All of these feelings are completely normal.

The regulations are confusing. Parts described in ten pages could have easily been described in one or two pages if charts were used instead of long, repetitive paragraphs referring the reader to check various other sections of the Act and regulations before they can determine the answer to what was a seemingly straightforward question. Before you know it you’ve spent 20 minutes trying to figure out the answer to a question that used to take 2 minutes.

There is a solution to all your record request problems: The condominium and owner can agree to modify the process. Hooray! Continue reading