I’ve had a few files recently where questions surfaced about the new restrictions on who can and can’t solicit proxies for owners’ meetings. When can a manager solicit a proxy? When can’t a manager solicit a proxy? It appears some people may be unaware of the changes to the rules governing the solicitation of proxies for owners’ meetings, especially by managers and others on their behalf. Continue reading
A lot has been written about the obligation of candidates to disclose information and make certain statements prior to their election or appointment to the board of directors. The Act requires candidates to satisfy the disclosure obligations prior to their election to be qualified as directors (see section 29(1)(f) of the Act). Whether the disclosure may be made orally at the meeting or in writing depends upon a number of factors, including when the person notified the condominium of their intention to be a candidate and the condominium’s by-laws. There is no prescribed form for making the required statements in writing, but many law firms and management companies have created forms for candidates to complete prior to the election. The requirements for candidate disclosures are described in section 11.6 of O.Reg. 48/01. Continue reading
In July 2016, we wrote a post about Pearson v Carleton Condominium Corporation No. 178, 2012 ONSC 3300, a case where the condominium registered a lien against an owner’s unit for legal costs incurred by the condominium in relation to three unsuccessful small claims court actions brought by the owner. The court found that the indemnity clauses in the declaration that the condominium relied on did not apply to recovering the legal costs and ordered the condominium to discharge the lien.
We also noted a Small Claims Court decision where leave to appeal was granted because the judge relied on a general indemnity clause similar to Pearson v CCC No. 178 as authority for the Condominium to charge legal fees to the unit owner.
The Divisional Court of the Superior Court of Justice recently released its decision in Wexler v Carleton Condominium Corporation No. 28, 2017 ONSC 5697; the subject of that appeal.
While the majority of the decision deals with the standard of review for an award of costs, Justice O’Bonsawin does address the applicability of the general indemnity clause in the declaration for claiming legal costs. Specifically, at paragraph 16, she states,
In Pearson v. Carleton Condominium Corporation No. 178, 2012, ONSC 3300, the corporation submitted that the Condominium Corporation’s Declaration permitted it to recover all legal costs incurred related to the litigation by adding these costs to the common expenses of Pearson’s unit. The language in the Declaration in Pearson is very similar to that of this case. Mr. Justice Smith concluded that the article in the Condominium Corporation’s Declaration did not apply in that case because there had been no loss, damage or injury to the common elements caused by any act or omission by Ms. Pearson. I come to the same conclusion in Ms. Wexler’s case; Declaration X is not applicable as there has been no loss, costs, damage, injury or liability suffered or incurred with respect to the common elements and/or all other units caused by an act or omission by Ms. Wexler.
The provision in the declaration Justice O’Bonsawin referred to above reads as follows:
Each owner shall indemnify and save harmless the corporation from and against any loss, costs, damages, injury or liability whatsoever which the corporation may suffer or incur resulting from or cause by an act or omission of such owner, his family or any member thereof, any other resident of his unit or any guests, invitees or licencees of such owner or resident to or with respect to the common elements and/or all other units, except for any loss, costs, damages, injury or liability caused by an insured (as defined in any policy or policies of insurance) and insured against by the corporation.
This type of general indemnity clause is often the only indemnity clause found in older condominium corporation declarations.
So what is my point? Simply that case law is growing that supports the position that a condominium cannot force an owner to indemnify it for costs incurred without proper authority to do so and a general indemnity clause in the declaration might not be sufficient. Authority may be contained within the Act (see e.g. sections 92(4), 98 (4), or 134(5)), declaration (e.g. like above), or by-law (e.g. insurance deductible). The condominium’s lawyer can assist in determining if there is proper authority in the Act or documents or if there are other legal principles that may allow the condominium to recover the expense from the owner.
Finally, still to come with the amendments, is the promise of a new process and new forms for charging costs back to unit owners. Once the amendments are in force only “prescribed additions” may be added to an owner’s common expenses and only once the “prescribed notice” is provided to the owner.
On November 1, 2017, the government introduced 15 new forms to the condo industry in Ontario. There are new forms for calling meetings, like a preliminary notice and notice of meeting. There are three forms about the record of owners/mortgagees and receiving notices electronically. There is a single prescribed proxy form. There are three new certificates (PIC, ICU, NOIC) and a notice for distributing them online. Even record requests have been complicated (or simplified depending on your perspective) with the creation of three prescribed forms.
I feel like all I write about these days is Bill 106 (the amendments to the Act). Today, I’m getting back to my roots and writing about some important decisions released by the courts and tribunals in Ontario in the past few months. The first is about the enforcement of a lien. The second is about an owner who won’t quit. And the third is about a director who felt she was discriminated against because of her age. All of the decisions are available on CanLII if you want to read them in their entirety. Continue reading
I previously wrote about the changes coming to section 46 of the Act related to requisition meetings (https://ontcondolaw.com/2017/03/27/changes-are-coming-requisitions/). To recap, the biggest changes are: 1) a prescribed form for requisitions; 2) a prescribed process for communicating with the requisitionists; 3) a longer period of time to call and hold the meeting; and 4) the elimination of the owners’ right to call the meeting if the condominium refuses to do so.
The changes to section 46 of the Act that address requisition meetings have not yet come into force and a date has not been released. This means section 46 (as it was prior to the amendments) continues to apply while other related changes have been implemented, such as those for calling and holding meetings of the owners. Therein lies the problem. Continue reading
As you likely know, in April of 2017, the federal government introduced legislation to legalize and regulate marijuana in Canada. In September of 2017, Ontario introduced its own legislation to address the regulation of marijuana. In Ontario, the exclusive right to the sale of marijuana has been granted (at least for now) to the LCBO.
The legalization of marijuana is sure to be a popular topic for 2018. It is already discussed in mainstream media, on social media, and around the water cooler. It has been discussed at condo industry conferences and seminars. The discussion most recently focuses on what condominiums can do about the legalization of marijuana. I was asked for my thoughts on the matter recently by GlobalNews. You can read the full article here: https://globalnews.ca/news/3985115/condos-marijuana-rules-smoking-ban/.