The CAT Rules on Parking Dispute

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The Condominium Authority Tribunal (CAT) has released a few decisions related to parking issues in condominiums in the last six months. We summarized one of the previous decisions in post last month. The CAT has released another one this month that is interesting in what is says about rule enforcement, delays in enforcing by condominiums, and the available remedies to condominiums.

In a recent case the tenant was parking a motorcycle beside the parking space where he parked his car. The space where he parked the motorcycle was not a parking space. The condominium informed him that he was prohibited from parking in the area as it was contrary to the rules, but the tenant refused to move the motorcycle. The condominium started a case with the CAT. The tenant did not participate, but the landlord did participate.

Rule Enforcement

The CAT first reviewed the rules to determine if there was a violation, and if so, if there were any reasons it should not be enforced in the case.

The condominium had a rule that prohibited owners from placing, locating, keeping, installing, or maintaining any item on the common elemens. The rule authorized the condominium to remove any item left on the common elements by an owner and store the items at the owner’s expense. The CAT determined that the tenant violated the rules by parking the motorcycle on the common elements. The landlord did not dispute the tenant was violating the rules by parking his motorcycle in the area next to his car.

The tenant argued that parking his motorcycle in the spot did not violate a fire safety rule, contravene the by-laws, or impede access to the property, so he should be able to continue parking the motorcycle in the space. The landlord supported the tenant’s position. The condominium conceded that it was not a fire safety issue and did not impede access. The condominium argued the tenant parking his motorcycle in the space was a violation of the rules.

The tenant and landlord also argued that the tenant should be able to park in the space as he had been doing so for many years. They argued that the rule was unreasonable and should not be enforced. They also argued that the condominium’s failure to enforce the rule for many years prevented it from doing so now. The CAT disagreed. The rule was not, on its face, unreasonable:

The fact that [the tenant’s] use of the space is not interfering with any critical infrastructure is not persuasive evidence that a prohibition of his use of that space is unreasonable. The Rule is not aimed at that corner of the parking garage or at him personally. The Rule appears to fall within a range of what is reasonable. I conclude that the Rule is not unreasonable.

The CAT found that there was some unexplained delay in enforcing the rule by the previous manager, but there was no evidence the condominium acquiesced in the tenant’s parking arrangements or led him to believe that he was parking in a permitted space. The CAT said “The lapse in enforcing the Rules might require some additional notice of the change in policy but this was provided by the numerous notices during the fall of 2020.”

Remedies

The condominium had several parking spaces for rent for motorcycles, but all spaces were being used at the time of the hearing so the only option was for the tenant to remove the motorcycle from the parking garage. The CAT gave the tenant 21 days to remove the motorcycle from its location. If the tenant fails to do so, the condominium is entitled to take any lawful action available to it to enforce its rules against the landlord and tenant and it will be entitled to charge those expenses to the owner or tenant, or both.

Owner’s Meritless Challenge to Lien Results in Big Win for Condo

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A recent case demonstrates the possible consequences when owners choose not to pay their monthly common expenses on time and the condominium is forced to take steps to lien the unit and sell it. The unit owner had not paid her common expenses since June of 2018. The Condominium registered a lien against her unit on January 31, 2019. The owner did not pay to discharge the lien, so on May 14, 2019 the Condominium issued a statement of claim seeking to obtain possession of the unit so it could sell it. The owner filed a statement of defence and counterclaim in which she claimed to have paid her common expenses to the manager. She also sought $11,350 in damages for a flood in her unit.

The condominium brought a motion for summary judgment so it could continue its efforts to sell the unit. At the hearing the owner offered to pay the outstanding common expenses. The parties could not agree on the amount of legal costs the owner should pay to the condominium. The condominium sought all of its legal costs ($56,000) from the owner. The owner argued no more than $15,000 would be reasonable.

The judge reviewed the relevant provisions of the Condominium Act, 1998, including section 85(3) which states the lien includes interest and “all reasonable legal costs and reasonable expenses” incurred to collect the outstanding amount. The judge stated that the phrase “all reasonable legal costs” signals that condominiums ought to be entitled to more than partial indemnity costs. Subject to the court’s overriding discretion to determine costs, the condominium is entitled to recover all of its legal costs when enforcing a debt owed by an owner so long as those costs are reasonable.

The judge acknowledged the fees sought by the condominium were high, but found them reasonable in the circumstances of the case. The owner had repeatedly defaulted in her fees in the past, which resulted in liens and power of sale proceedings. The owner was well aware of the consequences of not paying common expenses and the legal steps the condominium would take to recover any unpaid amount. The legal work done by the condominium was necessary to collect from the owner as the owner refused to pay the amount owing to the condominium. The judge also felt the owner’s litigation strategy was to delay the matter to avoid her obligation to pay her share of the common expenses. The judge found that she was not entitled to complain about costs incurred as a result of her own litigation strategy. Lastly, the owner made no efforts to settle the matter and refused reasonable settlement offers from the condominium until just before the hearing.

The case is an interesting one. While I agree that the owner’s own litigation strategy appears to have greatly increased the condominium’s costs, some of the time claimed by the condominium seems unreasonable. For example, spending almost 5 hours to register a lien, seems excessive. A lien usually takes less than an hour to prepare and register. Even including a notice of lien would not bring the time to close to 5 hours. Similarly, 38 hours to review and reply to a responding motion record that, according to the judge, did not contain any evidence to substantiate the claim seems extreme.

Spring Break Reading: Courts Edition

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As described in our post on Wednesday, the Condominium Authority Tribunal (CAT) has been busy so far in 2021 releasing at least 30 decisions. Well, the Superior Court of Justice is no slouch either. There have been dozens of decisions in 2021 that are relevant to condominiums in Ontario. The Court of Appeal has also released some interesting decisions. Today, we briefly review a few of the key decisions.

2021 ONSC 2616: a condominium brought an application against a unit owner claiming that he “terrorized the community”. Other allegations included harassment of contractors, not permitting his unit to be inspected for fire safety purposes, threatening to send asbestos to others’ homes, and playing audio recordings loud enough for the whole condominium to hear on a repeating loop for hours at a time. The condominium sought various orders, including an order prohibiting the owner from communicating with the directors, agents, and contractors. The owner claimed that the condominium had to accommodate him. The court found the condominium had done all that it could to accommodate him and his communications constituted harassment. At paragraph 43 the court summarized the situation as follows:

[43]         A demand for accommodation is only one side of the community living equation. People are required to recognize [the owner’s] disabilities and aid him accessing their goods and services to the point of undue hardship. But the duty to accommodate does not eliminate altogether the other parties’ rights and the need for [the owner] to obey the law and the rules of the condominium. A right to accommodation to participate in the community is not license to harass, oppress, or unilaterally dictate rules for how the condominium community behaves.

2021 ONSC 2575: an owner brought an application against its condominium to set aside part of an arbitration award. The owner only owned parking units and wanted to access the corridors and other common elements. The arbitrator found this was an “absurd result” and found the board’s interpretation of its documents to be reasonable. As a result, the arbitrator determined the owner was not entitled to access the corridors and other common elements. The court set aside the arbitrator’s award. The judge felt the arbitrator had no authority to make the decision it did with respect to the access issue as the arbitrator “cross the line” and purported to amend the declaration to correct perceived inconsistencies or errors. I do not agree with this decision, but it appears the matter is not over given the judge has referred it back to arbitration on the issue of access. We will see what happens with it.

2021 ONCA 191: an owner brought an application against her condominium claiming it had failed to maintain and repair the property and acted oppressively. The owner complained of noise from fans above her unit, which the condominium removed. She claimed the condominium did not resolve the problem in a timely manner. The application was dismissed. The owner appealed. The court of appeal dismissed the appeal. The judge properly considered the test for oppression under section 135 of the Act: was there a breach of the owner’s reasonable expectations and, if yes, the conduct complained of amounts to oppression, unfair prejudice, or unfair disregard of the owner’s interests. The judge was satisfied that the condominium addressed her complaint in a reasonable manner by meeting with her, communicating with her, visiting her unit multiple times, retaining experts to investigate, and in following the recommendations of the experts. The judge’s decision was entitled to deference on appeal.

2021 ONSC 2071: a condominium brought an application against two owners who refused to wear masks while on the common elements. The owners claimed they were exempt due to medical conditions and they were not required to provide proof of their exemption. The condominium argued the owners refusal was deliberate and in defiance of the legislation, municipal mask by-law and the condominium’s mask by-law. The condominium submitted photographs of the owners wearing anti-mask signs and posting anti-mask posters in the building. The condominium was concerned that the refusal to wear masks put the other residents at greater risk. The court had to balance the competing rights of the owners and the rest of the community. The court summarized the balancing at paragraphs 37 and 38:

[37]                 Condominium corporations indeed constitute a form of micro-community, in which the residents partake in a form of social contract. As with living in any community, condominium owners and their guests must enter a social contract which relinquishes their absolute interests to do as they please with their real property, and instead balance their interests with those of the other owners and tenants.  Condominium corporations are mandated to be self-regulated.  Condominium boards have a duty to control, manage and administer their community.  In doing so, they may make rules and policies that are more restrictive than the general law applicable to all persons and premises in the province or in a particular municipality by operation of provincial statutes or regulations, or municipal by-laws: for example, restricting the sorts of pets that residents may keep, or restricting the access of contractors to do non-essential work during the pandemic, as in TSCC 1704 v. Fraser, supra

[38]                 The efforts of the HCC77 board to develop and promulgate a mask policy were not only reasonable, but necessary in the circumstances.  But, in respect of the interplay between provincial and municipal legislation and condominium policy, a condominium board may not promulgate policies that are contrary to law of general application in the province or municipality.  They may make policies that are more restrictive in areas where the law of general application has not already occupied the field, but they cannot be inconsistent.

The court was not prepared to require the owners to wear a mask given their claim of being exempted and the clear language in the legislation and municipal by-law not requiring proof of the exemption. The court did make an order limiting their use of the common elements to essential purposes only (i.e. ingress and egress to their unit, collecting their mail) to protect the other residents. As a result, the owners can no longer walk around on other floors for exercise or visit other residents without wearing masks.

2021 ONSC 1306: an owner refused to replace Kitec pipes in his unit. The condominium notified him that it would replace the pipes at the owner’s cost. The owner refused to permit access to his unit. The condominium commenced mediation proceedings in an attempt to secure his cooperation. He did not participate in mediation. The condominium commenced arbitration proceedings, but the owner did not participate in any meaningful way (other than to object to the arbitrator’s appointment). The arbitrator made an award ordering the owner to permit the condominium to access his unit to replace the Kitec pipes in his unit and ordered $60,000 in costs. The owner continued to refuse, so the condominium sought a court order enforcing the award. The owner brought an application to set aside the arbitration award. The owner’s application was out of time and dismissed. The condominium’s application was granted, so judgment would be issued enforcing the arbitration award.

Spring Break Reading: The CAT Edition

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The Condominium Authority Tribunal (CAT) has been busy so far in 2021. As of April 13, 2021, the CAT has released 30 decisions. Many of the decisions still relate to record requests, but there have been a few about other issues that it now has jurisdiction to hear, like pets and parking. Some cases were about procedural matters, like the application of the CAT rules. Some cases were about the jurisdiction of the CAT when other courts or tribunals also have jurisdiction over the dispute.

2021 ONCAT 27 : the CAT heard two motions from a condominium requesting the CAT dismiss or merge four cases and rule that the conduct of the applicants was vexatious. The CAT did not dismiss the cases, but the CAT ordered the applicants to choose which of their cases would proceed. The CAT also found that one of the representatives had repeatedly violated the CAT’s rules. He was not qualified to be a representative because he was not a lawyer, paralegal, or condo manager, and the CAT was not convinced he was a “friend” of the corporate applicants. Despite a ruling by the CAT that he was not qualified, he continued to monitor email, reply for the applicants, and submit documents for them. The CAT ordered the applicants to change their representative and provide updated email addresses to the CAT that the “friend” could not access.

2021 ONCAT 25: The CAT merged three cases brought by an owner against his condominium to provide the most fair, focused, and efficient process for both parties. The three cases related to: 1) parking rules; 2) pet rules; and 3) a record request for pet rules.

2021 ONCAT24: An owner requested two contracts from the condominium, which the condominium refused to provide because of the owner’s history of making complaints about the manager. The CAT found that complaining about your manager is not a valid reason for a condominium to refuse a valid request for records. The CAT awarded the owner $200 in costs and a penalty of $2,000.

2021 ONCAT 21: An owner filed a case against their condominium and a neighbour regarding a basketball net placed by the neighbour on their driveway. The condominium claimed it was not a violation of the rules and the owner asked permission to place the net on the driveway. The CAT found the basketball net was not contrary to the declaration or rules, but awarded the applicant $200 for filing fees because it was a novel issue within a new area of jurisdiction for the CAT.

2021 ONCAT 20: The owner brought a motion to defer the CAT case because they had already filed an application with the Human Rights Tribunal of Ontario (HRTO). The condominium was aware of the HRTO case when it filed the CAT case. The condominium acknowledged that it had a duty to accommodate the owner because of her disability. The condominium sought to require the dog to wear a muzzle in common areas. The CAT found the dispute was about the application and exemption of the condominium’s rules. The CAT dismissed the motion as it had jurisdiction to hear the dispute.

2021 ONCAT 18: The owner filed a case against her condominium and a neighbouring condominium about parking. The two condominiums shared a visitor’s parking area, which the owner sought to use. The case was dismissed as the time for filing the case had expired. She failed to bring an application within 2 years after the dispute arose, namely when she was denied permission to use the visitor parking area. The CAT did not rule on whether a claim by the owner for accommodation due to a disability would also be out of time under other legislation.

Scared of Holding Your AGM During a Lockdown?

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Yes. Subsection 45(2) of the Condominium Act, 1998, requires all condominiums to hold an annual general meeting (AGM) within six months of the end of the fiscal year. There are no exceptions as the AGM serves several important functions, such as presenting the audited financial statements to owners and electing directors.

The Ontario government briefly extended the time for holding AGMs for condominiums with fiscal years ending September 30, 2019 to January 31, 2020 because of restrictions on large gatherings, but no further extensions have been made. As a result, condominiums with fiscal years ending February 2020 and later must hold their AGMs within six months of the end of their fiscal year.

There continue to be restrictions on large gatherings and case numbers are increasing again. How can we safely hold our AGMs?

The Ontario government made orders (and later temporary amendments to the Condominium Act, 1998) to permit condominiums to use electronic and telephonic means to hold their meetings even if their by-laws do not permit such. This means that condominiums can hold their meetings in a variety of ways, such as:

  • with the assistance of a meeting host / provider
  • using virtual meeting platforms, like Zoom, Go-To-Meeting, Google Meet, Teams, etc.
  • using teleconference

While the last extension is set to expire on May 31, 2021, it seems likely a further extension will be made until the restrictions on large gatherings are lifted. Alternatively, there is some speculation that the Act may be amended to make these changes permanent. In my opinion, even if a further extension is not made, using electronic or telephonic means to host a meeting may still be preferable to holding an in-person meeting for some condominiums.

The amendments also permit voting by electronic or telephonic means even if the by-laws do not permit such. Depending on the size of the condominium and the nature of the votes to be conducted, the condominium may be able to use the voting features built into the platforms (i.e. polls, show of hands). In some cases, it may be preferable to use a meeting host/provider to assist with the voting process, or at least purchase a voting package to assist with the collection of e-proxies or e-votes.

Some people in the industry, including the Condominium Authority of Ontario (CAO), also support the use of proxy only meetings in some situations (i.e. non-contentious issues). A proxy only meeting is one where the owners are not permitted to attend a meeting in person and all voting must be performed by proxy. I personally question whether requiring owners to vote via proxy is in compliance with the Act, but I understand the logic behind it. As such, a proxy only meeting might be useful if the owners are agreeable to holding the meeting this way and there are no contentious issues to discuss or vote on.

Very small condominiums might be able to conduct meetings in person so long as they can comply with the restrictions on gatherings at the time of the meeting. The most common reason for wanting to host a meeting in person is a perception that people will not be able to participate because they are not familiar with the technology. I have found this to be exaggerated. People have adapted very well and the technology is user-friendly. Holding a meeting in person could exclude people in the same way a virtual meeting may exclude those unable to use the technology as some may be unwilling or unable to attend in person due to the risks of infection.

I acknowledge that access to reliable internet or devices might be an issue for some. If this is a concern, I would encourage the condominium to consider a teleconference as many people can figure out a phone call without much trouble. Alternatively, consider a proxy-only meeting for non-contentious meetings.

As people are vaccinated (at least those who are willing and able), it will become possible to hold meetings in person again. It seems possible that certain parts of Ontario will resume more normal activities sooner than others.

If you have any questions about the best option(s) for holding your AGM you should reach out to your lawyer for an opinion.

The CAT Dismisses “Minor” Case Without a Hearing

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On March 18, 2021, the CAT released a decision on a motion made by a condominium to dismiss a case without a hearing. The owner made a record request for minutes of a board meeting and another document regarding a motion that was apparently made by a former director at the meeting for an investigation under the governance and ethics by-law. The condominium provided a copy of the minutes, but the minutes did not refer to the motion that was made by the former board member. The minutes provided by the condominium differed from the version received from the former board member who made the motion as the minutes did not include a reference to the motion. Both versions of the minutes were signed by the board.

Rule 17.1 of the CAT’s Rules allows the CAT to dismiss a case at any time in certain situations, including where the case is about issues that are so minor that it would be unfair to make the responding party go through the CAT process. The condominium made a motion to have the CAT do so in this case.

The owner argued that the official minutes should include reference to the motion and the supporting documents prepared by the former director regarding the motion should be attached. He argued the minutes were not adequate as they did not record “all proceedings and motions” even the ones that failed. The condominium argued that the issue was so minor that it would be unfair to the condominium to continue with the hearing because the owner was already in possession of both copies of the minutes, as well as the supporting documents that he wanted attached to the minutes.

The CAT’s member reviewed the requirement for the condominium to keep “adequate records” and noted the term “adequate” is not defined in the Act. The member referred to previous case law where the term was found to mean the records must permit the condominium to fulfill its duties and obligations. The accuracy of a record is a component of its adequacy.

The CAT member concluded that the minutes did not need to refer to a motion that was not seconded or discussed as no business was transacted by the Board:

There is no basis on which to conclude that a background document for an item that was not on the board’s agenda…was not discussed and therefore was not accepted by the board, should either form part of the minutes or be retained as a corporate record.

The member further stated:

If the motion in question had been seconded and discussed…the issue of accuracy and therefore the adequacy of the “official” version of the minutes provided to the Applicant by the Respondent would merit hearing evidence. However, in this case, no business was transacted and I conclude that the substance of the difference between the two versions, that is the recording of a motion that was not seconded, comprises a minor issue which does not warrant making the Respondent go through the hearing process. Whether every item raised at a board meeting that results in no transaction of business and no decision on any action should be recorded in its minutes is a decision for the board to make. Therefore, I dismiss this case. 

Notwithstanding the member’s decision to dismiss the case, she advised the condominium to rectify the issue by amending the minutes to say that an amendment was made to them.

Interesting case. It is not clear how there came to be two separate sets of minutes, but is sounds like the minutes were distributed to the board and former director for review prior to their approval at a meeting. The draft minutes were then provided by the former director to the owner requesting the minutes. The minutes were later amended to remove the motion made by the former director. This is purely speculation as I was not involved in this case. That said, I have seen similar issues with draft minutes being circulated before they are amended and approved. One way to avoid this situation would be to add a “draft” watermark to the minutes and not sign them until they are approved at a board meeting. If the minutes are later amended a note should be added to show the amendment that was made and the date it was made.

Part Two: Another “3 Ps” in Condos? Policies, Programs, and Plans

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Earlier this week we wrote about policies, programs, and plans in condominiums. This post is the second in the series where we briefly discuss some other required policies and some recommended ones.

REQUIRED POLICIES, PROGRAMS AND PLANS

Condominiums may be required to create policies in a variety of situations. The most common situation is where a condominium has an employee (or more broadly a “worker” in some cases).

Accessibility Policies

The Accessibility for Ontarians with Disabilities Act (“AODA”) is designed to make Ontario accessible for persons with disabilities by January 1, 2025. It aims to do so by developing, implementing, and enforcing accessibility standards.

The requirements for the accessibility standards differ based upon the number of employees of an organization and if the organization is a public or private organization.  “Small organizations” are organizations with at least 1 employee and less than 50 employees, which captures many condominiums in Ontario. These condominiums should have created an accessibility policy by January 1, 2015. As a small organization there is no obligation to put the policy in writing, although it is recommended. The policy must be explained to employees.  

Interestingly, the focus for the AODA is on “employees” not “workers” like with workplace violence and harassment policies. Under the AODA the term “employee” excludes independent contractors and volunteers. Accordingly, it is possible that some condominiums may have no employees. In this case, the condominium would not be obligated to create accessibility policies or comply with other requirements of the AODA. That said, these condominiums should still ensure their contractors and others comply with the AODA where required to do so.

COVID-19 Policies & Plans

Employers in Ontario have an obligation to protect employees from unsafe working conditions and hazards. As condominiums remain open throughout the lockdown, it is important for condominiums to create a COVID-19 workplace safety plan. A template COVID-19 workplace safety plan is available on the Ontario website here: https://www.ontario.ca/page/develop-your-covid-19-workplace-safety-plan

Some municipalities have additional policy requirements for condominiums, such as mask requirements in common elements and amenity areas.

RECOMMENDED POLICIES, PROGRAMS AND PLANS

Even where condominiums are not obligated to create a policy it may be desirable to do so as they can be useful at describing expectations for the community.  

Anti-Harassment and Anti-Discrimination Policies

The Human Rights Code (the “Code”) prohibits discrimination in five social areas. The Code protects against discrimination based on 17 grounds, including age, sex, family status, disability, and race.  

Anti-harassment and anti-discrimination policies are intended to make it clear that harassment and discrimination will not be tolerated. These policies set standards and expectations for behaviour within the condominium. The policies typically explain what types of behaviour are not permitted and set out the roles and responsibilities of various individuals. In recent years, many condominiums have passed these policies as rules to make them easier to enforce using the provisions of the Condominium Act, 1998. The Ontario Human Rights Commission has sample policies available on its website: http://www.ohrc.on.ca/en/policy-primer-guide-developing-human-rights-policies-and-procedures/5-anti-harassment-and-anti-discrimination-policies

Additions, Alterations, or Improvements Policies

Some condominiums have created policies to set out guidelines for owners looking to make additions, alterations, or improvements (“changes”) to the common elements under section 98 of the Condo Act. For example, the guidelines may explain the permitted types, materials, and colours of commonly requested changes, such as fences, screen doors, and landscaping features. These policies do not eliminate the need to comply with section 98 of the Condo Act, but they do make it easier for condominiums to ensure these requests are treated fairly and consistently for all owners.

The lists above and in our previous post are not exhaustive. It is also important to note that the samples or templates provided are not substitutes for legal advice. Condominiums should speak to their lawyers for advice prior to enacting these policies.

Another “3 Ps” in Condos? Policies, Programs, and Plans

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Most people are familiar with the declaration, by-laws, and rules of condominiums, but many are less familiar with policies in condominiums. This is not surprising as the only references to “policies” in the Condominium Act, 1998 (the “Condo Act”), are for insurance policies. In recent years, condominiums are more regularly creating policies to address a variety of topics. This post is the first of two which will describe some policies that condominiums may be required to create and others that may be recommended.

WHAT IS A POLICY?

Generally, a policy is a set of guidelines that support future decisions and define expectations. For condominiums, a policy may be created, amended, or repealed by resolution of the board of directors. It does not require approval of the owners. That said, the policy will only be enforceable if the board of directors had authority to make a decision on the subject-matter of the policy without approval of the owners. The policy must also be reasonable and consistent with the declaration, by-laws, and rules of the condominium.  

REQUIRED POLICIES, PROGRAMS AND PLANS

Condominiums may be required to create policies in a variety of situations. The most common situation is where a condominium has an employee (or more broadly a “worker” in some cases).

Reserve Fund Investments

The Condo Act requires condominiums to create an investment plan before investing any part of the condominium’s reserve fund accounts. The plan must be based on the anticipated cash requirements of the reserve fund as described in the most recent reserve fund study. It is wise to create the plan with the help of an investment professional.

Workplace Violence and Harassment Policies and Programs

Every employer in Ontario must prepare and review, at least annually, policies on workplace violence and harassment according to the Occupational Health and Safety Act (“OHSA”). The policies are required regardless of the size of the workplace or the number of workers, but there are additional requirements where there are six or more regular workers. The employer must also maintain a program to implement the workplace violence and harassment policies.

It is important to note that the definitions of “employer”, “worker”, and “workplace” are very broad. For example, “worker” includes both employees and contractors. A worker could include a cleaner, landscaper, superintendent, or property manager depending on the circumstances. As such, it is likely that most, if not all, condominiums in Ontario would be required to have these policies and programs in place.

A sample workplace violence policy and program has been produced as part of the Ontario Ministry of Labour’s Workplace Violence and Harassment: Understanding the Law guide which can be found here: https://files.ontario.ca/wpvh_guide_english.pdf It is important to keep in mind that the workplace violence and harassment policies and programs must be modified to reflect the risks of the workplace after the employer completes its risk assessment.

Make sure you check back for part 2 of this series for more required policies and some recommended ones.

Confusion Over Condominium By-law Requirements

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Earlier in the year we wrote about the different voting thresholds to pass condominium by-laws and described the process generally. We did not go over the extensive list of permitted subject matters or other requirements for a by-law to be valid. A recent case highlights the importance of ensuring the by-law complies with all requirements of the Condominium Act, 1998, so today we will explore the other requirements of the Act.

In a recent case the court was asked to rule on the validity of a by-law that contained conditions and restrictions on the rental of the units. The court found the condominium’s by-law was valid as far as its restrictions on: controlling who may operate a rental program, charging a rental management and amenity fee, collecting refundable damage deposits, and imposing limits on the number of people who may occupy a rental unit. The court found that the restrictions on advertising and the requirement that the owners use a rental manager approved by the Corporation were unreasonable. The court ordered the unreasonable parts be struck from the by-law.

Most people are aware that by-laws must be approved by the board of directors and then the owners at a meeting. The by-law must be approved by either a majority of the voting units or a majority at the meeting, depending on the type of by-law. We explained this in greater detail in our January 2021 post. Using the process to pass a by-law does not guarantee that the by-law will be valid.

The Act contains a few other requirements for a by-law to be valid. The by-law must be consistent with the Act and the Declaration. Put another way, a condominium cannot create a by-law that attempts to change an obligation or right in its Declaration unless the Act or Declaration specifically permits by-laws to modify the obligation. This is often where a by-law would extend an obligation (i.e. increase the situations where owners may be responsible for insurance deductibles) as opposed to change or remove the obligation.

The by-law must also be reasonable. This requirement is harder to explain. The Act does not define “reasonable”, but reported cases offer some guidance as to what may or may not be reasonable in a condominium by-law. Does it feel like the condominium is trying to regulate an activity that it shouldn’t be? Is the by-law offensive? Is it targeting a specific owner? If the answer is yes, the by-law might be unreasonable (and possibly oppressive). If there is any doubt about the reasonableness of a proposed by-law the condominium should speak to its lawyer.

The last requirement to keep in mind is that the subject matter of the by-law must be authorized by the Act. Section 56 contains an extensive list of subjects, such as qualifications and disqualifications for directors, procedures for owners meetings, and standard unit definitions. There are other parts of the Act or regulations that authorize other types of by-laws, such as sections 21 (easements and leases of common elements) and 57 (occupancy standards). It is important that a proposed by-law fit within one of the permitted subjects or the by-law will be invalid.

Salt, Snow and Ice: A Roll of the Dice

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Today’s topic was suggested by one of our readers, John, who is often faced with questions and comments from owners about snow removal and salting. Some owners feel their condominium’s contractor puts down too much salt, which gets tracked into their homes and ruins the floors. On the other hand, some owners feel the contractor puts down too little, which creates a risk of a slip and fall. Like many issues in condominiums, the board and management are often stuck in the middle. What’s a condominium to do?

Why Remove Snow & Ice?

Apart from concern about neighbours being injured in a slip and fall, most declarations require the condominium to maintain the common elements, which includes an obligation to remove snow and ice from walkways, driveways, and parking areas. This is sometimes true even where the driveways or walkways form part of the exclusive use common elements or even part of the units.

In addition, the condominium is considered the occupier of the common elements for the purposes of the Occupier’s Liability Act. This means the condominium is responsible for ensuring that people entering upon the property and their personal property are reasonably safe while on the property. This duty extends to conditions on the property, such as snow and ice, as well as activities being carried out on the property. If the condominium fails to properly maintain the property in a reasonably safe condition it could be responsible for damages or injuries that a person incurs on the property.

It is important to briefly discuss a recent legislative amendment related to slip and fall incidents. On January 29, 2021, the Occupier’s Liability Act was amended to prohibit legal action for damages for personal injury caused by snow or ice unless written notice of the incident is provided within 60 days of the incident. The notice must contain information about the incident, including the date, time, and location. It must be personally served or sent via registered mail to the occupier or the contractor responsible for snow removal on the property. A judge may find that the failure to give notice within 60 days is not a bar to an action if there is a reasonable excuse (i.e. severe injuries resulting in hospitalization) or the person dies as a result of the incident.

When a condominium receives a notice it should ensure that it promptly shares a copy with the snow removal contractor and any other occupier of the property, such as other condominiums in a shared facilities situation and the management company. The condominium must notify their insurer. The condominium should also take steps immediately to preserve any evidence, such as surveillance footage of the incident, as this evidence may show the condominium took reasonable steps to prevent the incident.

How Can You Address Concerns About Salt and Ice?

If a condominium is receiving complaints about too much or too little salt the board or manager should talk to its snow removal contractor. The contractor might be able to explain why they put down the amount of salt they do or modify the amount they put down in certain areas of the property. For example, in some condominiums there are parts of the property that accumulate more ice than other parts for a variety of reasons, such as exposure to the elements, drainage patterns, or the location of eaves. The contractor may be able to reduce salt in other areas where the risk of slip and fall accidents is lower.

Sometimes condominiums ask the contractor to put down a reasonable amount of salt to prevent slip and falls while providing extra salt to those owners who want to put down more on their walkways or driveways. This can be a good way to address situations where a condominium is faced with some owners complaining about too little salt and others complaining about too much salt.

The condominium could also ask the contractor about alternatives to salt, such as sand or de-icing products. Some of these products may cost more, but they may also do less damage to landscaping or other items so they might be preferred by owners.

Sometimes owners remove the salt on their walkways or driveways or ask the condominium to stop placing salt on their walkways or driveways. Some owners even offer to sign legal documents releasing the condominium and contractor from any claims if they slip or fall as a result of the contractor not placing salt in the area. I would caution condominiums about signing these documents without first speaking to their lawyers and insurers as these documents may not act as a bar to legal action by the owner, which leaves the condominium exposed to potential claims.

I see the snow is falling again this morning, so this was a very timely topic. Thanks for the suggestion John!