I sometimes receive emails or calls from owners and directors who disagree with my opinion on an issue because they have read the Condominium Act, 1998, and misinterpreted part of it. Once I explain the relevant part of the Act or assist them in finding the relevant information they missed, we are usually able to agree on the issue. In the hopes of avoiding these sorts of disagreements in the future, I thought that I would provide some tips for reading and interpreting the Act.
You can find the Condominium Act, 1998, on the Ontario website: https://www.ontario.ca/laws/statute/98c19.
The top of the page should look like this:
Under the title of the Act you will see a tab called “Versions”. Unless you need to look at older versions of the Act make sure it is on the most recent version (the one at the top, in this case, May 12, 2020). There is also a “Regulations” tab if you want to look at the regulations made pursuant to the Act.
A table of contents is usually next on the page. If you don’t have a table of contents showing you might need to click on the plus sign beside “Contents”.
Once you click the plus sign you should see the table of contents. The table of contents contains links to the sections so you can avoid scrolling through the entire Act. You can also use CTRL-F to find certain terms if you know the term you are looking for in the Act.
Another common issue is using the improper version of the Act. You may see parts of the Act are highlighted in grey:
The areas in grey are amendments to the Act that are not yet in force. In the example above, the current version of Section 19 is shown in white and the future amendments are below in grey. Make sure you refer to the part in white for the current law.
Interpreting the Act
Sometimes the issue is not reading the incorrect version of the Act, but the interpretation of it. I see this frequently with Section 97 of the Act. Owners often read all of Section 97 and conclude that any repair or maintenance over 10% of the annual budgeted common expenses for the fiscal year is a substantial change that requires a vote in favour of 66 2/3 of the units. This is not the case. See our previous blog post on Section 97 here: https://ontcondolaw.com/2014/04/08/changes-to-the-common-elements-assets-or-services/
Another common interpretation issue is forgetting the provisions specific to the type of condominium. For example, there are parts of the Act that do not apply to common elements or vacant land condominiums, such as the repair and maintenance obligations described in the Act. It is important to review the parts of the Act for the specific type of condominium:
- Part X: Common Elements Condominium Corporations
- Part XI: Phased Condominium Corporations
- Part XII: Vacant Land Condominium Corporations
- Part XIII: Leasehold Condominium Corporations
Previous court decisions can be useful in interpreting the Act as the courts have interpreted most key terms and provisions in the Act. There are some free services providing access to case law and commentary in Canada. One of the most popular is CanLII (https://www.canlii.org/en/). You can search for cases on a specific section of the Act by typing Condominium Act into the box under “case name, document title, file number, author or citation” and inserting the section number in the box to the right.
In the example above I’ve searched for Section 97. It shows that there are 19 cases on CanLII citing this section of the Act. I have it set to sort by relevance (see above the blue box “Browse Lexbox”), but you can sort by date, most citations, court level, or pages.
There are a number of other sources of information on the Act. Check your local CCI Chapter (https://cci.ca/chapters/chapter-locations), your favourite condo blog, or purchase a book. Some books are even annotated with relevant cases. There are webinars, conferences, and other educational opportunities offered by CCI too.
Interpreting legislation can be difficult, especially with parts of the Act that contain references to other sections of the Act or regulations, or in some cases to other legislation. The condominium should consider obtaining legal advice before making key decisions based on an interpretation of the Act or its regulations.