Caution: Reading this Post May Cause Nightmares About Indemnity Clauses

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A recent case involving the right of a condominium to charge legal fees to an owner for alleged non-compliance with a rule has the industry talking. The decision has divided the legal community, resulting in many interesting legal debates and a whole lot of uncertainty for condominiums going forward.

The case is Amlani v. York Condominium Corporation No. 473. The dispute was about smoking. Amlani smoked and the condominium received complaints about it. The condominium took some steps to improve the situation, such as sealing joints and penetrations between the units. The owner limited his smoking to one room and used air filters to reduce the smoke transmission to other units. Unfortunately, the condominium received further complaints. The owner was willing to meet and discuss potential solutions, but the condominium was unwilling to do so and demanded that he stop smoking in the unit as it was a nuisance. Continue reading

Top Condo Lessons of 2019

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As 2020 approaches I find myself reflecting on the most important news, cases, and events from this past year. There were several notable decisions released this year and a few that I’m sure we would all like to forget! The hardest part of these lists is selecting only ten to speak about. Here is my list of the top ten condo lessons for 2019:

Counting Isn’t as Easy as 1, 2, 3

The Court confirmed the 10 day notice requirement for liens can be calculated by excluding the date the notice of lien is mailed and including the date of registration. Sending the notice of lien on January 21 and registering the lien on January 31 was acceptable. (Note: this is the minimum; more time is generally better). See CCC 476 v. Wong (2019). Continue reading

Is Phase Two of the Amendments on Its Way?

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Unless you are new to condo living, you likely know that the Condominium Act, 1998 was amended in 2017. At the time, many believed that the rest of the amendments would be phased in over the following 18 to 24 months. It has been two years and very few of the remaining amendments have come into force. [Note: if you review the Act you will see large portions of it in grey indicating that it has not yet come into force]. Continue reading

Recent Changes to Cannabis Laws

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On October 17, 2019, the Cannabis Regulations under the Cannabis Act were updated to establish rules for the legal production and sale of three new classes of cannabis: edible cannabis, cannabis extracts, and cannabis topicals (i.e. lotions). It is expected that these new products will be available to Canadians before the end of the year.

What does this mean for condominiums? Continue reading

Coming January 1, 2020…

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We are still early into the Fall season, but there have already been a few announcements about changes coming January 1, 2020. More changes are expected to be announced, but here’s what we know so far.

Condo Authority of Ontario (CAO) 

The CAO announced that it will again have a 25% reduction in its fee for the 2020-2021 year. The fee will be $0.75/month per voting unit. The annual fee was initially set at $1/month per voting unit, but the costs to operate the CAO have been less than initially projected (in part because the CAT’s jurisdiction has not been expanded as originally anticipated under the previous government).

(Note: the Government of Ontario has proposed making the CAO responsible for 19 of the prescribed forms under the Act and its regulations, including information certificates, preliminary and notice of meeting, proxy, and forms related to record requests. These changes could take effect as early as January 1, 2020. Stay tuned on this one as it hasn’t been confirmed yet!).

Court Changes

The Government of Ontario announced some key changes to the court system in Ontario. The changes are aimed at increasing access to justice, reducing legal costs, and making the process quicker. On January 1, 2020 we will see the following changes:

  1. Increase in the monetary limit for Small Claims Court from $25,000 to $35,000.
  2. Increase in the monetary limit for Simplified Procedure actions in the Superior Court of Justice from $100,000 to $200,000.
  3. Other changes designed to reduce costs and speed up the process.

For those with claims with limitation periods expiring after January 1, 2020, you should discuss the pros and cons of commencing your actions now or waiting.

Condo Ignores Condo Authority Tribunal (CAT) Requests to Join Case

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A recent CAT decision serves as a good reminder to condominiums of the consequences for refusing to participate in the process.

The owner requested various records from the condominium twice. The condominium had its lawyer respond indicating that it had no obligation to respond because the owner had not used the mandatory form. The lawyer provided a copy of the request form with the letter and indicated that they would respond to the request once it was submitted on the proper form. The owner completed the form and sent a copy via fax to the lawyer and manager. The condominium did not respond so the owner filed a case with the Condominium Authority Tribunal (the “CAT”).

The owner provided notice of the CAT case by courier to the condominium at the management office. The CAT clerk even contacted the condominium twice to ensure they received the notice. The condominium still did not join the case. The condominium did not participate at any point and the process continued without it.

There is an interesting discussion of records requested by the owner that related to a civil action commenced by the condominium against the builder and developer. The action was funded by a special assessment and eventually settled with a payment to the condominium of $1.7 million. The owner was concerned because there was apparently a discrepancy between the settlement amount and the amount received by the condominium ($700,000) so the owner sought an accounting of the amount as well as the settlement agreement. After reviewing sections 55 and 23 of the Act, the CAT member found the owner was entitled to see the settlement agreement.

The CAT ordered the condominium to provide all of the records requested by the owner and pay a penalty of $3,000 for its refusal to provide the records without reasonable excuse. The CAT also awarded the owner costs of $150 (the filing fees paid to the CAT by the owner).

While $3,000 is a significant penalty for many condominiums, I wonder if it is enough incentive for some of the larger condominiums with multi-million dollar budgets. Clearly some are still choosing to ignore record requests by owners (and apparently direct contact from the CAT clerk). What will it take to get them to respond? $10,000? Personal liability on the directors? A summons? Fortunately, most condominiums comply with their obligations when records are requested.

The full case is available on CanLii: https://www.canlii.org/en/on/oncat/doc/2019/2019oncat44/2019oncat44.pdf

Get to Know the Team: Evan Holt

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Practice Areas

Evan’s practice is divided between assisting declarants acquire land and develop condominium plans and assisting condominium corporations and unit owners with condominium related issues.   Evan’s work includes:

  • reviewing and drafting agreements of purchase and sale;
  • assisting with various matters relating to condominium plan registration;
  • attending and acting as chairperson at condominium meetings;
  • drafting condominium documents (declaration, by-laws, and rules);
  • coordinating the collection of common expenses;
  • negotiating and drafting shared facilities agreements;
  • arranging settlements among condominium corporations, suppliers, or unit owners; and
  • commencing enforcement proceedings against a condominium corporation or unit owner.

Recently, Evan has devoted time to assisting condominium corporations collect arrears of common expenses that are no longer eligible to form the subject matter of a lien.  Evan has found that creative thinking and a willingness to understand the positions of opposing parties is key to any successful resolution.

Involvement

Evan is a former member of the Communications Committee of the Grand River Chapter of the Canadian Condominium Institute.   Evan has written articles that have been published in the Grand River edition of the Condo News and hopes to have more opportunities to have articles published in the future.

Personal

Evan enjoys spending time with his family, friends, and his dog, Bauer.  He is a sports enthusiast and you can often find him watching or participating in live sporting events.

Contact

Evan would be happy to speak with you to discuss any condominium related issue by e-mail or phone.

Quiet condo for retirement? Maybe not…

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A recent case discusses an interesting (and becoming more common) situation where a building is registered as a condominium, but also operated as a retirement home under the Retirement Homes Act, 2010. An action was commenced by certain unit owners against the condominium and various corporations involved in the operation of the retirement home. The owners claimed that the defendants breached the declaration, by-laws, and Retirement Homes Act, 2010, by acting in a discriminatory manner against some of the owners. The owners sought an order that: 1) required the defendants to ensure that at least 2 directors are independent of the defendants; 2) required the defendants to use an agreement that sets out the services program with mandatory fees in accordance with the by-laws; and 3) damages in the amount of $50,000. Continue reading

Is the CAO responsible for creating the forms? Maybe in the near future…

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There is a new proposal to have the CAO assume responsibility for 19 forms under the Condominium Act, 1998 and its regulations. The idea is that the proposed changes would “support the condominium community in being able to more easily access and use certain forms under the Condominium Act, 1998.” The proposal is for 17 forms to be delegated to the CAO on January 1, 2020 and 2 additional forms on July 1, 2020. Continue reading

The New Three P’s?

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If you live in or work for condominiums you’ve heard of the three p’s: people, pets and parking. These are three of the most common sources of problems in condominiums. (It really boils down to one problem – people – but let’s leave that aside for now.)

Lately, it seems like condominiums are encountering problems related to a new set of p’s: pot, prostitution and petty crime. Here we use “pot” to refer to drug activity generally, “prostitution” to include related crimes like human trafficking, and “petty crime” to refer to other sorts of criminal activity, such as vandalism and bicycle thefts. For some really unfortunate condominiums they experience all three of these at once.  Continue reading