Can Condo Boards Pass Rules Without a Vote of Owners?

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Last week we described the process for creating new condo by-laws. One of our astute readers asked: Is the process for passing rules the same as passing by-laws? Today, we tackle that question.

Before we dive into the process for passing rules, we should quickly answer another common question. What can rules be used for? Rules cover a variety of topics in condominiums, including parking on the property, garbage disposal, moving procedure (i.e. booking the elevator), use of the common elements and amenities (i.e. pools, greenspace), and noise, odours, and other nuisances.

Appropriate Subject-Matter

Prior to explaining the procedure to be used to create a new rule, it is important to discuss the appropriate content of condo rules. Each of the declaration, by-laws, and rules has subject-matters that are exclusive to that particular document. For rules, the board must make the rules to promote one of two purposes permitted by the Act:

  • promote the safety, security or welfare of the owners and of the property and assets (if any) of the condominium; or
  • prevent unreasonable interference with the use and enjoyment of the units, common elements, or the assets (if any), of the condominium.

The rules must also be about “the use of the units, the common elements or the assets, if any, of the corporation”. In addition, rules must be reasonable and consistent with the Condominium Act, 1998, and the declaration and by-laws. If the rule is inconsistent with the Act, the Act prevails and the rule is deemed amended accordingly.

Process

The process for making, amending, or repealing (removing) condo rules is the same. The process is described in section 58 of the Condominium Act, 1998. To summarize, the process is as follows:

  1. Board Approval: Board, by resolution at a properly constituted board meeting, creates the new rule (or amendment or repeal of an existing rule). The board can create the rule on its own or with the help of the manager or lawyer.
  2. Notice to Owners: The condominium must send notice to the owners about the rule. There is no prescribed form for the notice, but it must contain: a) a copy of the proposed rule; b) the proposed effective date of the rule (a date that is at least 30 days after notice); c) a statement explaining the owners have the right to requisition a meeting and the rule becomes effective as described in subsections 58(7) and (8) of the Act; and d) copies of sections 46 and 58 of the Act.
  3. No Requisition Received: If the board does not receive a requisition within 30 days of the notice, the rule becomes effective the day after the 30th day (or a later date if the Board has proposed an effective date beyond the 31st day).
  4. Requisition Received: if the board receives a requisition within 30 days of the notice, the board must call a meeting of owners to permit them to vote on the proposed rule. The ordinary process for calling a meeting is used, except the preliminary notice is sent 15 days before the notice of meeting instead of 20 days like with the AGM. This still requires the board to move quickly when a requisition is received as the preliminary notice must be sent out within 5 days of receiving the requisition to ensure proper notice is provided and the meeting is held within 35 days as required by the Act (note: many condominiums are not able to meet the 35 days, so it is common for requisition meetings to be a few days late). The rule becomes effective if there is no quorum at the first attempt to hold the meeting or, if there is quorum, the owners do not vote against the rule at the meeting.

Special Situations

Rules proposed by the declarant before the registration of the declaration must be reasonable and consistent with the Act and the proposed declaration and by-laws. The proposed rules are effective until replaced or confirmed by later rules.

Where a rule has “substantially the same purpose or effect” as a rule that the owners previously amended or repealed within the last 2 years the Board must call a meeting of owners to vote on the proposed rule. The owners do not need to requisition a meeting to vote on a rule that is substantially similar to one they already amended or repealed.

Lastly, and perhaps the most controversial, subsection 58(5) of the Act states that “the owners may amend or repeal a rule at a meeting of owners duly called for that purpose.” Some interpret this as suggesting the owners have the right to requisition a meeting to amend or repeal an existing rule (not create a new rule) without the board first approving the change as the board would in most cases where they are proposing a change to the rules. I support this interpretation. It provides the owners with the right to requisition a meeting to change a rule that no longer fits the community.

Have any other suggestions for future blog posts? Feel free to share by emailing us, or commenting on our social media posts.

Condo By-laws: What’s the Deal with Voting?

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With many condominiums passing by-laws to allow for virtual meetings and electronic voting, one of the most frequently asked questions right now is: how many owners need to approve the by-law? This became a common question after the Condominium Act, 1998, was amended in 2017 to create two different voting thresholds for by-laws. Prior to the amendments there was only one answer: a majority of the units in the corporation. (*Excluding units used for parking, storage, or services/facilities/mechanical installations unless all units are used for these purposes). There are now two answers: a majority of the units in the corporation or a majority of units represented at the meeting.

Confusion increased in 2019 when a court applied the wrong voting threshold to a borrowing by-law. We previously wrote about the case here: https://ontcondolaw.com/2019/05/01/the-controversiality-of-the-voting-threshold-borrowing-by-laws/

What is the level of support required to pass a by-law?

Most by-laws still require a majority of the units in the corporation to approve them at an owners’ meeting. This list includes:

  • Directors: the number, qualifications/disqualifications, elections, removal, term of office, and the regulation of board meetings
  • Borrowing: to authorize the condominium borrowing money to carry out its duties
  • Standard Unit: to define the standard unit for each class of unit for the purposes of determining obligations for insurance and repair after damage of improvements
  • Deductible: to shift responsibility for deductibles under the condominium’s insurance policies to owners in certain circumstances
  • Property: to lease a part of the common elements, grant or transfer an easement or licence through the common elements, or release an easement that is part of the common elements.

The by-laws that may be approved by the lower threshold, majority of the units represented at the meeting, are by-laws about requirements that were created by the amendments in 2017, such as:

  • Candidate Disclosures: Adding candidate disclosure requirements for elections to the board or requiring them to be in writing or provided within a certain time period
  • Information Certificates: Adding required content or increasing the frequency of them
  • Meetings: Adding material for meetings and notices of meetings, permitting virtual meetings and electronic or telephonic voting, and permitting a portion of the proxy or ballot identifying the unit or owner to be disclosed in record requests
  • Records: defining additional core records and other records the condominium is required to maintain, and setting retention periods for the additional records.

The lists above are not exhaustive.

Process for Making, Amending or Repealing By-laws

The process for having owners approve by-laws is the same for all by-laws, except for the voting thresholds described above. The board of directors must, by resolution, approve the by-law at a board meeting. The condominium must then call a meeting of owners to present the by-law to the owners. The preliminary notice of meeting must indicate that proposed changes to the by-laws will be presented at the meeting and the notice of meeting must include a copy of the proposed by-law. At the meeting, voting is typically conducted by recorded vote (ballot) and proxies casting votes. If approved by the required number of units, the by-law certificate must be signed by the board and sent to the lawyer for registration. The by-law is not effective until registered on title. Once registered, the by-law must be included in status certificates.

Wonderful Surprise to End 2020!

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We received some exciting news in the morning on December 31, 2020. Our firm won a Canadian Law Blog Award (Clawbies) in the category of Best Blogs and Commentary. Here is an excerpt:

You can find the entire list of winners here: https://www.clawbies.ca/ Congratulations to all of the winners and hall of fame inductees!

We would like to thank everyone who nominated us for this award. It means a lot to us to receive the support of our peers in the industry.

Thank you also to all of our readers. We hope you have enjoyed reading the blog so far. We will be back again in 2021 to bring you more content to help you live in and manage condominiums in Ontario.

The Curse of Covid: Recap of the Top 2020 Stories

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You might have noticed that Annie Bailey’s post (10 Condo Law Highlights of 2020) had a notable omission: COVID-19. Given the overwhelming number of legal changes, reported cases, and news about COVID-19 in condominiums, we decided to dedicate an entire year-in-review post to COVID-19 in 2020. Here is our list of the top ten legislative changes, reported cases, and resources that your condominium need to be aware of heading into 2021 while we continue to deal with COVID-19 and the pandemic.

Levels, Colours and Lockdown – The Spring started with the entire country in lockdown to prevent the spread of COVID-19. As the numbers started to fall, each Province adopted its own strategy for addressing the pandemic. In Ontario, we had levels or stages at one point, which was later changed to five zones (each with a different colour). Each zone has its own restrictions, such as on the number of people attending gatherings, and requirements, such as additional cleaning and contact tracing.

While we appreciate the effort of those working hard to draft all of these legislative changes (often on Friday evenings), it is nearly impossible for anyone to keep up. We previously wrote about the five new categories (https://ontcondolaw.com/2020/11/30/covid-19-five-new-categories/). You can also find a great summary from our friends at CondoAdviser here: http://condoadviser.ca/2020/11/confused-by-colour-zones-and-restrictions-try-our-covid-tool/condo-law-blog-Ontario and the Ontario government has prepare summaries as well, which you can find here: https://www.ontario.ca/page/covid-19-response-framework-keeping-ontario-safe-and-open.

Not sure which colour or zone your area is in? No problem. The Ontario government has a map to help you: https://covid-19.ontario.ca/zones-and-restrictions

https://covid-19.ontario.ca/zones-and-restrictions

Virtual Meetings – one of the many legislative changes during the pandemic was to permit condominiums to hold their owners’ meetings using technology that allows owners to vote using electronic or telephonic means (“virtual meetings”). These meetings were permitted before the pandemic, but condominiums had to pass by-laws to use them. The Ontario government has authorized, via temporary amendment to the Act, all condominiums in Ontario to host virtual owners’ meetings until May 31, 2021 without a by-law. This could be further extended if Covid-19 continues to be prevalent in the Spring of 2021. Need tips about chairing virtual meetings? Head over to the Lash Condo’s blog for some great tips.

It is important to note that initially the legislation extended the time for condominiums to hold annual general meetings. This temporary amendment was not extended and all condominiums must make sure they meet the required deadlines for their AGMs. See our previous post on the deadlines for 2019 and 2020 deadlines: https://ontcondolaw.com/2020/07/30/end-of-the-declared-emergency-your-most-common-condo-agm-questions-answered/ 2021 AGM deadlines should be unchanged.

Court Enforces Covid-19 Policies & Rules – there have been a few reported cases of condominiums successfully enforcing Covid-19 policies and rules where a resident was engaging in conduct that potentially put the other residents at risk. In one case an owner was prohibited from allowing contractors into their units to complete painting and other minor work. In another case an owner was prohibited from allowing contractors to repair a unit that was damaged as it was not an emergency or essential (the owner had another bathroom). See the post by our friends at DHA: https://dhacondolaw.ca/condo-law-news/court-upholds-corporations-covid-19-policy/

New Covid Condo Financing – at least one lender is providing condominiums with a short-term loan option to help with operating cashflow problems this year due to excess cleaning or higher receivables because of owners struggling to pay their condo fees. We previously wrote about this: https://ontcondolaw.com/2020/04/17/covid-19-update-new-financial-option-for-condominiums/

Online Dispute Resolution – it only took a global pandemic, but the courts and tribunals in Ontario have moved into the 21st century! Many matters can be heard via teleconference or videoconference instead of requiring everyone to attend in person. They have expanded the use of electronic filing and service. All of this should reduce costs to the parties and hopefully speed up the process. From a condominium perspective, many mediations and arbitrations can now be held online. There was a great article on online dispute resolution by Colm Brannigan and Marc Bhalla for the CCI-GRC’s blog: https://www.cci-grc.ca/blogs/view/stay-home-stay-safe-and-mediation-online

Webinars – there have been so many great webinars this year to help people keep up with all of the legislative changes related to the pandemic. Many of the CCI chapters have held regular webinars. CCI-GRC even held its first virtual conference in November! While many enjoy the social aspects of the in-person seminars and conferences, the virtual options have many advantages over the in-person ones. I predict a use of both in-person and virtual options once it is safe to have large gatherings again, but for now there are plenty of webinars available for you to keep up.

And that is a wrap for us on pandemic material for the year. Like many of you, we are tired of talking about Covid-19. It is our reality right now, but it does not need to be the only thing we talk about. We will get through this pandemic one way or another.

We wish you all a happy and healthy new year!

COVID-19: Five New Categories

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As you may know, in early November the Ontario government changed from its three stages COVID-19 response model to one with a more regional focus with five different levels. Today, we will briefly summarize the new model and key requirements for each level. It is impossible to provide an adequate summary of the very detailed regulations in a single post without making it 100s of pages in length. Instead, we will provide a list of other resources where you can find more detailed information.

Overview

As mentioned above, there are now five levels in the new model, each with its own restrictions. The five levels are:

Each level has different restrictions and requirements designed to prevent the spread of COVID-19. As the region enters a higher level, the restrictions increase and some businesses or services must close. There are a few similarities in the levels, including but not limited to:

  1. Masks and face coverings that cover the mouth, nose, and chin are required in all indoor public areas, subject to exceptions in regulations (i.e. not in a pool, children under the age of two, people with health conditions that make it hard for them to breathe properly).
  2. Some amenities, like steam rooms and saunas, must close in all levels.

It is important to keep in mind that some municipalities and local medical officers have added additional restrictions or requirements to the provincial health measures. As such, in addition to keeping on top of the provincial measures you should check with your local public health unit or municipality to see if there are any other requirements.

There are a number of regulations, public health orders, and other requirements that condominiums must comply with. A condominium that fails to comply, or ensure residents comply, could face significant fines and penalties.

Prevent – Green

Limits for events and gatherings held in private residences are 10 people indoors and 25 outdoors. Limits for organized public events in staffed facilities are 50 people indoors and 100 people outdoors.

Most amenities can remain open with some restrictions. For example, for recreational fitness facilities, 2m physical distancing is required and face coverings are required, except while exercising.

Protect – Yellow

The Protect level has the same limits on the number of people at gatherings as the Prevent level, but it adds conditions and restrictions. Operators must obtain contact information for tracing, create a safety plan, and limit the number of people who sit together to 6.

Most amenities can remain open with some restrictions. For example, for recreational fitness facilities, 3m physical distancing is required and face coverings are required, except while exercising. Operators must also use a reservation system for entry, obtain contact information, and create a safety plan.

Restrict – Orange

The Restrict level has the same limits on the number of people at gatherings as the Prevent and Protect levels, but adds further conditions. Operators must obtain contact information for tracing purposes, create a safety plan, limit the number of people who sit together to 4, and screen guests in accordance with the instructions issued by the Office of the Chief Medical Officer of Health.

Most amenities can remain open like with the previous levels with some further restrictions. For example, for recreational fitness facilities, all of the requirements of Protect apply plus the following: limit of 90 minutes per person and screening of guests is required in accordance with the instructions issued by the Office of the Chief Medical Officer of Health.

Control – Red

The Control level further limits the number of people at gatherings. For organized public events and gatherings, the limits are 5 people for indoor events and 25 people for outdoor events. Operators must obtain contact information for tracing purposes, create a safety plan, limit the number of people who sit together to 4, and screen guests in accordance with the instructions issued by the Office of the Chief Medical Officer of Health.

Most amenities can remain open like with the previous levels, but there are further restrictions on the number of people. The limit for gyms and fitness studios is reduced to 10 people indoors or 25 people outdoors. The other requirements of the previous levels apply, such as gathering contact information, screening of guests, limiting time to 90 minutes, and creating a safety plan.

Lockdown – Grey

The Lockdown level is the most restrictive. It prohibits gatherings, except with members of the same household. If physical distancing can be maintained, outdoor events of no more than 10 people are permitted. Indoor amenities must generally close, unless condominiums can make “contactless” or “curbside” delivery options work (i.e. delivering books or puzzles to units instead of allowing residents to enter the room to pick them up). Outdoor amenities may be open with some restrictions. There are other restrictions that may limit the use of the units by owners, such as real estate showings by appointment only and limits on short-term rentals after November 22, 2020.

Resources

If you want to find out which level a region is in you can check the Ontario website here: COVID-19 response framework: keeping Ontario safe and open | Ontario.ca

There are three regulations that describe the various requirements:

O. Reg. 82/20 (Lockdown)

O. Reg. 263/20 (Red-Control)

O. Reg. 364/20 (Green-Prevent, Yellow-Protect, and Orange-Restrict)

The Ontario government has also created a guide for holding meetings and events during the pandemic:

Guidance for meeting and event facilities during COVID-19 | Ontario.ca

The Ontario government has a summary on masks and face coverings:

https://www.ontario.ca/page/face-coverings-and-face-masks

Conclusion

Some parts of the regulations are not clear as far as their application to the common elements and amenities within condominiums. The requirements change frequently and with little notice. There are additional requirements at the municipal level that do not always match the requirements at the provincial level. I find it hard to keep track of it all, even as a lawyer who knows how to find legislation and other requirements. Condominiums should ask their managers and lawyers for advice when they need it, especially as their region moves from one level to another.

Solicitor-Client Privilege Waived by Discussing Bills with Owners

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A few weeks ago I spoke as part of a panel at CCI National’s Conference. The case that I spoke about was a decision of the Ontario Condominium Authority Tribunal (CAT) about solicitor-client privilege. Given the frequency at which I see clients inadvertently waive solicitor-client privilege, I thought it might be good to review the case in this post.

The Facts

The case was an appeal from a decision of the CAT. The owner requested copies of all legal bills referencing his own unit. He made the request after the condominium wrote a letter to all owners concerning legal expenses that it had incurred. In the letter the condominium suggested that a “small group of owners” was responsible for the increased legal fees. The Tribunal adjudicator found that, given the size of the building, it was reasonable to assume many if not most of the unit owners knew the members of the small group who caused the legal costs to be incurred.

The letter described the board’s efforts to manage the increased legal costs for record requests since the amendments were made in November of 2017. It blamed the small group for trying to micromanage and undermine the efforts of the board by “abusing their right to records”. The letter explained that each of the 28 requests required input from legal counsel and suggested that the condominium had spent $17,698.71 in legal costs to review the records requests that could have been used on other projects. The board acknowledged the right to request records, but strongly objected to fishing expeditions.

Tribunal

The condominium denied the request on the basis of common law solicitor-client and litigation privilege. It also relied upon s.55(4)(b) of the Condominium Act, 1998, which relates to records related to actual or contemplated litigation. The Tribunal concluded that the condominium was required to disclose the requested records because it had waived privilege by sending the letter to all owners. The Tribunal adjudicator ordered the condominium to produce the legal invoices but it could redact any reference to the substance of legal advice.

Appeal

The condominium appealed the decision. The Divisional Court concluded that the CAT adjudicator did not err in law when she determined that the condominium waived privilege to the legal invoices. The appeal was dismissed and the condominium paid the owner $10,000 toward his legal costs.

The Divisional Court decision focuses primarily on waiver of privilege. It reaffirmed basic principles about solicitor-client privilege, such as solicitor-client privilege resides in the client and may only be waived by the client. Waiver of part of a communication may be held to be waiver of the entire communication. Given the scope of information contained in the condominium’s letter to all owners, it was appropriate to conclude that the condominium had waived privilege over the individual bills documenting the legal expenses incurred. By permitting redaction of the legal advice contained in the bills, the adjudicator protected the privileged advice itself.

The Divisional Court also upheld the decision in relation to the Condominium Act, 1998, finding that subsection 55(6) of the Act should be read as consistent to common law principles of waiver. This includes the principle that when some disclosure of a protected document has occurred, fairness and consistency may require that the remainder of a communication be disclosed.

Takeaways

Condominiums must be careful when discussing or disclosing anything related to advice sought from the condominium’s lawyer, including invoices or the subject-matter of advice sought. This is especially true where there is ongoing litigation or contemplated litigation.

I still see clients sending entire unredacted invoices to owners when charging the costs back to the owner for non-compliance of some sort. Stop that. Condominiums should either redact the entries that contain the privileged information or ask the lawyer to provide an invoice without any detail (i.e. just the total owing). Once you send that invoice out you will have waived privilege to it and possibly any advice described within the invoice. If you have any doubts about which records and information may be privileged ask the lawyer involved.

Upcoming Amendments: January 1, 2021

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On January 1, 2021 further amendments under the Protecting Condominium Owners Act, 2015 will come into force. These amendments relate to the “Condominium Guide” that must be delivered by the declarant to purchasers of new condominiums. It will be provided with the disclosure statement and a purchaser will not be bound by an agreement of purchase and sale until the declarant has provided the Condominium Guide in addition to the other required documents.

The Condominium Authority of Ontario (CAO) has been delegated authority to create the Condominium Guide. It is now available on its website: https://www.condoauthorityontario.ca/resources/condo-buyers-guide/

CCI Grand River Chapter’s First Virtual Conference is Coming Up!

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On November 20 and 21, 2020, the Grand River Chapter of CCI is hosting its first Virtual Condo Conference and Tradeshow. The two day event is packed with educational sessions and opportunities to chat with exhibitors and sponsors. I might be biased because I am one of the co-chairs of the conference committee, but this event is one you don’t want to miss! Sponsorships almost sold out in the first week they were available and we’ve had several requests to add more. I won’t describe all the events and activities planned (you need to attend to see for yourself!), but below are some of the highlights.

Friday is only for condo managers. It will include a secret session to start off the day with some education and entertainment. It will be followed by a brief break before we get into an exhibitor roundtable session where attendees will engage in discussions with five exhibitors. There will be another brief break and the day will end with the ever-popular legal panel where three lawyers will discuss (and debate) recent cases and legislative changes! Not a condo manager? Don’t fret! The legal panel will be recorded and available for viewing later by the other attendees.

Saturday is open to all attendees. It includes two traditional panel sessions, each with three topics to choose from. Having trouble choosing which session to attend? Not a problem with a virtual conference as you can always watch the other sessions later since they are all recorded. Talk about extra value with your ticket! There is some time for chatting with exhibitors and sponsors again around lunch and the day will end with an “Ask the Experts” session where the panel (which includes a manager, auditor, engineer, and lawyer) will answer questions posed by the attendees throughout the day!

There will be prizes for those who attend live (as opposed to watching the videos later) so be sure to set aside part of your day on November 20 and 21, 2020 to join us! You can register on the Grand River Chapter’s website now: https://www.cci-grc.ca/events/2020/11/20/2020-grand-river-virtual-condo-conference. Once you register you will receive an email with a link and you will be able to access the conference website early to start chatting with sponsors, exhibitors, and speakers.

Check out this video teasing the virtual event: https://www.youtube.com/watch?v=ZleVV8VXEx4

With our firm’s Gold Sponsorship we received some complimentary passes to the event. Please email me if you are interested in attending the event for free. There are a limited number so it will be first come, first served.

Virtual or In-Person Meetings During a Pandemic: Which is Best?

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Unlike in past years where I would have attended several owners’ meetings in a week during the busier times of the year, this year I have only attended a handful of in-person owners’ meetings since March. Most clients initially deferred their AGMs in the Spring. Since the deadline for holding AGMs will not be extended by the Government of Ontario, most condominiums have decided to hold their AGMs using electronic means or by teleconference (“virtual meetings”).

While the Government of Ontario has indicated that it will not extend the time to hold AGMs, it has extended the temporary amendments that allow condominiums to hold their meetings using virtual means without passing a by-law. The deadline was initially November 21, 2020, but it has been extended to May 31, 2021. As such, all condominiums have the legal authority to hold their meetings using virtual means until at least May 31, 2021.

The question is: Will you hold your meeting in-person or move to a virtual meeting?

Virtual Meetings vs. In-Person Meetings

I have already posted about some of the advantages and disadvantages of virtual requisition meetings: https://ontcondolaw.com/2020/07/13/virtual-requisition-meetings/ Similarly, I did a blog post for CCI’s Grand River Chapter on virtual meetings and recommendations for effectively communicating with owners: https://www.cci-grc.ca/blogs/view/communicating-in-the-digital-age-condo-edition. In short, the pros and cons of virtual meetings tend to be:

ProsCons
Easier for chairperson to control the meeting.Technology can be challenging for some owners.
Less costly if paying professionals (i.e. lawyer, engineer, auditor) to travel to the meeting.Accessibility issues with some of the options.
More flexibility about the time of the meeting (i.e. hold over lunch break instead of in the evening).Costs of hosted virtual meeting can be prohibitive for some condominiums.
Common pros and cons of virtual condo meetings.

In addition to the above, virtual meetings also have the added benefit of minimizing exposure to COVID-19 and other infectious diseases. Even if you aren’t concerned about catching it yourself, you should be concerned about the potential liabilities of your condominium if you host a meeting in-person and someone falls ill because of it.

The most common concern with virtual meetings is a perception that the technology is too complex for some owners to use. Some have concerns about the accessibility features of the virtual meeting platforms. In my experience, in-person meetings tend to be less inclusive than virtual meetings right now. This may seem counter-intuitive, but hear me out. For one, some people cannot attend meetings in person because they are in a high-risk group and do not want to put themselves at risk. Others may have returned from a trip and need to quarantine. Other owners may have jobs that expose them to COVID and they do not want to infect their neighbours by attending the meeting. While the intention with in-person meetings is often to be more inclusive by avoiding the technology required for a virtual meeting, in-person meetings can actually be less inclusive for the reasons above.

There are a number of other considerations with in-person meetings that you should be aware of right now. You need to monitor the restrictions on gatherings to ensure your condominium is complying with any at the time of the meeting. These restrictions change frequently right now, so be prepared to check at least once a day. You will also need to find a large space that will permit everyone to be at least 2 metres apart. You might want to consider renting microphones for the meeting as the extra distance can make it difficult for people to hear each other, especially with masks on. You will also need to enforce distancing and mask compliance throughout the meeting. You should have a plan prepared in the event someone refuses to wear a mask or keep a safe distance. Who are you going to call? What are you going to do? Lastly, while you might have been able to get away with meetings held outdoors during the warmer month, this is not a viable option with winter quickly approaching. You cannot expect owners to sit outside for an hour or two when it is -10 degrees Celsius, raining or snowing, or dark.

In my opinion, the most inclusive type of meeting right now is a virtual meeting through a hosting system that allows owners to call into the meeting using an ordinary landline telephone. This option eliminates concerns about spreading COVID-19 while minimizing potential technology issues with owners who may not be familiar with virtual meetings. If they have called a 1-800 number they can manage to call in for the virtual meeting. Voting can be done using proxies (in paper or electronic format) to minimize technology issues with voting during the meeting, which can be more common if you hold the meeting without a virtual meeting host. Spend the time that you would spend searching for a venue and ensuring all necessary precautions are taken to prepare the owners for the meeting. Send the initial notices earlier than required so owners have an opportunity to download any programs that they may need, purchase a microphone or headset, and speak with their techy family member to get some pre-meeting training. Provide detailed instructions for logging into the meeting. Once the meeting starts, go over the unique features of the virtual meeting system, such as how to ask questions, how to vote, etc.

I appreciate that some of you prefer in-person meetings (I do too), but the best option right now is a virtual meeting. You can return to in-person meetings when it is safe for all of your owners to do so.

The Condo Authority Tribunal (CAT) Hears New Matters Starting TODAY!

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Starting on October 1, 2020, the Condominium Authority Tribunal (CAT) will begin to hear more than record request disputes. The CAT’s jurisdiction has been expanded to hear most of the common disputes in condominiums. Specifically, the CAT will hear disputes with respect to any of the following provisions of the declaration, by-laws or rules: pets and other animals; vehicles (the definition is very broad, including boats, aircraft, and vehicles powered by muscular power); and parking and storage.

The CAT will also have jurisdiction to hear disputes related to indemnification or compensation claims related to any of the disputes that it now has jurisdiction over. For example, if the condominium brings an application to the CAT because an owner is not complying with a provision in the declaration about pets it will also be able to ask the CAT for a ruling on its right to be indemnified by the owner according to its declaration.

Section 132 of the Condominium Act, 1998, will also be amended on October 1, 2020 to add the following:

Non-application

(4.1) Subsections (1) and (4) do not apply to any matter in dispute for which a person may apply for resolution under section 1.36 to the Condominium Authority Tribunal established under Part I.2 if the Tribunal has been established under that Part. 2020, c. 14, Sched. 1, s. 18 (1).

This means that mediation and arbitration are not prerequisites for an application to the CAT, which makes sense because the CAT has its own mediation process. It will be interesting to see how this change is interpreted. Do we think mediation and arbitration will continue to be used for these disputes despite the CAT’s jurisdiction being expanded to hear them?

While the expansion of the CAT’s jurisdiction is sure to result in the resolution of matters with less costs being expended than with court and arbitration, there is a significant gap in the CAT’s Rules right now. The CAT’s Rules currently indicate that the CAT will not order a party to pay legal fees “unless there are exceptional reasons to do so”. The CAT’s Rules were amended on September 21, 2020 (I assume to address the expansion), but this rule was not changed. The Rule made sense when it was only record request disputes and the CAT was deciding if the condominium had failed to produce a record when it was required to do so, but now that it is going to hear cases where owners (sometimes blatantly) disregard the declaration, by-laws, or rules, it seems grossly unfair to saddle the innocent owners with the costs of the condominium’s enforcement efforts. Will the expansion of the CAT’s jurisdiction actually result in fewer of these nuisance and enforcement issues being resolved because of the possible costs?

Stay tuned. Hopefully we see further changes to the Rules in the days to come to address this imbalance.