CONDO COVID Q & A

pexels-photo-4031867.jpeg
Photo by Edward Jenner on Pexels.com

We are still receiving dozens of questions about COVID each week, ranging from how to host meetings to how to reduce potential liabilities. It looks like COVID is here to stay for a while, so we thought that we would provide some answers to the most common questions from our condominium clients.

Mandatory Masks

Q: Are masks mandatory in condominiums?

A: Not in all parts of Ontario. Some municipalities have implemented mask by-laws that require masks in some parts of condominiums, most often the interior common areas like the elevators, hallways, and amenity areas. Some of the by-laws require condominiums to create policies regarding masks and post specific signage on the entrances. Masks are required (at least in part) in most jurisdictions in Ontario, including but not limited to: Toronto, Ottawa, Peel (Mississauga, Brampton, and Caledon), Hamilton, Waterloo Region, Halton Region (Burlington, Oakville, Milton, and Halton Hills), and Windsor. Condominiums can also create new rules or policies requiring masks even if the local municipality does not require it. A rule is generally seen as more enforceable, but a recent case suggests that the courts may enforce policies in light of the unique situation we find ourselves in.

Meetings & Gatherings

Q: Can / should we hold our meeting in person?

A: Likely not. The Ontario government has restricted gatherings to 10 people inside and 25 people outside. Most lawyers appear to be of the opinion that these restrictions apply to condominium meetings. Even if the condominium is small enough to comply with the guidelines, the potential risks of holding a meeting in person make virtual meetings preferable for the foreseeable future, especially in areas where the daily numbers of reported infections are on the rise, like Toronto, Peel and Ottawa.

Q: Can we hold our AGM virtually without a by-law?

A: The temporary amendments to the Act that were made this past summer permit condominiums to hold meetings using electronic or telephonic means even if a by-law has not been passed by the condominium. These amendments are currently set to expire November 21, 2020. There is some speculation that the period could be extended, but there are no guarantees that will happen. The best option is to hold a virtual meeting before November 21, 2020 to pass a by-law permitting the condominium to hold virtual meetings. This way the condominium will be able to hold virtual meetings virtually even if the temporary amendments are not extended. If this is not possible, it may still be better to hold virtual meetings without a by-law than hold meetings in person during the peak of the second wave. Condominiums should get legal advice about possible options for holding meetings during the pandemic, especially since most condominium meeting hosts are booked into 2021.

Q: Can we hold our board meetings via teleconference without a by-law?

A: Yes. The amendments to the Act in 2017 removed the by-law requirement. All condominiums can use teleconference for their board meetings without a by-law so long as the directors consent. (Note: the consent requirement was temporarily removed this past summer, but it is expected to revert back at the same time as the other temporary amendments).

Amenities

Q: Can / should we keep the amenities open? Can / should we keep the amenities closed?

A: This is a tougher one to answer. It depends so much on the amenity area, the residents, the options for limiting exposure, etc. At a minimum, condominiums will need to comply with any restrictions in place at the time, such as limits on gatherings and mask requirements. Condominiums should also consider the value of the amenity and potential risks. Some amenities provide residents an opportunity to exercise, which is good for overall health and wellness. Other amenities provide an opportunity to learn or relieve stress, like a library. While amenities pose additional risks, many risks can be reduced by limiting the number of users at a time and increasing sanitization. Is there anything wrong in keeping amenities closed during the pandemic? No. It really depends on the condominium.

In-Suite Renovations

Q: Can the condominium prohibit owners from completing work in their units?

A: Yes, condominiums can create policies or rules restricting renovation work in the units. There are now multiple cases confirming the right of the condominium to restrict work in the units right now. This doesn’t mean that all work should be prohibited, but it is reasonable for condominiums to have restrictions in place. For example, some condominiums have prohibited non-essential work, but will permit essential work like plumbing repairs. Other condominiums have guidelines for the contractors carrying out the work to minimize the risks to the other residents.

CCI Grand River Chapter’s Virtual Conference Registration is Now Open!

photo of people doing handshakes
Photo by fauxels on Pexels.com

The Grand River Chapter is hosting its first Virtual Condo Conference & Tradeshow on Friday, November 20th and Saturday, November 21st, 2020. The Friday event is open to property managers only and will include a special event to kick off the conference, time with a few of the exhibitors in a roundtable format, and ends with a legal debate (which I’m thrilled to be participating in). The Saturday is open to all and will include a number of sessions, ending with an Ask the Experts session featuring various professionals.

Registration for attendees, sponsors and exhibitors is now open. I hear sponsorships are going fast, so make sure you purchase your sponsorships early to avoid disappointment!

For more information, including the agenda, check out the Grand River Chapter’s page: https://www.cci-grc.ca/events/2020/11/20/2020-grand-river-virtual-condo-conference

Government Will NOT Provide Further Extension to Deadlines to Hold AGMs

people discuss about graphs and rates
Photo by fauxels on Pexels.com

The Ontario Government recently confirmed that it will NOT make further amendments to the Condominium Act, 1998, to permit condominiums to defer their annual general meetings beyond the deferral period that was previously granted during the declared emergency period. In part, the release stated:

Annual meetings are an essential component of the democratic functions and self-governance of corporations. They also represent an important opportunity for owners, members or shareholders to raise issues and to monitor the fiscal health, performance and governance of their corporations. As such, there will be no further extensions of annual meeting timelines.

While deferring the AGM made sense for a period of time while we assessed the situation, AGMs should not be deferred for several more months or possibly years while we wait for the pandemic to end. We need to adapt to the new normal. As such, condominiums must hold their AGMs in the prescribed time (see our previous post for more information on the deadlines: https://ontcondolaw.com/2020/07/30/end-of-the-declared-emergency-your-most-common-condo-agm-questions-answered/).

The Government did hint that they are considering extending the temporary amendments to permit virtual meetings and electronic voting to continue longer than the current period without a by-law. The release stated:

In order to ensure that corporations continue to be able to conduct meetings while protecting the health of Ontarians, the ministry is exploring changes that would extend the in-effect period of the temporary amendments related to virtual meetings and will communicate further updates as appropriate.

We understand that most of the virtual meeting providers are booked solid until 2021 now with all of the condominiums in Ontario moving to a virtual meeting for their AGMs and other meetings. Given the limited availability of the virtual meeting providers, hopefully the Government will consider some other potential solutions, such as formally recognizing “proxy only” meetings as appropriate for less controversial business.

For condominiums with deadlines approaching and no virtual meeting providers available to host the meeting, you can consider hosting the meeting on your own (or with the assistance of your lawyer or manager) or finding a venue to host the meeting in person with physical distancing requirements maintained. For larger condominiums, neither of these solutions is ideal, but both can work with a little extra effort.

Stay tuned!

Upcoming Events!

auditorium benches chairs class
Photo by Pixabay on Pexels.com

Every few months I like to post about some upcoming events that may be of interest to condominium owners, directors, managers, and others. Today, I’ll briefly describe a few of the upcoming events in Ontario.

CCI GRC Level 100: Introduction to Condos (September 12, 2020 9 am)

The Grand River Chapter of CCI is holding its Level 100 course on September 12, 2020. This course is designed to provide an introduction to condominiums for owners and new directors. Register now:

https://www.cci-grc.ca/events/2020/09/12/level-100-introduction-to-condos

CCI GHC Enhanced Virtual Director’s Course (Various dates starting September 14 at 7 pm)

The Golden Horseshoe Chapter of CCI is holding its first ever virtual directors course over 8 nights in September and October. I will be kicking it off on night one with a discussion of the governing documents, the role of directors, records, and privacy issues. For more information, or to register, click here:

https://cci-ghc.ca/events/2020/09/14/enhanced-directors-virtual-course-series-part-1-of-8

CCI GHC CondoTalk (September 15 at 12 noon)

The Golden Horseshoe Chapter of CCI is hosting a virtual webinar over lunch to discuss the authority of the board of directors and dealing with difficult owners. Register now:

https://cci-ghc.ca/events/2020/09/15/condotalk-that-owner-did-what

CAI’s First Virtual Condo Conference (September 16th and 17th)

CAI Canada is holding a two-day virtual conference. The conference includes a virtual exhibit hall with numerous opportunities to chat with exhibitors. There are also various sessions planned, including a keynote, a legal panel, COVID panel, and concurrent sessions on maintenance projects, AGMs, telecommunications, ethics, electric vehicles, and chargebacks. Register now:

https://bondexec.eventsair.com/cai2020/reg2020/Site/Register

CCI London’s AGM & Special Presentation (September 22, 2020 at 11:30 am)

CCI London is hosting its AGM using Zoom with a special presentation on condo safety to follow the business portion of the meeting. Register now:

https://www.cci-sw.on.ca/events/2020/09/22/annual-general-meeting-special-presentation

Lastly, remember to save the date for the CCI Grand River Chapter’s first virtual condo conference on November 20 and 21. The Friday is for property managers only and includes a legal panel discussion. The Saturday is open for all members and non-members and will include 3 concurrent sessions, a Q & A session, and exhibitor hall. Registration and sponsorship opportunities will be available starting September 15, 2020! Space is limited.

The CAT is Growing…

animal animal photography big big cat
Photo by Richard Verbeek on Pexels.com

As you may know, Bill 159, Rebuilding Consumer Confidence Act, 2020, received royal assent on July 14, 2020. Ten statutes are affected by Bill 159, including the Condominium Act, 1998, the Condominium Management Services Act, 2015, and legislation related to the construction of condominiums. On August 25, 2020, a new regulation was made under the Condominium Act, 1998 (O.Reg. 465/20) to expand the jurisdiction of the Condominium Authority Tribunal (CAT).

On October 1, 2020, the CAT will start to hear disputes about people, pets and parking (as well as other disputes). The CAT’s jurisdiction is described in O.Reg. 179/17. Effective October 1, 2020, the following will be added to the regulation:

Note: On October 1, 2020, the day subsections 18 (1) and 19 (2) of Schedule 1 to the Rebuilding Consumer Confidence Act, 2020 come into force, subsection 1 (1) of the Regulation is amended by striking out “and” at the end of clause (b), by adding “and” at the end of clause (c) and by adding the following clause: (See: O. Reg. 465/20, s. 1 (1))

(d) subject to subsection (3), a dispute with respect to any of the following provisions of the declaration, by-laws or rules of a corporation:

(i) Provisions that prohibit, restrict or otherwise govern pets or other animals in a unit, the common elements or the assets, if any, of the corporation.

(ii) Provisions that prohibit, restrict or otherwise govern an automobile, motorcycle, van, truck, trailer, bus, mobile home, farm tractor, bicycle, motor-assisted bicycle, motorized snow vehicle, motorboat, rowboat, canoe, kayak, punt, sailboat, raft, aircraft, device used to facilitate the transport of a person with a disability, or any other vehicle drawn, propelled or driven by any kind of power, including muscular power, in a unit, the common elements or the assets, if any, of the corporation.

(iii) Provisions that prohibit, restrict or otherwise govern the parking or storage of items in a unit, an asset, if any, of the corporation, or any part of a unit, an asset or the common elements, that is intended for parking or storage purposes.

(iv) Provisions that govern the indemnification or compensation of the corporation, an owner or a mortgagee regarding a dispute described in this clause.

In short, the CAT will hear disputes about the declaration, by-laws or rules that relate to: 1) pets; 2) parking and vehicles; 3) parking and storage areas; and 4) indemnification rights related to any of the other disputes within the jurisdiction of the CAT.

Of note, the regulation goes on to state that the CAT will not have jurisdiction for any of the areas described above if the dispute is also related to section 117 of the Act (dangerous condition or activity), section 98 (changes made to common elements by owners), or subsection 24.6(3) of O. Reg. 48/01 (electric vehicle charging stations).

It will be interesting to see how the condo industry reacts to the CAT’s expanded jurisdiction.

WARNING! At Capacity for 2020

pexels-photo-3962259

This post will be a short one. I wanted to let people know that many of the companies offering virtual condominium hosting services are almost booked for the remainder of 2020 for hosted events (i.e. with moderators). Some of the providers have other options available (i.e. online proxies, electronic voting only, no moderator), but you’ll want to reach out to your providers ASAP if you are looking for a full package. There may be capacity issues for some of the alternatives as well, so it is best to get your AGM scheduled ASAP if you haven’t done so yet. Continue reading

End of the Declared Emergency: Your Most Common Condo AGM Questions Answered

pexels-photo-1816739

As you probably know, the declared emergency in Ontario came to an end on July 24, 2020, with the enactment of Bill 195. I’ve received several emails and calls today from clients looking for advice on what Bill 195 means for condominiums. The most significant concern seems to be the requirement for holding AGMs and the temporary extensions for holding AGMs that were provided for in Bill 190. Today I’ll answer a few of the most common questions. Continue reading

Update on Previous Post – Fight Fire with Fire: Seeking Court Orders to Amend the Declaration

brown beside fireplace near brown wicker basket

Photo by rawpixel.com on Pexels.com

Last year we posted about a case where a condominium commenced an application to the Superior Court of Justice for an order amending its declaration. The condominium wanted amendments to its declaration because of a repair and maintenance issue with the fireplaces in the building. A group of owners with fireplaces filed their own application seeking to have the chimney flues deemed part of the common elements, which the condominium was responsible for maintaining and repairing. They also sought an order requiring the condominium to maintain and repair the chimney flues.

To summarize, the court ordered the declaration amended to make the fireplaces exclusive use common elements, but refused to amend the declaration to require the owners to maintain and repair the fireplaces. As a result, the condominium would be responsible for the repair of the fireplaces while the owners and condominium will continue to share the obligation for maintenance of the fireplaces. Our previous post is available here:https://ontcondolaw.com/2019/08/02/fight-fire-with-fire-seeking-court-orders-to-amend-the-declaration/ Continue reading

Summer Reading: Condominium Authority Tribunal (CAT) 2020

pexels-photo-2383122

The courts might have slowed down because of the pandemic, but the Condominium Authority Tribunal (CAT) appears to be unaffected by the pandemic. The CAT is predominantly online with less rigid rules than traditional courts, so this makes a lot of sense. It is relatively easy for online processes to continue in most cases. Here are some of the highlights from the CAT this summer. Continue reading

Reminder: Feedback on Future Amendments to Act Due August 14, 2020

feedback

As you may have heard by now, the Ontario government is looking for feedback on its latest proposals for future amendments to the Condominium Act, 1998. Specifically, it appears that the government is planning to move forward with implementing a “Condo Guide” that would explain, in plain language, basic information for purchasers of new condominiums on such important matters such as the rights and responsibilities of owners, occupiers, and directors. The guide would be prepared by the Condominium Authority of Ontario (CAO) and developers would be required to provide a copy of the Condo Guide to purchasers with other disclosure documents.

Interestingly, the CAO has already developed a Condo Buyer’s Guide, which is available on its website: https://www.condoauthorityontario.ca/resources/condo-buyers-guide.pdf That said, the proposed table of contents suggests that the new Condo Guide will be more comprehensive, including topics such as purchasing a unit (new and resale), moving into a pre-construction condominium, condominium living, troubleshooting, and a glossary of key terms.

The government intends to implement the changes on December 1, 2020. Comments are due by August 14, 2020. Comments can be made on the government website at: https://www.ontariocanada.com/registry/view.do?postingId=33587&language=en