Get to Know the Team: Daniel Brockenshire

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Practice Areas

Daniel works with both the condominium management group and the condominium and subdivision development group.

Daniel is currently working with the condominium and subdivision development group on a variety of development projects with clients across Ontario including residential condominiums, commercial condominiums, condominium conversions, and subdivisions. He also chairs turnover meetings for clients’ registered condominium projects.

Recently, Daniel has been spending much of his time with the condominium management group working on borrowing by-laws for condominiums across Ontario as well as amalgamations for condominiums in Waterloo and London. The amalgamation process is time-consuming, but the goal is helping clients achieve significant cost savings within a few years following amalgamation by consolidating previously duplicated costs (ex. reserve fund studies, audited financials, AGMs, service contracts, etc.).

Involvement

Daniel is involved in the Canadian Condominium Institute (CCI) especially the London and Grand River Chapters. You may have seen him recently at one of the conferences enthusiastically recruiting visitors at the firm’s booth to try the golf putting challenge. Keep an eye out for its return at a future conference!

Personal

Daniel enjoys spending time with family and friends and as most major sports seasons have now kicked off – cheering on his beloved Manchester United, Toronto Maple Leafs, and Oakland Raiders. He also loves traveling and recently had a fantastic hiking experience in Cornwall, England.

Contact

E-mail or phone.

For more information, please see the firm’s website: www.rcllp.ca

 

To Borrow or Not to Borrow? How Does the Process Work: Borrowing By-laws

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Photo by: Tom Reedy

We previously blogged about common myths regarding condominiums utilizing borrowing by-laws here https://ontcondolaw.com/2017/07/12/condo-financing-myths-debunked/

Condominiums have three ways to raise money

  1. Increasing monthly common expenses;
  2. Special assessment of owners; or
  3. Borrowing money from a lender.

As we noted condominiums typically use borrowing by-laws when they have to raise a substantial amount of money within a short period of time.

There can be a multitude of reasons a condominium may want to consider a borrowing by-law: an unexpected need to complete a major common elements repair/maintenance project before projected in the reserve fund, unexpected damage from a significant weather event (ex. the significant windstorm in southern Ontario in May 2018), or the desire to complete replacements related to a major common elements project (ex. installing new windows as part of a building envelope EIFS project). Continue reading

Kitec – Don’t Forget the Deadline to Submit a Claim

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It seems like many years since the Ontario Superior Court of Justice entered an Order for Approval of Class Action Settlement back on November 29, 2011 and the Kitec Settlement Agreement (“Kitec Settlement”) for defective plumbing systems became effective way back on January 9, 2012.

I suppose 7 years is a long time depending on how you look at things, especially as discussions about Kitec have also seemingly faded into the background at industry events in recent years as new hot button topics  such as amendments to the Condominium Act, 1998, cannabis legalization, and electronic vehicles have all arisen.

We last wrote about Kitec in March of 2017 reminding condominiums the first step should be to contact their engineer to determine if the condominium has a Kitec plumbing system, then filing a claim and/or consulting the Condominium’s lawyer. You can read the post here: https://ontcondolaw.com/2017/03/07/kitec-piping-claims/

So here again is a friendly reminder for condominiums in Ontario that the deadline to submit a claim form to be eligible to be included in the Kitec Settlement is fast approaching: January 9, 2020.

You can find the claim form, information regarding the case/settlement, and FAQs here:  http://www.kitecsettlement.com/index.cfm

Finally, just a few key reminders about completing the claim form and providing supporting documentation to file a claim:

  1. Complete the whole form – if sections/questions are inapplicable remember to note “N/A”
  2. Make sure to provide copies of invoices and cancelled cheques for plumbing services . My understanding is banks can be quite slow to provide old archived cheques to the condominium so make sure to get on this request quickly.
  3. If possible – provide a sample of a failed Kitec fitting and an engineering report to support the condominium’s claim; and
  4. Finally, if the condominium has suffered numerous plumbing failures over the years it may be best to complete one comprehensive claim. Already made a claim but the condominium has suffered further plumbing failures? Submit a new claim. Organizational Tip: Use a spreadsheet to track the cancelled cheques and plumbing invoices to be submitted with the claim.

Highlights from the 22nd Annual CCI-T Conference

 

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Photo by Pixabay on Pexels.com

It was a pleasure for the Robson Carpenter team to see and chat with many familiar faces at the conference this past weekend. The conference was full of fantastic exhibitors and informative sessions on a broad spectrum of issues, challenges, and anticipated changes in the condominium industry. There were so many great speakers, panels, and topics in the various sessions that I often wished I could be in two places at once to listen in on concurrent sessions!

In no particular order, here are some of my favourite moments and takeaways from the conference:

Discussion of Security Issues

I particularly enjoyed the Q&A style insights, advice, and perspectives from the panel in “Palace or Prison: Security Through Environmental Design” with security topics ranging from lighting, mirrors, cameras, and signage, to communication systems for communities. Of note, the panel’s emphasis on unique situations and issues for different types of condominium communities from massive high rises to townhouse complexes was very engaging.

Proxies

It was interesting, if unsurprising, to hear numerous speakers and people I interacted with on the tradeshow floor express ongoing frustration with the length and complexity of the new prescribed form. Clearly this form continues to be a source of frustration for managers, boards, and owners. On the bright side, representatives from the Condominium Authority of Ontario (“CAO”) did highlight they have created an information guide as well annotated sample proxies available on their website (link here https://www.condoauthorityontario.ca/en-US/resources/proxy-overview/ ) to assist owners in understanding how to fill out these forms. Hopefully more refinements to the form are planned by the government in the future.

CAO and CMRAO Statistics

Interesting numbers on the 1st Year of the CAO and Condominium Management Regulatory Authority of Ontario (“CMRAO”) – representatives of the CAO and CMRAO shared some fascinating statistics about their respective 1st anniversary of operation:

  • The CAO’s database estimates there are over 11,000 condominium corporations in Ontario. Of those, 85 % have registered with the CAO and 84% have provided the required returns (transitional and annual)
  • Over 2,800 licensees registered with the CMRAO
  • Over 300 condominium management companies with 3 companies employing over 100 property managers each.

The Condominium Authority Tribunal (“CAT”) which currently has jurisdiction over records disputes under section 55 of the Condominium Act, 1998 (the “Act”) already has 127 active cases. We previously posted about some of the first decisions released by CAT here (link).

Quorum

There were some interesting questions and discussions in one session regarding condominium corporations that have passed by-laws increasing the quorum threshold from the 25% required by the Act for the 1st and 2nd attempts to call an owners meeting. My opinion, and one shared by a few other lawyers I have spoken to, is that the most recent amendments of the Act in subsection 50(1.2) have voided those higher quorums (ex. 33 1/3 %) thresholds in by-laws. Quorum can be no more than 25%. If a corporation wants to increase the threshold from 15% on the 3rd and subsequent attempts to call an owners meeting, the quorum increase is restricted to remaining at 25% by 50(1.2) of the Act.

Exhibitors

On a final note, the exhibitors with booths that had a live-magician, hockey memorabilia collection, and handwriting analyst were captivating and very popular draws for many.

If you weren’t able to attend this year’s conference, don’t forget the Golden Horseshoe chapter of CCI has its annual conference coming up in the spring of 2019. We will have a booth and both Craig and Michelle will be speaking.  Definitely something to look forward to attending as we slip into the winter season!

Ontario Election – New Canvasser Rules

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We previously wrote about provincial and federal elections rules relating to condominiums, especially regarding election signs here: https://ontcondolaw.com/2014/05/15/ontario-election-how-does-it-affect-your-condo/  In anticipation of the upcoming election we take this opportunity to provide some information about canvassers for elections.  Continue reading

Update: Improper Use of the Indemnification Clause

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In July 2016, we wrote a post about Pearson v Carleton Condominium Corporation No. 178, 2012 ONSC 3300, a case where the condominium registered a lien against an owner’s unit for legal costs incurred by the condominium in relation to three unsuccessful small claims court actions brought by the owner. The court found that the indemnity clauses in the declaration that the condominium relied on did not apply to recovering the legal costs and ordered the condominium to discharge the lien.

We also noted a Small Claims Court decision where leave to appeal was granted because the judge relied on a general indemnity clause similar to Pearson v CCC No. 178 as authority for the Condominium to charge legal fees to the unit owner.

The Divisional Court of the Superior Court of Justice recently released its decision in Wexler v Carleton Condominium Corporation No. 28, 2017 ONSC 5697; the subject of that appeal.

While the majority of the decision deals with the standard of review for an award of costs, Justice O’Bonsawin does address the applicability of the general indemnity clause in the declaration for claiming legal costs. Specifically, at paragraph 16, she states,

In Pearson v. Carleton Condominium Corporation No. 178, 2012, ONSC 3300, the corporation submitted that the Condominium Corporation’s Declaration permitted it to recover all legal costs incurred related to the litigation by adding these costs to the common expenses of Pearson’s unit. The language in the Declaration in Pearson is very similar to that of this case. Mr. Justice Smith concluded that the article in the Condominium Corporation’s Declaration did not apply in that case because there had been no loss, damage or injury to the common elements caused by any act or omission by Ms. Pearson. I come to the same conclusion in Ms. Wexler’s case; Declaration X is not applicable as there has been no loss, costs, damage, injury or liability suffered or incurred with respect to the common elements and/or all other units caused by an act or omission by Ms. Wexler.

The provision in the declaration Justice O’Bonsawin referred to above reads as follows:

Each owner shall indemnify and save harmless the corporation from and against any loss, costs, damages, injury or liability whatsoever which the corporation may suffer or incur resulting from or cause by an act or omission of such owner, his family or any member thereof, any other resident of his unit or any guests, invitees or licencees of such owner or resident to or with respect to the common elements and/or all other units, except for any loss, costs, damages, injury or liability caused by an insured (as defined in any policy or policies of insurance) and insured against by the corporation.

This type of general indemnity clause is often the only indemnity clause found in older condominium corporation declarations.

So what is my point? Simply that case law is growing that supports the position that a condominium cannot force an owner to indemnify it for costs incurred without proper authority to do so and a general indemnity clause in the declaration might not be sufficient. Authority may be contained within the Act (see e.g. sections 92(4), 98 (4), or 134(5)), declaration (e.g. like above), or by-law (e.g. insurance deductible). The condominium’s lawyer can assist in determining if there is proper authority in the Act or documents or if there are other legal principles that may allow the condominium to recover the expense from the owner.

Finally, still to come with the amendments, is the promise of a new process and new forms for charging costs back to unit owners.  Once the amendments are in force only “prescribed additions” may be added to an owner’s common expenses and only once the “prescribed notice” is provided to the owner.