On April 5, 2019 I attended the ACMO / CCI 1-day Conference in Kitchener. I was asked to speak during the round table discussions and on the legal panel. My topic for the round table discussion was the Condominium Authority Tribunal (CAT). Today I thought that I would share some of the lessons that we have learned so far from the CAT’s first twenty or so decisions. Continue reading
Overall, people seem to be pleased with the CAT. The process is generally much quicker, easier, and cost-effective than Small Claims Court, which was the typical way of resolving record disputes before the CAT. Voluntary mediation was an option to resolve record disputes, but few used the process (despite its many advantages over court).
Many would like to see the CAT’s jurisdiction expanded in the near future to take on other matters, such as proxy and ballot disputes, requisitions, and liens. Unfortunately, the current government has not provided any details about its plans for the CAT. It could expand the jurisdiction, leave it as it is, or eliminate the CAT (the third option seems unlikely). We don’t know at this point. Continue reading
Its already that time of year again! Mark your calendars for the upcoming filing deadline for annual returns, which is only one month away. The filing deadline is March 31st, 2019.
Each year, condominium corporations are required to file an annual return with the Condominium Authority of Ontario (“CAO”). Annual returns must include the following information about the corporation:
- the date of registration;
- the corporation’s legal name;
- the type of corporation;
- the address for service;
- the municipal address, if one is contained in the declaration;
- the total number of units (if not a common element condominium corporation);
- the total number of eligible voting units (i.e. excluding parking/storage units pursuant to section 49(3) of the Act);
- the maximum number of votes that could be counted at a meeting of owners (if a common element condominium corporation);
- the name of each director and date of election or appointment;
- the name and address for service of the management company, if any;
- the start and end date of the fiscal year;
- a statement of whether there has been an inspector appointed pursuant to the Act (and the name and business address of the inspector and the date of appointment, if applicable); and,
- the date of the last annual general meeting.
An annual return may also include an electronic mail address for the corporation if one is available.
For any condominium corporations created on or after January 1, 2019, annual returns must be filed within 90 days of the date the corporation was created. For all other condominium corporations, annual returns must be filed by no later than March 31st, 2019. All returns can be filed online through the CAO’s website.
This year, the CAO will be imposing a $200.00 late filing fee on all overdue returns, effective April 1st, 2019.
So don’t miss this deadline-mark your calendars for the week before March 31st, 2019 to avoid any late filing fees!
The CAT has been busy this month releasing three new decisions. Obviously, the issues relate to record requests. All three cases have some interesting commentary on the circumstances when the CAT will award legal costs and penalties.
The owner filed a claim with the CAT for records. Previously, the condominium obtained an order from the Superior Court of Justice to declare the owner a vexatious litigant. The CAT member found the owner’s claim vexatious and dismissed it. That was not the end of it. The condominium sought over $12,000 for costs of its involvement in the CAT hearing and $22,000 after further submissions were made! Continue reading
The Condominium Authority Tribunal (CAT) has been up and running for a little over a year now. It has released 14 decisions so far, but it has handled hundreds of claims based on the last statistics disclosed at the ACMO/CCI-T Conference in November. Despite being a popular topic at condominium industry events, I am regularly asked about the CAT’s jurisdiction to hear disputes. Continue reading
Earlier this week the Condominium Authority Tribunal (CAT) released its first five decisions. The CAT only has jurisdiction over record disputes at this point in time so all five decisions relate to records. The cases are available on CanLII should you wish to read them in full. Here are the highlights: Continue reading
Most condo returns were due to be filed by March 31, 2018. Has your condo filed yet? What about any notices of change that you may have been required to file, for instance after a change in directors or managers? Have you confirmed with the person responsible for filing the return that he or she has filed it on behalf of the corporation? A quick reminder never hurt. Continue reading
I don’t know about you, but I sometimes get distracted while reading about all of the amendments to the Act (and the related amendments to twelve other pieces of legislation!). I’ll read a clause in the Act that refers to the regulations. I go to the regulations, then back to the Act, to a condo law blog or magazine, and before I know it I’ve spent hours researching something I had no intention of researching when I started my journey. I’ll usually find something that no one seems to be talking about or that I somehow missed the dozens (?) of times I’ve read through the legislation.
In a previous post (available here: https://ontcondolaw.com/2017/12/12/amendments-coming-january-1-2018/) I wrote about the amendments scheduled to come into force on January 1, 2018. The amendments included:
- Adding some warranty coverage for residential conversion condos;
- Requiring condos to file returns to the CAO; and
- Creating a new compliance order process for the registrar of the CAO.
I have received a few questions about the status of these amendments because there has been very little talk about them. I thought that I would provide an update to you all today. Continue reading
Just as I did last year, I’ve put together a list of my favourite condo lessons for 2017. Every condo director, owner, manager, and other person living in or working for condominiums should know these lessons:
10. An owner cannot bring apply for a minor variance from a zoning by-law for common element parking spaces. The board of directors is obligated to manage the common elements, which includes applying for any minor variances that may be required for the common elements. A different result may have occurred if the owner had the exclusive use of all of the common elements the minor variance would apply to, but in this case the owner only had exclusive use of 6 of the 82 parking spaces. Read our post on the case here: https://ontcondolaw.com/2017/10/03/who-can-apply-for-a-minor-variance-for-the-common-elements-condo-or-owner/
9. Only lawyers should register liens. Most lawyers jumped for joy when a decision about a lien was released in May of this year. During the trial a report from the Law Society was produced to show that, in the eyes of the Law Society, a paralegal is not authorized to register liens; only lawyers should register liens. The interesting part is that in most firms the law clerks, not lawyers, register liens. And don’t get me started on lawyers who give their clerks access to their registration keys…yikes. Here is our previous post on the topic: https://ontcondolaw.com/2017/05/29/is-lien-work-really-for-lawyers-only/
8. Condos can charge interest at almost criminal rates. A case this summer confirmed that a condo can charge interest at 30% above the prime rate if a by-law authorizes it. For more information, read the MTCC 1067 v. 1388020 Ontario Corp. case available here: https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4793/2017onsc4793.pdf
7. Green energy initiatives are becoming increasingly popular as hydro costs soar and the government is making it easier for condos to implement some of them. For instance, submetering of the units for electricity consumption does not require the approval of the owners; the board can implement it by resolution of the board alone. Condos cannot prohibit clotheslines, but may have restrictions or conditions for their use. For more information, see our previous post on green energy initiatives: https://ontcondolaw.com/2017/05/10/green-initiatives-in-condos/
6. Similarly, electric vehicles and charging stations are likely to be a hot topic in future years as demand for electric vehicles increases. For more information on some of the legal issues associated with electric vehicles and charging stations see our previous post: https://ontcondolaw.com/2017/04/27/electric-vehicles-in-condos/
5. Degrading and harassing behaviour may be prohibited by section 117 as it may be likely to cause psychological harm. Some owners abuse managers and directors with vulgar language, yelling, and threats. The court has indicated that extreme cases would violate section 117, which prohibits conduct that is likely to cause injury to persons or damage to the property. It would also constitute workplace harassment, which condominiums have a duty to protect their workers from. See our previous post on: https://ontcondolaw.com/2017/04/23/if-you-cant-say-something-nice/
4. Owners need to be careful about sending defamatory emails to other owners and residents. Where an owner sends defamatory emails about directors or the manager, the condominium may obtain an order directing an internet service provider to disclose info to the condo to enable it to identify the person. Defamation is a communication that tends to lower the esteem of the subject in the minds of ordinary members of the public. For more information or to read the case in its entirety, see our previous post: https://ontcondolaw.com/2017/07/26/defamation-in-condos-an-update/
3. The courts will not amend a declaration because an owner feels it is inconsistent with the Act or unfair. The courts have confirmed that their involvement in such matters is limited by the Act to situations where there is an error or inconsistency in documents or where the documents are oppressive. The court will not interfere with validly passed by-laws either. For more information, read our previous post: https://ontcondolaw.com/2017/08/22/summer-case-law-reading/. For a more recent decision by the courts, see the following case: https://www.canlii.org/en/on/onsc/doc/2017/2017onsc6542/2017onsc6542.html
2. Many more condos may make the switch from self-managed to professional managers in 2018 and beyond because of the next lesson on this list. For more information, see our post for self-managed condos: https://ontcondolaw.com/2017/12/18/self-managed-condominiums/
And the top lesson of 2017 (it was also the top for 2015 and 2016) is…
1. The Protecting Condominium Owners Act, 2015. Unless you have been living under a rock for the past year, you know the Condominium Act, 1998, (and a number of other statutes) were amended this year. Some of the key changes in force now include:
- The creation of the Condominium Management Regulatory Authority of Ontario (CMRAO) to oversee condo managers. [www.cmrao.ca].
- The mandatory licensing of condo managers by February 1st, 2018.
- The creation of the Condominium Authority of Ontario (CAO) to oversee condos. [www.condoauthorityontario.ca].
- The creation of the Condominium Authority Tribunal (CAT) to hear condo disputes. The CAT’s jurisdiction is currently limited to record disputes, but the intention is to extend it to other areas in the future.
- Mandatory training for directors and disclosure obligations for candidates for the board of directors.
- A new process for calling owners’ meetings, including new forms for the preliminary notice, notice, and proxies.
- Allowing teleconferencing for board meetings without a by-law.
- Reducing quorum for owners meetings after two unsuccessful attempts to achieve quorum.
- Reducing the approval level required for certain by-laws, like adding disclosure obligations for candidates.
- More communications with owners in the form of three new certificates: periodic information certificate, information certificate update, and new owner information certificate.
- A new record request process where owners, mortgagees or purchasers want to obtain records of the condominium.
There are new forms associated with many of the changes described above. The forms are available here: https://www.ontario.ca/search/land-registration?openNav=forms&sort=desc&field_forms_act_tid=condominium
The deadline for registering condos was recently extended to February 28, 2018. For more information, visit the CAO’s website.
More changes are coming on January 1st, 2018. You can read about those here: https://ontcondolaw.com/2017/12/12/amendments-coming-january-1-2018/
More changes will come into force on February 1st, 2018 and later in 2018 (and maybe early in 2019). Changes still to come include:
- The regulatory part of the licensing of managers, such as a complaints and discipline process.
- Extending warranty coverage through Tarion to residential conversion condominiums in some instances.
- A process for preparing a budget and notifying owners of changes to it.
- A process for charging costs back to owners (i.e. infractions, damage).
Stay tuned! Next year should be full of lessons as more of the amendments are released and we have an opportunity to interpret them.
It has been a busy six weeks as those in the condo industry learned how to use the new forms, conduct owners’ meetings, and apply all of the other amendments that came into force on November 1, 2017. For more information on the amendments in force now, see some of our previous blog posts:
In a couple of short weeks, on January 1, 2018, the second phase of amendments will come into force. The second phase does not have as many changes as the first, but there are, nonetheless, some important changes worth noting. Continue reading