CAO return overdue? File it ASAP!

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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

Posted in CAO

Update on the New Requirements as of January 1, 2018

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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:

  1. Adding some warranty coverage for residential conversion condos;
  2. Requiring condos to file returns to the CAO;  and
  3. 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

My Favourite Condo Lessons of 2017

2017

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.

Amendments coming January 1, 2018

2018It 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:

What is Changing Come November 1, 2017 

The Condo Act Forms are Available!

The NEW PROCESS for Owners’ Meetings

Common Errors with the Amendments

The Condominium Authority Tribunal (CAT)

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

The Condominium Authority Tribunal (CAT)

negotiateThe Condominium Authority Tribunal (CAT) has been up and running for about a month now. The CAO’s website contains a lot of useful information about the CAT, including the mediators selected to facilitate disputes. The CAO’s website also has the CAT rules that were released earlier this month. The rules answer many of the most common questions posed so far, such as “Who can file a claim?”, “How does the process work?”, and “Do condos need lawyers for the CAT?”.

The Process 

The general process for resolving disputes at the CAT is:

  1. Negotiation
  2. Mediation
  3. Decision

Negotiation

The process starts with the aggrieved party filing an online application with the CAT. This person is called the “Applicant”. The Applicant must pay a $25.00 filing fee with the application. The Applicant must be an owner, a mortgagee, a purchaser, or the condominium corporation. The other party, called the “Respondent”, must create an account with the CAO and join the dispute.

The negotiation step allows the parties try to settle the dispute using the CAT’s online system. The parties can communicate and exchange offers to settle through the system. The case will be closed by the CAT if: 1) the parties reach a settlement; or 2) no settlement offer has been made by any of the parties for more than 30 days.

Mediation

The second stage, mediation, is where a neutral third party (the “mediator”) assists the parties in discussing the issues and (hopefully) reaching a settlement. The cost for the mediator is $50.00. The mediator may give directions about the process. If the mediator is also a member of CAT, he or she may make a procedural order that the parties must obey. The mediator, if he or she is a member of CAT, may make a final decision on the dispute if the parties consent.

The mediator decides when the Applicant can move to the final stage. If the applicant has paid the fee for the final stage, the mediator will prepare a brief summary, which will be provided to the member responsible for making a decision. All discussions and documents exchanged during the mediation are private and confidential and may not be made public or used in the final stage unless the parties agree or the CAT allows it.

The CAT will close a case at the mediation stage if: 1) the parties reach a settlement, 2) the parties agree to the CAT making a consent order that ends the case, or 3) the mediator finds that the Applicant has abandoned the application.

Decision

The final step is a decision. If the parties cannot resolve the dispute on their own or with the assistance of a mediator, the Applicant can ask the CAT to make a decision for $125.00. The member hears evidence and arguments and makes a binding decision.

Fortunately, the CAT also has the authority to dismiss an application before a decision is made. Examples include where the application is about a minor issue, the CAT does not have authority to hear the case, the CAT is being used for an improper purpose, the Applicant knew or ought to have known that their documents had false or misleading information, and the Applicant has abandoned the application.

The Rules

The CAT has its own set of rules. Fortunately, the rules are much easier to read than the rules of court or other tribunals. This should make it easier for people without formal legal training to go through the process without a lawyer. Notwithstanding such, the rules permit any party to be represented by an Ontario lawyer or paralegal, or a person who is exempt from the Law Society’s licensing requirements (i.e. a friend helping the person without receiving any fee, licensed condominium manager or a condominium’s director).

The rules describe how the parties are to communicate with each other, share documents, and present evidence. The parties must use the CAT’s online system, unless the CAT allows other methods. The CAT has the authority to order any party to give details, information or documents (called “disclosure”) or summons a witness. The rules also describe how disclosure is to be delivered.

Lastly, the rules indicate that the CAT’s decisions will be available to the public, unless an order has been made to limit access for privacy or public interest reasons. It will be interesting to see how much information is provided to the public.

Costs & Expenses

The rules indicate that the CAT has the authority to order one party to pay to the other party any reasonable expenses or costs related to the CAT, such as the filing fees. However, a party will NOT be ordered to pay another party’s legal fees unless there are exceptional reasons to do so. So, while costs will not be the norm, they will be available where the member believes it is appropriate (i.e. perhaps where one party’s conduct or unreasonable position has caused unnecessary delays or expenses).

Given that the process (at least before the decision stage) is designed to be user-friendly, it is likely that most owners and condominiums will choose not to use a lawyer or paralegal. That seems to be a reasonable course of action; however, given that the CAT’s decision is binding on the parties, the parties might want to use lawyers or paralegals for the decision stage to minimize their risks.

Only time will tell how if the CAT provides what was promised – a quicker, easier, and more cost-effective system for resolving disputes in condominiums. I’m interested in hearing your experiences with CAT. Is it user-friendly? How are you finding the online system?

What is changing come November 1, 2017?

timeWe are only days away now from the next phase of amendments to the Condominium Act, 1998 (and other statutes) from the Protecting Condominium Owners Act, 2015 (Bill 106). The first phase created the Condominium Authority of Ontario (CAO), which is the authority responsible for overseeing the Condominium Act, 1998 and improving condominium living in Ontario. With so many changes described in Bill 106 and talk about phasing in the amendments, the question I am most often asked is “What is changing next?” Continue reading

Resources available now on CAO website

timeWith only a few weeks to go until the scheduled implementation date of the first round of amendments to the Act, I thought that I would spend this week reviewing some of the material available on the websites for the Condominium Authority of Ontario (CAO).

One of the goals of Bill 106 was to ensure owners have more information about condominium living. A large part of this will be handled by the condominium with extra certificates and notices to owners, but the CAO will also play a part by providing resources for owners. Most of the resources will be available online on the CAO’s website. Continue reading