New to the Condominium Way of Life: Part 4

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Our fourth Q-and-A style blog post has arrived. This time we discuss how you can navigate having a noisy neighbour, a neighbour that has complained about you being too noisy, how you can build a case for a complaint, and what you can do if you disagree with a ruling of a condominium.

Noise is one of the most common types of nuisances in condominiums, especially in residential condominiums constructed with shared walls, like apartments or townhouses. While owners have a right to use and enjoy their units, there is no absolute right to silence. Living in close quarters means that owners must expect some level of noise from their neighbours. The residents are entitled to make ordinary household noises without fear of complaints against them or enforcement steps being taken by their condominiums. The courts have suggested that in most cases ordinarily household noises will include the sound of people walking in the unit above, children playing, doors and cabinets closing, chairs moving away from tables, and vacuuming.   

Q. What can I do if another unit owner is being noisy and disturbing me?

A. Ask yourself the following questions: Is the source considered an ordinary household noise? Is the sound at a reasonable level? Is the noise occuring during the day?

If the answer to these questions is yes, there is likely not much the condominium can do to assist you as the other residents have the right to use their units. You could purchase noise reducing earplugs or a white noise machine to cover the noises. You could also speak with your neighbour to see if you can work out a solution, such as the owner agreeing not to vacuum at a certain time of day when you might be sleeping.

If the noise is unreasonably loud or very frequent, or occurring late at night, and your neighbour is not willing to reduce the noise or work with you to find a solution, you can reach out to the condominium for assistance. The condominium will likely ask for details about the noise, such as the date and time of occurrences and a description of the type of noise (i.e. loud music, banging or hammering). The condominium may also ask you to provide a recording from your phone or other device if the noise is the type that is easily recorded. This information will help the condominium investigate your complaint and address it with the other resident. In some cases, the condominium may have an acoustical engineer or other professional investigate the noise and provide a report of the sources.

You might have success calling by-law officers to report the noise. Keep in mind that the by-law officers will only ticket the other resident if they can hear noise that violates the municipal by-law at the time of their attendance. Often by the time the officers arrive the noise has subsided. Also, in some parts of the province by-law officers will not attend condominiums in response to noise complaints.

Q. What can I do if another unit owner has complained about me?

A. Consider if you are making too much noise in your unit and take steps to reduce the noise. Often installing area rugs or flooring with high quality underpad can work for a variety of noise issues. You can purchase inexpensive felt pads to reduce noise from banging cabinets, furniture moving across the floor, and closing doors. Keep noise from electronics, like televisions and computers, to a reasonable level or use a headset. Ask your kids to stop screaming or not jump off furniture, especially early in the morning when some people might still be sleeping. If you have people over for dinner or a party, remind them of the rules about noise and their obligation to keep the noise down. Whatever you do, do not ignore a letter from the condominium alleging any sort of rule violation, including excessive noise, as it could have significant consequences.

If you believe the owner complaining about you is unreasonable or there are special circumstances causing the noise, such as a renovation project, you can try speaking with them to see if there are certain noises or times of day that they find most irritating and work with them to find a solution. You can keep your own record of times when you are home and your activities to refute the complaints if you feel the other owner is making them up or exaggerating about the noise.  If you feel the noise is caused by another unit or from the common elements, such as the elevator, garbage chute, or HVAC equipment, ask the condominium to investigate to rule out deficiencies with these items.   

Q. What can I do if the condo has ruled against me in a complaint but I think the decision is unreasonable?

A. If you feel the condominium is not addressing noise from another unit that disturbs you, you could gather your own evidence to make a case for the condominium. For example, have witnesses give you statements of what they hear and feel when they visit your unit. You could hire an expert to provide a report of their findings. You could record the noise with your phone or other device. If the condominium still refuses to address the noise, you should speak with a lawyer about your options for requiring the other owners and the condominium to comply with the rules regarding noise.

If the condominium takes steps to enforce against you and you feel you are not causing excessive noise, you should speak with a lawyer about your options for defending yourself. For example, you might want to request mediation to try to resolve the matter without court as mediation tends to be much quicker and less costly than court.

Special thanks to Zach Powell, summer student at Robson Carpenter LLP, for asking the questions owners want to know and preparing this post!

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.

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.

Electricity Providers’ Requirement for a Security Deposit

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The Ontario Energy Board Distribution System Code (the “OEB Code”) provides that all local electricity distributors’ Conditions of Service must fall within the framework of the OEB Code when requiring electricity security deposits from their customers.

Given the above, when a condominium is presented with the requirement from an electricity distributor (ex. local municipal hydro corporation) to pay a security deposit, the Conditions of Service of the electricity distributor should be reviewed to ensure the request complies with the OEB Code.

In short, the OEB Code does not always require new residential condominiums (as residential customers) to provide security deposits to electricity distributors.

Section 2.4.10 of the OEB Code provides residential customers are deemed to have a “good payment history” (the absence of which allows for requiring a security deposit), unless one of the enumerated default events in section 2.4.9 has occurred.  Being a new customer is not one of the listed events.

More specifically, a condominium should be aware of some of the following provisions under the OEB Code:

1. Residential Condominiums are residential customers: under section 2.4.30A of the OEB Code condominiums with units predominantly used for residential purposes are “deemed a residential customer for the purposes of section 2.4.9” which provides the basis for the electricity distributor’s requirement of a security deposit.

2. Requirement for Security Deposit: section 2.4.9 of the OEB states in part (see below) that a security deposit can be required by the electricity distributor unless a residential customer has a good payment history of one (1) year subject to restrictions regarding calculating the good payment history period and reasons requiring the security deposit form the customer:

2.4.9 A distributor may require a security deposit from a customer who is not billed by a competitive retailer under retailer-consolidated billing unless the customer has a good payment history of 1 year in the case of a residential customer, 5 years in the case of a non-residential customer in a <50 kW demand rate class or 7 years in the case of a non-residential customer in any other rate class. The time period that makes up the good payment history must be the most recent period of time and some of the time period must have occurred in the previous 24 months. A distributor shall provide a customer with the specific reasons for requiring a security deposit from the customer.

*Note: recent amendments to section 2.4.9 that came into effect March 1, 2020, provide that before requiring a security deposit from a residential customer that has not been serviced by the electricity distributor in the previous twenty-four (24) months, the customer shall have the option to enroll in an equal payment plan, pre-authorized payment plan, or both.  If one of such enrollment options is chosen no security deposit can be required unless there is default by the customer.

2.4.9A Before requiring a security deposit under section 2.4.9 from a residential customer who has not been served by the distributor in the previous 24 months, a distributor shall offer the customer the option of enrolling in an equal monthly payment plan in accordance with the Standard Supply System Code, a preauthorized payment plan, or both, and where the customer elects to enroll, no security deposit shall be required

3. Deemed Good Payment History: section 2.4.10 (see below) provides that in the absence of certain default events a customer shall be deemed to have a good payment history for the purposes of requiring a security deposit:

2.4.10 For the purposes of section 2.4.9, a customer is deemed to have a good payment history unless, during the relevant time period set out in section 2.4.9, the customer has received more than one disconnection notice from the distributor, more than one cheque given to the distributor by the customer has been returned for insufficient funds, more than one pre-authorized payment to the distributor has been returned for insufficient funds, a disconnect / collect trip has occurred or the distributor had to apply a security deposit in accordance with section 2.4.26A and required the customer to repay the security deposit in accordance with section 2.4.26B. If any of the preceding events occur due to an error by the distributor, the customer’s good payment history shall not be affected.

A plain reading of this section suggests condominiums should push back against electricity distributors requiring payment of a security deposit on the grounds they are already deemed to have a good payment history and have not committed any of the events of default listed in 2.4.10. This argument could be resisted by the fact the new customer is deemed to have a good payment history but 2.4.10 does not say the good payment history is deemed to be for the time period required by 2.4.9. However, 2.4.10 does note that the deeming of a good payment history is “for the purposes of 2.49”.

As noted, not having a payment history is not one of the listed items that contradicts the deeming of a good payment history.

This provision can also be especially important when electricity distributors try and require developers or condominium corporations to pay a security deposit for each subsequent phase after the initial registration of a standard condominium plan.

It is possible the above position will be considered overruled by the amendment to the OEB set out in 2.4.9A and a new condominium may be forced to elect to enrol in one of the payment methods set out in that subsection.

If this argument is resisted because of there being no payment history, the condominium should choose to enroll in an equal payment plan, pre-authorized payment plan, or both in light of the provisions in 2.4.9 that provide if one of such enrollment options is chosen no security deposit can be required.

4. Amount of Security Deposit: Effective March 1, 2020 section 2.4.12 which sets out the formula for the maximum security deposit an electricity distributor can require reads:

The maximum amount of a security deposit which a distributor may require a customer to pay shall be calculated by multiplying the distributor’s billing cycle factor and the customer’s estimated bill (which shall be based on the customer’s average monthly load with the distributor during the most recent 12 consecutive months within the past two years). Where relevant usage information is not available for the customer for 12 consecutive months within the past two years or where the distributor does not have systems capable of making the above calculation, the customer’s average monthly load shall be based on a reasonable estimate made by the distributor.

Also, important to note is section 2.4.16 which establishes the billing cycle factor used in the formula:

2.4.16 For the purposes of sections 2.4.12, the billing cycle factor is 2.5 if the customer is billed monthly, 1.75 if the customer is billed bi-monthly and 1.5 if the customer is billed quarterly.

5. Payment of Security Deposit: If the condominium for some reason agrees to pay the electricity distributor’s security deposit, the condominium should be aware that sections 2.4.20 and 2.4.20A permit condominiums to pay the deposit in equal installments over at least 6 months rather than as a single lump-sum payment.

6. Review/Return of Security Deposit: sections 2.4.22-23 of the OEB Code provide that a customer’s security deposit must be reviewed by the electricity distributor at least once in a calendar year to confirm if the customer should be returned the deposit as it is now exempt in accordance with section 2.4.9.  If payment of the deposit was made via equal installments the distributor’s review shall occur on the anniversary of the calendar year in which the customer made their first payment.

Note: Section 2.4.28 contains provisions for returning the deposit to a 3rd party in situations where a 3rd party (ex. developer) paid the security deposit on behalf of a customer (ex. condominium)

The electricity distributor also should have Conditions of Service that may provide further arguments against a requirement for a security deposit depending on how the Conditions of Service are written. If the local Conditions of Service contradict the OEB Code, the OEB Code overrides the local Conditions of Service according to Sections 1.4 and 1.5 of the OEB Code.

It is therefore important for condominiums and developers to confirm if their electricity distributor’s Conditions of Service comply with the OEB Code’s standards when requiring a security deposit.

If an electricity distributor continues to insist on a security deposit from a residential condominium or proposed residential condominium, the Consumer Complaint Response Process set out in Section 10 of the Code should be implemented. This process sets out some relatively short time periods for the electricity distributor to respond to the complaint.

Condominiums must also ensure no default in payment occurs to their electricity distributor as default in payments opens the condominium up to having to pay a security deposit.

Kitec Claims: Deadline to Submit is Almost Here

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We previously highlighted the fast approaching Kitec claim deadline this past spring. Here is a final 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 10 days awayJanuary 9, 2020.

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

See our previous post https://ontcondolaw.com/2019/04/23/kitec-dont-forget-the-deadline-to-submit-a-claim/ for a few key reminders about completing the claim form and providing supporting documentation to file a claim.

Top Condo Lessons of 2019

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As 2020 approaches I find myself reflecting on the most important news, cases, and events from this past year. There were several notable decisions released this year and a few that I’m sure we would all like to forget! The hardest part of these lists is selecting only ten to speak about. Here is my list of the top ten condo lessons for 2019:

Counting Isn’t as Easy as 1, 2, 3

The Court confirmed the 10 day notice requirement for liens can be calculated by excluding the date the notice of lien is mailed and including the date of registration. Sending the notice of lien on January 21 and registering the lien on January 31 was acceptable. (Note: this is the minimum; more time is generally better). See CCC 476 v. Wong (2019). Continue reading

Coming January 1, 2020…

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We are still early into the Fall season, but there have already been a few announcements about changes coming January 1, 2020. More changes are expected to be announced, but here’s what we know so far.

Condo Authority of Ontario (CAO) 

The CAO announced that it will again have a 25% reduction in its fee for the 2020-2021 year. The fee will be $0.75/month per voting unit. The annual fee was initially set at $1/month per voting unit, but the costs to operate the CAO have been less than initially projected (in part because the CAT’s jurisdiction has not been expanded as originally anticipated under the previous government).

(Note: the Government of Ontario has proposed making the CAO responsible for 19 of the prescribed forms under the Act and its regulations, including information certificates, preliminary and notice of meeting, proxy, and forms related to record requests. These changes could take effect as early as January 1, 2020. Stay tuned on this one as it hasn’t been confirmed yet!).

Court Changes

The Government of Ontario announced some key changes to the court system in Ontario. The changes are aimed at increasing access to justice, reducing legal costs, and making the process quicker. On January 1, 2020 we will see the following changes:

  1. Increase in the monetary limit for Small Claims Court from $25,000 to $35,000.
  2. Increase in the monetary limit for Simplified Procedure actions in the Superior Court of Justice from $100,000 to $200,000.
  3. Other changes designed to reduce costs and speed up the process.

For those with claims with limitation periods expiring after January 1, 2020, you should discuss the pros and cons of commencing your actions now or waiting.

Get to Know the Team: Daniel Brockenshire

team

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