10 Condo Law Highlights of 2020

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2020 has been an eventful year, to say the least. With everything else going on in the world, who has time to stay on top of changes in condominium law? We do! And so to help you out, we’ve prepared a list of 10 changes and decisions in condominium law in 2020 that you won’t want to miss.

  1. The Condominium Authority Tribunal (the “Tribunal”) expanded its authority

Starting on October 1, 2020, the Tribunal’s jurisdiction expanded to include hearing disputes based on provisions in a condominium’s declaration, by-laws, or rules regarding: (a) pets, (b) vehicles, (c) parking/storage, and (d) indemnification/compensation related to the disputes in (a)-(c). This means that disputes in these categories can now be heard using the Tribunal’s streamlined dispute resolution process instead of going to court.

  1. The new Condo Guide for pre-construction and newly-built residential condo purchasers

The Condominium Authority of Ontario released a new Condominium Guide which, starting January 1, 2021, must be delivered to all potential purchasers of pre-construction and newly-built residential condominium units. The Guide will give these purchasers more information on condominium construction and condominium living. For more information on the Condominium Guide, see our previous post here: https://rcllp.ca/condo/?p=499

  1. “Adequate” condo records need not be perfect

Condominiums are required to keep adequate records. The Tribunal confirmed that “adequate” means the records must allow the condominium to fulfill its duties under the Condominium Act, 1998 (the “Act”). To do so, “adequate” records must be accurate but need not be perfect. The level of accuracy required for a record to be “adequate” may vary depending on the record in question. For example, minutes of board meetings are held to a high standard because they look back on facts which should be certain and known, and they serve the important purpose of making the board’s affairs open to the owners. Read the full case here: https://www.canlii.org/en/on/oncat/doc/2020/2020oncat33/2020oncat33.html?resultIndex=1

  1. A condominium cannot impose conditions before releasing records to owners

The Tribunal determined that a condominium cannot impose conditions before providing requested records to an owner. If the records are properly requested by the owner, the condominium must either provide them or refuse to provide them (with a reasonable excuse for the refusal). By imposing conditions, the condominium effectively refused to provide the records. Read the full case here: https://www.canlii.org/en/on/oncat/doc/2020/2020oncat2/2020oncat2.html?resultIndex=1

  1. Comply with Tribunal orders or face cost consequences in court

The Tribunal ordered the condominium to provide records to the owner within 30 days. The condominium did not comply, so the owner took the matter to court. The condominium provided the records to the owner before the court hearing date, yet because the condo had still breached the Tribunal’s order, the court ordered the condominium to pay the owner’s legal fees and disbursements totalling $14,716.91. This serves as a reminder that timelines in Tribunal orders must be complied with, and that Tribunal orders may be enforced in court. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc189/2020onsc189.html?resultIndex=1

  1. Condominium directors not held personally liable for board decisions

A declarant claimed that the condominium’s directors acted oppressively toward the declarant. The court determined that the claims could not succeed against the directors personally. The directors’ decisions in question were decisions relating to day-to-day activities of the condominium without personal gain, and therefore even if the directors made the wrong decisions, this did not justify a personal order against them. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc6445/2020onsc6445.html?resultIndex=1

  1. Significant cost consequences of acting unreasonably  

After succeeding in a case against his condominium, an owner sought a court order for the condominium to cover the costs he had incurred. The court ordered the condominium to pay $83,340 in costs to the owner. The court granted this unusually high costs award because the owner had acted reasonably throughout the matter whereas the condominium was unreasonable and aggressive. Let this serve as a reminder and a warning that unreasonable, aggressive behaviour from a condominium may have significant cost implications. [Note: the decision was unsuccessfully appealed by the condominium, resulting in another $30,000 costs order payable to the owner]. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1190/2020onsc1190.html?resultIndex=1

  1. The Act will be interpreted to protect owners

A third party claimed that a condominium’s action against it was a nullity because the condominium did not properly notify the owners of the action under section 23 of the Act. The court held that it would be inconsistent with the Act, which is designed to protect owners, to render an action a nullity where doing so would actually be detrimental to the owners. The condo commenced this action for the benefit of the owners and therefore it was allowed to proceed despite not providing proper notice to the owners. Read the full case here: https://www.canlii.org/en/on/onca/doc/2020/2020onca63/2020onca63.html?searchUrlHash=AAAAAAAAAAEADVNPIDE5OTgsIGMgMTkAAAABAA4vNjY1LWN1cnJlbnQtMQE&resultIndex=3

  1. Tenant’s excessive noise was a breach of the condominium rules

A tenant in a high-rise condominium repeatedly made excessive noise. The neighbouring tenant repeatedly made noise complaints to property management. The condominium took steps to get the noisy tenant to stop, and when those failed, the condominium filed a court application to enforce compliance with the Act and the condominium’s rules. The condominium succeeded. Not only was the tenant ordered to comply with the Act and the rules, she also had to pay condominium’s costs of $23,250. Read the case and costs decision here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc196/2020onsc196.html and https://www.canlii.org/en/on/onsc/doc/2020/2020onsc3853/2020onsc3853.html?searchUrlHash=AAAAAAAAAAEADVNPIDE5OTgsIGMgMTkAAAABAA4vNjY1LWN1cnJlbnQtMQE&resultIndex=5

  1. Another noise complaint

In the case above, the condominium and the neighbouring tenant worked together to deal with the loud tenant. In contrast, this is a case initiated by an owner against her condominium for failing to take sufficient action to deal with her noisy neighbour. The court determined that the condo could have done more but still acted reasonably, so the claim was dismissed. Noise can be a serious issue in condos, and condos should balance the competing interests of the parties when dealing with these disputes. Read the full case here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1262/2020onsc1262.html?searchUrlHash=AAAAAAAAAAEADVNPIDE5OTgsIGMgMTkAAAABAA4vNjY1LWN1cnJlbnQtMQE&resultIndex=6

Can a Condo Prohibit Talking on a Balcony after 11 pm?

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An owner complains about noise from her neighbour’s balcony late at night and asks the condominium to prohibit the neighbour from talking on the balcony after 11 p.m. The condominium does not have a rule prohibiting residents from talking on their balconies at night, but has a rule prohibiting noise that disturbs the other residents.

With more of us staying at home these days this is bound to be a common problem, especially once the warmer weather comes. What should the condominium do when faced with these sorts of complaints? Should the condominium send demand letters to the neighbour? Start a court application? Should the condominium pass a rule prohibiting these late night discussions on the balconies? Fortunately, a recently reported case gives us some guidance.

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Condo oppressed owner when it failed to address noise

You have probably all read about the oppression remedy in section 135 of the Act. As a recap, section 135 allows an owner, corporation, declarant or mortgagee of a unit to make an application to the courts where the conduct of another owner, corporation, declarant or mortgagee of a unit “is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant.” The purpose of the oppression remedy is to protect legitimate expectations from conduct that is unlawful or, even if lawful, is considered unfair or oppressive. The legitimate expectations must be balanced against competing interests, such as the board’s duty to make decisions on repair or maintenance. The section has been described as “awesome” because it gives the judge the power to make any order he or she deems proper.

Although oppression has been claimed many times since section 135’s inclusion in the Act, very few of the applicants have been successful. Successful cases involve a declarant that refuses to relinquish control of the condominium or where a decision is made that is unfair to a minority group of owners. However, this week a decision was released where an owner was successful against the condominium not because of a decision made or an action taken, but because of the condominium’s inadequate response to the owner’s complaints.

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Noisy Neighbour or Overwhelmed Owner?

The Court has had another opportunity to rule in the never-ending saga of Dyke v. Metropolitan Toronto Condominium Corporation No. 972The owner brought a motion for contempt and other relief. The main question on the contempt motion was whether the condominium and its board of directors or agents disregarded, intentionally violated, or otherwise flouted the previous court order that required the condominium to take reasonable steps to ensure that the owner would have quiet enjoyment of her unit.

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