The Condo Authority Tribunal (CAT) Hears New Matters Starting TODAY!

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Starting on October 1, 2020, the Condominium Authority Tribunal (CAT) will begin to hear more than record request disputes. The CAT’s jurisdiction has been expanded to hear most of the common disputes in condominiums. Specifically, the CAT will hear disputes with respect to any of the following provisions of the declaration, by-laws or rules: pets and other animals; vehicles (the definition is very broad, including boats, aircraft, and vehicles powered by muscular power); and parking and storage.

The CAT will also have jurisdiction to hear disputes related to indemnification or compensation claims related to any of the disputes that it now has jurisdiction over. For example, if the condominium brings an application to the CAT because an owner is not complying with a provision in the declaration about pets it will also be able to ask the CAT for a ruling on its right to be indemnified by the owner according to its declaration.

Section 132 of the Condominium Act, 1998, will also be amended on October 1, 2020 to add the following:

Non-application

(4.1) Subsections (1) and (4) do not apply to any matter in dispute for which a person may apply for resolution under section 1.36 to the Condominium Authority Tribunal established under Part I.2 if the Tribunal has been established under that Part. 2020, c. 14, Sched. 1, s. 18 (1).

This means that mediation and arbitration are not prerequisites for an application to the CAT, which makes sense because the CAT has its own mediation process. It will be interesting to see how this change is interpreted. Do we think mediation and arbitration will continue to be used for these disputes despite the CAT’s jurisdiction being expanded to hear them?

While the expansion of the CAT’s jurisdiction is sure to result in the resolution of matters with less costs being expended than with court and arbitration, there is a significant gap in the CAT’s Rules right now. The CAT’s Rules currently indicate that the CAT will not order a party to pay legal fees “unless there are exceptional reasons to do so”. The CAT’s Rules were amended on September 21, 2020 (I assume to address the expansion), but this rule was not changed. The Rule made sense when it was only record request disputes and the CAT was deciding if the condominium had failed to produce a record when it was required to do so, but now that it is going to hear cases where owners (sometimes blatantly) disregard the declaration, by-laws, or rules, it seems grossly unfair to saddle the innocent owners with the costs of the condominium’s enforcement efforts. Will the expansion of the CAT’s jurisdiction actually result in fewer of these nuisance and enforcement issues being resolved because of the possible costs?

Stay tuned. Hopefully we see further changes to the Rules in the days to come to address this imbalance.

CONDO COVID Q & A

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We are still receiving dozens of questions about COVID each week, ranging from how to host meetings to how to reduce potential liabilities. It looks like COVID is here to stay for a while, so we thought that we would provide some answers to the most common questions from our condominium clients.

Mandatory Masks

Q: Are masks mandatory in condominiums?

A: Not in all parts of Ontario. Some municipalities have implemented mask by-laws that require masks in some parts of condominiums, most often the interior common areas like the elevators, hallways, and amenity areas. Some of the by-laws require condominiums to create policies regarding masks and post specific signage on the entrances. Masks are required (at least in part) in most jurisdictions in Ontario, including but not limited to: Toronto, Ottawa, Peel (Mississauga, Brampton, and Caledon), Hamilton, Waterloo Region, Halton Region (Burlington, Oakville, Milton, and Halton Hills), and Windsor. Condominiums can also create new rules or policies requiring masks even if the local municipality does not require it. A rule is generally seen as more enforceable, but a recent case suggests that the courts may enforce policies in light of the unique situation we find ourselves in.

Meetings & Gatherings

Q: Can / should we hold our meeting in person?

A: Likely not. The Ontario government has restricted gatherings to 10 people inside and 25 people outside. Most lawyers appear to be of the opinion that these restrictions apply to condominium meetings. Even if the condominium is small enough to comply with the guidelines, the potential risks of holding a meeting in person make virtual meetings preferable for the foreseeable future, especially in areas where the daily numbers of reported infections are on the rise, like Toronto, Peel and Ottawa.

Q: Can we hold our AGM virtually without a by-law?

A: The temporary amendments to the Act that were made this past summer permit condominiums to hold meetings using electronic or telephonic means even if a by-law has not been passed by the condominium. These amendments are currently set to expire November 21, 2020. There is some speculation that the period could be extended, but there are no guarantees that will happen. The best option is to hold a virtual meeting before November 21, 2020 to pass a by-law permitting the condominium to hold virtual meetings. This way the condominium will be able to hold virtual meetings virtually even if the temporary amendments are not extended. If this is not possible, it may still be better to hold virtual meetings without a by-law than hold meetings in person during the peak of the second wave. Condominiums should get legal advice about possible options for holding meetings during the pandemic, especially since most condominium meeting hosts are booked into 2021.

Q: Can we hold our board meetings via teleconference without a by-law?

A: Yes. The amendments to the Act in 2017 removed the by-law requirement. All condominiums can use teleconference for their board meetings without a by-law so long as the directors consent. (Note: the consent requirement was temporarily removed this past summer, but it is expected to revert back at the same time as the other temporary amendments).

Amenities

Q: Can / should we keep the amenities open? Can / should we keep the amenities closed?

A: This is a tougher one to answer. It depends so much on the amenity area, the residents, the options for limiting exposure, etc. At a minimum, condominiums will need to comply with any restrictions in place at the time, such as limits on gatherings and mask requirements. Condominiums should also consider the value of the amenity and potential risks. Some amenities provide residents an opportunity to exercise, which is good for overall health and wellness. Other amenities provide an opportunity to learn or relieve stress, like a library. While amenities pose additional risks, many risks can be reduced by limiting the number of users at a time and increasing sanitization. Is there anything wrong in keeping amenities closed during the pandemic? No. It really depends on the condominium.

In-Suite Renovations

Q: Can the condominium prohibit owners from completing work in their units?

A: Yes, condominiums can create policies or rules restricting renovation work in the units. There are now multiple cases confirming the right of the condominium to restrict work in the units right now. This doesn’t mean that all work should be prohibited, but it is reasonable for condominiums to have restrictions in place. For example, some condominiums have prohibited non-essential work, but will permit essential work like plumbing repairs. Other condominiums have guidelines for the contractors carrying out the work to minimize the risks to the other residents.

CCI Grand River Chapter’s Virtual Conference Registration is Now Open!

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The Grand River Chapter is hosting its first Virtual Condo Conference & Tradeshow on Friday, November 20th and Saturday, November 21st, 2020. The Friday event is open to property managers only and will include a special event to kick off the conference, time with a few of the exhibitors in a roundtable format, and ends with a legal debate (which I’m thrilled to be participating in). The Saturday is open to all and will include a number of sessions, ending with an Ask the Experts session featuring various professionals.

Registration for attendees, sponsors and exhibitors is now open. I hear sponsorships are going fast, so make sure you purchase your sponsorships early to avoid disappointment!

For more information, including the agenda, check out the Grand River Chapter’s page: https://www.cci-grc.ca/events/2020/11/20/2020-grand-river-virtual-condo-conference

Upcoming Events!

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Every few months I like to post about some upcoming events that may be of interest to condominium owners, directors, managers, and others. Today, I’ll briefly describe a few of the upcoming events in Ontario.

CCI GRC Level 100: Introduction to Condos (September 12, 2020 9 am)

The Grand River Chapter of CCI is holding its Level 100 course on September 12, 2020. This course is designed to provide an introduction to condominiums for owners and new directors. Register now:

https://www.cci-grc.ca/events/2020/09/12/level-100-introduction-to-condos

CCI GHC Enhanced Virtual Director’s Course (Various dates starting September 14 at 7 pm)

The Golden Horseshoe Chapter of CCI is holding its first ever virtual directors course over 8 nights in September and October. I will be kicking it off on night one with a discussion of the governing documents, the role of directors, records, and privacy issues. For more information, or to register, click here:

https://cci-ghc.ca/events/2020/09/14/enhanced-directors-virtual-course-series-part-1-of-8

CCI GHC CondoTalk (September 15 at 12 noon)

The Golden Horseshoe Chapter of CCI is hosting a virtual webinar over lunch to discuss the authority of the board of directors and dealing with difficult owners. Register now:

https://cci-ghc.ca/events/2020/09/15/condotalk-that-owner-did-what

CAI’s First Virtual Condo Conference (September 16th and 17th)

CAI Canada is holding a two-day virtual conference. The conference includes a virtual exhibit hall with numerous opportunities to chat with exhibitors. There are also various sessions planned, including a keynote, a legal panel, COVID panel, and concurrent sessions on maintenance projects, AGMs, telecommunications, ethics, electric vehicles, and chargebacks. Register now:

https://bondexec.eventsair.com/cai2020/reg2020/Site/Register

CCI London’s AGM & Special Presentation (September 22, 2020 at 11:30 am)

CCI London is hosting its AGM using Zoom with a special presentation on condo safety to follow the business portion of the meeting. Register now:

https://www.cci-sw.on.ca/events/2020/09/22/annual-general-meeting-special-presentation

Lastly, remember to save the date for the CCI Grand River Chapter’s first virtual condo conference on November 20 and 21. The Friday is for property managers only and includes a legal panel discussion. The Saturday is open for all members and non-members and will include 3 concurrent sessions, a Q & A session, and exhibitor hall. Registration and sponsorship opportunities will be available starting September 15, 2020! Space is limited.

The CAT is Growing…

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As you may know, Bill 159, Rebuilding Consumer Confidence Act, 2020, received royal assent on July 14, 2020. Ten statutes are affected by Bill 159, including the Condominium Act, 1998, the Condominium Management Services Act, 2015, and legislation related to the construction of condominiums. On August 25, 2020, a new regulation was made under the Condominium Act, 1998 (O.Reg. 465/20) to expand the jurisdiction of the Condominium Authority Tribunal (CAT).

On October 1, 2020, the CAT will start to hear disputes about people, pets and parking (as well as other disputes). The CAT’s jurisdiction is described in O.Reg. 179/17. Effective October 1, 2020, the following will be added to the regulation:

Note: On October 1, 2020, the day subsections 18 (1) and 19 (2) of Schedule 1 to the Rebuilding Consumer Confidence Act, 2020 come into force, subsection 1 (1) of the Regulation is amended by striking out “and” at the end of clause (b), by adding “and” at the end of clause (c) and by adding the following clause: (See: O. Reg. 465/20, s. 1 (1))

(d) subject to subsection (3), a dispute with respect to any of the following provisions of the declaration, by-laws or rules of a corporation:

(i) Provisions that prohibit, restrict or otherwise govern pets or other animals in a unit, the common elements or the assets, if any, of the corporation.

(ii) Provisions that prohibit, restrict or otherwise govern an automobile, motorcycle, van, truck, trailer, bus, mobile home, farm tractor, bicycle, motor-assisted bicycle, motorized snow vehicle, motorboat, rowboat, canoe, kayak, punt, sailboat, raft, aircraft, device used to facilitate the transport of a person with a disability, or any other vehicle drawn, propelled or driven by any kind of power, including muscular power, in a unit, the common elements or the assets, if any, of the corporation.

(iii) Provisions that prohibit, restrict or otherwise govern the parking or storage of items in a unit, an asset, if any, of the corporation, or any part of a unit, an asset or the common elements, that is intended for parking or storage purposes.

(iv) Provisions that govern the indemnification or compensation of the corporation, an owner or a mortgagee regarding a dispute described in this clause.

In short, the CAT will hear disputes about the declaration, by-laws or rules that relate to: 1) pets; 2) parking and vehicles; 3) parking and storage areas; and 4) indemnification rights related to any of the other disputes within the jurisdiction of the CAT.

Of note, the regulation goes on to state that the CAT will not have jurisdiction for any of the areas described above if the dispute is also related to section 117 of the Act (dangerous condition or activity), section 98 (changes made to common elements by owners), or subsection 24.6(3) of O. Reg. 48/01 (electric vehicle charging stations).

It will be interesting to see how the condo industry reacts to the CAT’s expanded jurisdiction.

Update on Previous Post – Fight Fire with Fire: Seeking Court Orders to Amend the Declaration

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Last year we posted about a case where a condominium commenced an application to the Superior Court of Justice for an order amending its declaration. The condominium wanted amendments to its declaration because of a repair and maintenance issue with the fireplaces in the building. A group of owners with fireplaces filed their own application seeking to have the chimney flues deemed part of the common elements, which the condominium was responsible for maintaining and repairing. They also sought an order requiring the condominium to maintain and repair the chimney flues.

To summarize, the court ordered the declaration amended to make the fireplaces exclusive use common elements, but refused to amend the declaration to require the owners to maintain and repair the fireplaces. As a result, the condominium would be responsible for the repair of the fireplaces while the owners and condominium will continue to share the obligation for maintenance of the fireplaces. Our previous post is available here:https://ontcondolaw.com/2019/08/02/fight-fire-with-fire-seeking-court-orders-to-amend-the-declaration/ Continue reading

Caremongering in Condos

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During the pandemic a new word is spreading around the world almost as quickly as the virus itself: Caremongering. Caremongering is a response to the scaremongering that some feel is prevalent these days due to the pandemic. Caremongering groups are popping up all over to help vulnerable groups or people struggling due to the pandemic. Some are aimed at helping seniors and other vulnerable people get necessities, like food and medicine. Some groups are trying to find ways to support small, local businesses stay open during the pandemic. Other groups try to help with the anxiety and depression caused (or exacerbated) by the pandemic’s isolation.

What does this have to do with condos? Condos are small communities and there are many opportunities for caremongering within the community. Before we get into some ideas, let me be clear about a few things. I am not encouraging people to engage in activities that endanger themselves or any other resident. Anyone participating in these activities must take the necessary precautions to avoid the spread of the virus and comply with any orders or recommendations made by public officials. (Sorry for the disclaimer, but remember this is a blog written by lawyers).

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COVID-19 Update: Virtual Meetings, Condo Fees, and Liens

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On March 12, 2020, we wrote a post about the most common questions that we are receiving about COVID-19 in condominiums.  The focus was on the basics: the obligations of condominiums to ensure the property is safe, the ability of the condominium to clean or sanitize common areas without approval of the owners,  reducing or closing common amenities unless essential,  and handling repair and maintenance work. I’m going to do much of the same today, but the focus will be on meetings, condo fees, and liens.

As a reminder, I am not a medical professional. The Public Health Agency of Canada is a great source for tips on preventing the spread and keeping yourself safe. https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html. Public Health Ontario also has great resources, including a helpful self-assessment tool if you are concerned that you may have the virus. https://www.publichealthontario.ca/ 

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Condo Obligations: COVID-19 & Other Communicable Diseases

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Unless you’ve been living under a rock for the last month, you know that COVID-19 is the latest coronavirus  (i.e. SARS, MERS) causing concern around the world. Yesterday, the World Health Organization declared COVID-19 a pandemic due to the “alarming levels of spread and severity and by the alarming levels of inaction.” According to the Public Health Agency of Canada (PHAC) the symptoms include fever, cough, and difficulty breathing. Some people experience more serious symptoms and even death. As of the time of this post, the PHAC has said the risk to Canadians is low. PHAC has indicated that certain groups are at risk of more severe outcomes, including those who are over 65 years old, those with compromised immune systems, and those with underlying medical conditions.

I wasn’t going to post about this topic because it has been covered by so many other condo law blogs already, but I have received dozens of emails and calls about COVID-19 in the last few weeks from worried clients. I am not going to get into the various medical, political or legal issues surrounding COVID-19. I am not going to give medical advice. Instead, I’m going to answer some of the most common questions that I receive about the obligations of condominiums with respect to COVID-19 and other communicable diseases. Continue reading

Upcoming Educational Opportunities

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With possible amendments coming as soon as July 1, 2020, there is no time like the present to attend one (or more) of the many great educational opportunities scheduled for the coming months. If you have the time attending a conference will likely get you more bang for your buck. If not, you can still learn about important condo issues by attending one of the shorter sessions. Here are some of the events that I’m looking forward to the most in the coming months: Continue reading