How do you choose your lawyer?

stencil-default-14I spent my Sunday afternoon in a job interview. Yes, you read that right. No, I’m not leaving my firm. We aren’t merging or being bought out. We are open for business as usual on Monday (you can give me a call if you don’t believe me)!

So, what exactly did I do Sunday? Stephanie and I interviewed, along with two other firms, to be the lawyers for a condominium. We met with the subcommittee tasked with making a recommendation to the board and presented a proposal that outlined our services and standard rates. They asked a variety of questions and we talked about ourselves, our firm, and our practice areas. This was actually the second interview. I was unavailable to attend the first one so Stephanie went solo to it.  Continue reading

New (Condo) Rules

It is impossible to draft rules that will work forever. The residents change. The community changes. Technology changes. The legal landscape changes. Everything changes. For these reasons, I usually suggest that boards review their rules regularly to see if any rules need to be changed, removed, or added.  Here are a few issues that you may want to consider next time you revise the rules: Continue reading

Police in Condos

What does the board have to do if the police attend with a warrant? What if they don’t have a warrant? When should the condominium contact the police because of an incident that occurred on the property?

In the past these questions were not easy to answer. While the condominium’s lawyer could provide general advice, there wasn’t really much case law to support the advice. Fortunately, in the past few years there have been cases that give some guidance.

The courts have confirmed that residents have a reasonable expectation of privacy in the common areas of a condominium. Here are a few court of appeal decisions in the area: R. v. White (2015), R. v. Labelle (2016), and R. v. Drakes (2009).   Continue reading

Top Condo Lessons of 2015

As 2016 approaches I find myself reflecting on the most important news, cases, and other events from this past year. Here is my list of the most important condo lessons for 2015:

10. Limitation Periods. The limitation period for enforcing a shared facilities agreement in Ontario appears to be 10 years: Toronto Standard C.C. No. 1487 v. Market Lofts Inc. The limitation period for challenging a special assessment is 2 years and the period begins when the special assessment is levied, not when it is due:  Vasilescu et al. v. Metropolitan Toronto C.C. No. 626.

9.  Noise Issues. An owner does not have a right to absolute quiet in their unit; the other owners are entitled to make ordinary residential use of their units without fear of enforcement efforts by the condominium: Dyke v. Metropolitan Toronto C.C. No. 972. However, it can be oppressive for a condominium to ignore noise complaints, especially when its own experts indicate that there is a problem: Wu v. Peel C.C. No. 245.

8.  Scheduling Meetings. Condominiums ought to be mindful of religious holidays or special events when selecting dates or times for owners’ meetings: Kamal v. Peel C.C. No. 51 (no decision released yet).

7.  Directors’s duties. A director may be found to have breached their duties when he/she publicly opposes a decision made by the board in a way that is not in the best interests of the condominium: Ballingall et al. v. Carleton Condominium Corporation No. 111.

6. Fraud. More property mangers were charged with fraud this year. Condominiums in Hamilton and Burlington were hit hardest. All directors and owners should be diligent when reviewing financial records of the condominium; hire only trustworthy managers; and ask the auditor and bank reps for tips to avoid fraud.

5. Bed bugs are dangerous condition. An owner who fails to address a bed bug infestation (or hoarding) can be found to have breached their duties under the Act and declaration and the owner may be responsible for all of the condominium’s costs: Carleton C.C. No. 25 v. Eagan.

4.  Grandfathering. A clause in a new rule may grandfather existing violations, but it must be reasonable (10 years was not in this case) and consistent with the declaration: Ballingall et al. v. Carleton Condominium Corporation No. 111.

3.  Disabilities must be proven. An owner cannot make a bare assertion of pain or anxiety to substantiate a disability claim and a request for accommodation; the condominium is entitled to request evidence of the disability, a description of the needs of the disability, and an explanation of how the requested accommodation meets those needs: Simcoe C.C. No. 89 v. Dominelli.

2.  Court Costs. The courts continued to express concern for claims by condominiums trying to recover excessive legal costs from owners for enforcement matters. See here and here. But Owners should be careful not to make claims that they can’t substantiate or they may be responsible for the large legal bills of their condominium.

And not surprisingly, the top news event of 2015 is…

1.   The passage of the Protecting Condominium Owners Act, 2015 (Bill 106). In April the Ontario government confirmed that the Condominium Act, 1998 would be amended in 2015. In May the proposed amendments to the Act were revealed. In December the Bill received royal assent. It is not yet in force as the government needs time to create the regulations and organizational structure (i.e. tribunal), but many estimates say it will be in force later in 2016 or early 2017.

Comments from the Courts on Costs

There have been a two interesting decisions on costs released this month.

Ballingall v. Carleton Condominium Corporation No. 111 is the case I posted about previously where a group of owners commenced an application against the condominium and one of the directors because of their failure to enforce the single family residence requirement in the declaration. The owners were successful. The decision on costs was released this month. The owners sought $76,000 in costs from the condominium and director. The condominium and director suggested that success was divided and that no order on costs was appropriate. Aitken J. disagreed with the condominium and director and awarded the owners costs of $50,000.00 ($15,000.00 payable by the director and $35,000.00 by the condominium).  It appears from the decision that the judge was not impressed with the condominium’s refusal to consider several reasonable offers made by the owners. At paragraph 26 Aitken J. stated:

[26] This litigation should be a reminder to all concerned that being stubborn and unwilling to compromise when parties have different, but legitimate, interests and concerns is a costly and unwise endeavour. Looking for common ground, and working hard to find solutions, is always the better way. This award also provides a strong message to condominium owners to take an interest in the management of their corporations and to seek leaders who are able to work constructively and effectively with all owners in seeking reasonable resolutions to difficult issues.

This case is an excellent reminder that reasonableness is important in resolving disputes, especially condominium matters where the parties are all part of the same community and must live together after the matter is resolved.

The second case is interesting for lawyers because it reminds us of the importance of following instructions. Simcoe Condominium Corporation No. 89 v. Dominelli is the case I previously wrote about where the condominium sought an order requiring the owners to remove an overweight dog from their unit. The owners claimed the dog was required because of a disability. The court found they had not established a disability or the need for accommodation. As a result, the condominium was successful. The condominium was awarded almost all of its costs in a previous ruling on costs.

After the previous ruling was released, the judge became aware of a letter from the owners that was submitted prior to the ruling, but was somehow missed. The owners objected to the reply submissions made by the condominium because they exceeded the length directed by the judge. The judge agreed with the owners that “non-compliance by the applicant [condominium] with the page limit had a bearing on the costs expended in preparing the reply submissions and that the quantum of costs awarded to the applicant for its reply submissions should be reduced.” Costs were reduced from $47,000.00 to $45,750.00.

The second case is an excellent reminder that lawyers should follow the judge’s directions so their clients are not penalized for their inability to follow instructions.

Court Costs Bite Owners Claiming Disability to Keep Dog

In late June I wrote about a case where an owner claimed that she needed to keep an overweight dog in her unit because of a disability. The condominium refused her request because, in the board’s opinion, she failed to provide sufficient evidence to substantiate her disability and the need for the dog. The condominium brought an application for an order requiring the owners to remove the dog. The condominium was successful. The court ordered that the owner permanently remove the dog from the unit and invited the parties to make submissions on costs.

The condominium sought costs on a full indemnity scale of about $48,000.00. The condominium argued that it would be unfair to the other innocent unit owners to have to bear any costs of the owners’ refusal to remove the dog. The owners argued that $20,000.00 would be more reasonable since they had limited financial resources. They apparently relied upon their doctor’s advice that they did not have to disclose personal medical information to the condominium. The owners also sought an order that the award made included all “additional costs” for the purposes of section 134(5) of the Act. The condominium argued that the costs sought were not “additional costs”.

On July 13, 2015 the court released its decision on costs. The judge agreed with the condominium. At paragraph 10:

The (owners’) neighbours are blameless in this matter; it is not fair or equitable for other unit owners to have to subsidize the costs of the condominium corporation in pursuing a legal proceeding against a unit owner for their breach of the condominium rules.

The judge awarded the condominium costs of $47,000.00 including taxes and disbursements. If the owners do not pay the condominium within 20 days of the order the condominium may register a lien against the unit. Interest was awarded at the rate set out in the condominium’s by-laws.

As for section 134(5) of the Act, the judge stated that it would “not be appropriate to deal with additional costs under s.134(5) of the Act” and declined to make the order sought by the owners limiting costs under that section to those awarded.

This case should serve as an important lesson to all owners: don’t make claims you can’t substantiate or it could cost you. It also serves as an excellent example of how a condominium should approach requests for accommodation: be reasonable, but remember there is nothing wrong in asking for evidence to substantiate the disability and the need for accommodation.

Ontario Budget 2015 confirms Condo Act reforms coming

The 2015 Budget was tabled Thursday April 23rd, 2015. Unfortunately, very little on the proposed reforms to the Act were mentioned, except the following:

    Increasing Protection in the Condominium Market

Building on the announcement in the 2014 Budget, the Province is moving forward with       reforms to the Condominium Act, 1998, including the establishment of mandatory               qualifications for condominium managers. The Province will also be creating two                 administrative authorities to license condominium managers and improve education and     dispute resolution for condominium corporation boards and owners.

The waiting game continues.