Most people are familiar with the declaration, by-laws, and rules of condominiums, but many are less familiar with policies in condominiums. This is not surprising as the only references to “policies” in the Condominium Act, 1998 (the “Condo Act”), are for insurance policies. In recent years, condominiums are more regularly creating policies to address a variety of topics. This post is the first of two which will describe some policies that condominiums may be required to create and others that may be recommended.
WHAT IS A POLICY?
Generally, a policy is a set of guidelines that support future decisions and define expectations. For condominiums, a policy may be created, amended, or repealed by resolution of the board of directors. It does not require approval of the owners. That said, the policy will only be enforceable if the board of directors had authority to make a decision on the subject-matter of the policy without approval of the owners. The policy must also be reasonable and consistent with the declaration, by-laws, and rules of the condominium.
REQUIRED POLICIES, PROGRAMS AND PLANS
Condominiums may be required to create policies in a variety of situations. The most common situation is where a condominium has an employee (or more broadly a “worker” in some cases).
Reserve Fund Investments
The Condo Act requires condominiums to create an investment plan before investing any part of the condominium’s reserve fund accounts. The plan must be based on the anticipated cash requirements of the reserve fund as described in the most recent reserve fund study. It is wise to create the plan with the help of an investment professional.
Workplace Violence and Harassment Policies and Programs
Every employer in Ontario must prepare and review, at least annually, policies on workplace violence and harassment according to the Occupational Health and Safety Act (“OHSA”). The policies are required regardless of the size of the workplace or the number of workers, but there are additional requirements where there are six or more regular workers. The employer must also maintain a program to implement the workplace violence and harassment policies.
It is important to note that the definitions of “employer”, “worker”, and “workplace” are very broad. For example, “worker” includes both employees and contractors. A worker could include a cleaner, landscaper, superintendent, or property manager depending on the circumstances. As such, it is likely that most, if not all, condominiums in Ontario would be required to have these policies and programs in place.
A sample workplace violence policy and program has been produced as part of the Ontario Ministry of Labour’s Workplace Violence and Harassment: Understanding the Law guide which can be found here: https://files.ontario.ca/wpvh_guide_english.pdf It is important to keep in mind that the workplace violence and harassment policies and programs must be modified to reflect the risks of the workplace after the employer completes its risk assessment.
Make sure you check back for part 2 of this series for more required policies and some recommended ones.
Earlier in the year we wrote about the different voting thresholds to pass condominium by-laws and described the process generally. We did not go over the extensive list of permitted subject matters or other requirements for a by-law to be valid. A recent case highlights the importance of ensuring the by-law complies with all requirements of the Condominium Act, 1998, so today we will explore the other requirements of the Act.
In a recent case the court was asked to rule on the validity of a by-law that contained conditions and restrictions on the rental of the units. The court found the condominium’s by-law was valid as far as its restrictions on: controlling who may operate a rental program, charging a rental management and amenity fee, collecting refundable damage deposits, and imposing limits on the number of people who may occupy a rental unit. The court found that the restrictions on advertising and the requirement that the owners use a rental manager approved by the Corporation were unreasonable. The court ordered the unreasonable parts be struck from the by-law.
Most people are aware that by-laws must be approved by the board of directors and then the owners at a meeting. The by-law must be approved by either a majority of the voting units or a majority at the meeting, depending on the type of by-law. We explained this in greater detail in our January 2021 post. Using the process to pass a by-law does not guarantee that the by-law will be valid.
The Act contains a few other requirements for a by-law to be valid. The by-law must be consistent with the Act and the Declaration. Put another way, a condominium cannot create a by-law that attempts to change an obligation or right in its Declaration unless the Act or Declaration specifically permits by-laws to modify the obligation. This is often where a by-law would extend an obligation (i.e. increase the situations where owners may be responsible for insurance deductibles) as opposed to change or remove the obligation.
The by-law must also be reasonable. This requirement is harder to explain. The Act does not define “reasonable”, but reported cases offer some guidance as to what may or may not be reasonable in a condominium by-law. Does it feel like the condominium is trying to regulate an activity that it shouldn’t be? Is the by-law offensive? Is it targeting a specific owner? If the answer is yes, the by-law might be unreasonable (and possibly oppressive). If there is any doubt about the reasonableness of a proposed by-law the condominium should speak to its lawyer.
The last requirement to keep in mind is that the subject matter of the by-law must be authorized by the Act. Section 56 contains an extensive list of subjects, such as qualifications and disqualifications for directors, procedures for owners meetings, and standard unit definitions. There are other parts of the Act or regulations that authorize other types of by-laws, such as sections 21 (easements and leases of common elements) and 57 (occupancy standards). It is important that a proposed by-law fit within one of the permitted subjects or the by-law will be invalid.
Today’s topic was suggested by one of our readers, John, who is often faced with questions and comments from owners about snow removal and salting. Some owners feel their condominium’s contractor puts down too much salt, which gets tracked into their homes and ruins the floors. On the other hand, some owners feel the contractor puts down too little, which creates a risk of a slip and fall. Like many issues in condominiums, the board and management are often stuck in the middle. What’s a condominium to do?
Why Remove Snow & Ice?
Apart from concern about neighbours being injured in a slip and fall, most declarations require the condominium to maintain the common elements, which includes an obligation to remove snow and ice from walkways, driveways, and parking areas. This is sometimes true even where the driveways or walkways form part of the exclusive use common elements or even part of the units.
In addition,the condominium is considered the occupier of the common elements for the purposes of the Occupier’s Liability Act. This means the condominium is responsible for ensuring that people entering upon the property and their personal property are reasonably safe while on the property. This duty extends to conditions on the property, such as snow and ice, as well as activities being carried out on the property. If the condominium fails to properly maintain the property in a reasonably safe condition it could be responsible for damages or injuries that a person incurs on the property.
It is important to briefly discuss a recent legislative amendment related to slip and fall incidents. On January 29, 2021, the Occupier’s Liability Act was amended to prohibit legal action for damages for personal injury caused by snow or ice unless written notice of the incident is provided within 60 days of the incident. The notice must contain information about the incident, including the date, time, and location. It must be personally served or sent via registered mail to the occupier or the contractor responsible for snow removal on the property. A judge may find that the failure to give notice within 60 days is not a bar to an action if there is a reasonable excuse (i.e. severe injuries resulting in hospitalization) or the person dies as a result of the incident.
When a condominium receives a notice it should ensure that it promptly shares a copy with the snow removal contractor and any other occupier of the property, such as other condominiums in a shared facilities situation and the management company. The condominium must notify their insurer. The condominium should also take steps immediately to preserve any evidence, such as surveillance footage of the incident, as this evidence may show the condominium took reasonable steps to prevent the incident.
How Can You Address Concerns About Salt and Ice?
If a condominium is receiving complaints about too much or too little salt the board or manager should talk to its snow removal contractor. The contractor might be able to explain why they put down the amount of salt they do or modify the amount they put down in certain areas of the property. For example, in some condominiums there are parts of the property that accumulate more ice than other parts for a variety of reasons, such as exposure to the elements, drainage patterns, or the location of eaves. The contractor may be able to reduce salt in other areas where the risk of slip and fall accidents is lower.
Sometimes condominiums ask the contractor to put down a reasonable amount of salt to prevent slip and falls while providing extra salt to those owners who want to put down more on their walkways or driveways. This can be a good way to address situations where a condominium is faced with some owners complaining about too little salt and others complaining about too much salt.
The condominium could also ask the contractor about alternatives to salt, such as sand or de-icing products. Some of these products may cost more, but they may also do less damage to landscaping or other items so they might be preferred by owners.
Sometimes owners remove the salt on their walkways or driveways or ask the condominium to stop placing salt on their walkways or driveways. Some owners even offer to sign legal documents releasing the condominium and contractor from any claims if they slip or fall as a result of the contractor not placing salt in the area. I would caution condominiums about signing these documents without first speaking to their lawyers and insurers as these documents may not act as a bar to legal action by the owner, which leaves the condominium exposed to potential claims.
I see the snow is falling again this morning, so this was a very timely topic. Thanks for the suggestion John!
With no further extensions to the deadlines for holding AGMs, it looks like many condominiums will need to hold their 2020-2021 AGMs using electronic means as in-person meetings continue to be prohibited in most parts of Ontario. There were temporary amendments made to the Condominium Act, 1998 (the “Act”) that permit condominiums to hold their meetings using telephonic or electronic means without a by-law. These temporary amendments might become permanent, but the Ontario government has not yet confirmed its intentions. As of right now, the temporary amendments are set to end on May 31, 2021 and condominiums will need to pass new by-laws to continue hosting their meetings using telephonic or electronic means.
Given that hosting owners’ meetings using telephonic or electronic means (“virtual meetings”) is relatively new to most condo managers, it is not surprising that I have been asked to do a few presentations on virtual meetings over the last year. This post will share a few tips and tricks from those presentations to make your virtual meeting a success.
CALLING A MEETING
Like with in-person meetings, preparation is key to a successful virtual meeting. The first decision to make is how you will hold the meeting. Will you use teleconference or videoconference? I have had only a few clients go with a teleconference, but I have heard that it worked well for smaller condominiums with fewer attendees.
If you plan to hold it with video, will you use a meeting services provider or do it on your own? The Act permits the use of Zoom or Teams (or other similar programs), but it can be more challenging to host larger meetings without the assistance of a meeting services provider to assist with voting or moderating the meeting. The main reason people choose not to use a meeting services provider is the cost. The cost actually varies significantly between the providers and based on the features selected, so I would encourage you to do some research and find the one that is the best for your condominium. Most of the meeting services providers have different options ranging from the collection of e-proxies only to a full services package that includes some or all of the following: e-proxies, e-voting, advance voting, and a moderator for the meeting to help people struggling with the technology.
The process for calling a virtual meeting is the same as for in-person meetings with a few minor tweaks to the preliminary notice of meeting and notice of meeting packages. A cover letter to the preliminary package explaining the technology to be used at the meeting helps owners research the technology in advance of the meeting, which can reduce anxiety about the technology. It also gives you an opportunity to highlight any special deadlines that the condominium may not normally have with in-person meetings, such as a deadline for the delivery of paper proxies (more on this below).
Lastly, one of the biggest changes to the process for calling a meeting is that the temporary amendments to the Act permit condominiums to use electronic means to deliver notices to owners and mortgagees, even if they have not consented to such means. “Electronic means” includes a variety of options, but is most often via email. If you do not have an email address for an owner you should find an alternate means of delivery, such as via regular mail to their address for service.
HOLDING A MEETING
There are a few similarities between in-person meetings and virtual meetings. For instance, the order of business in the agenda is normally the same with minutes of the last AGM being one of the first items, followed by the auditor’s presentation, and then elections near the end. In some situations it might be appropriate to move an item up in the agenda to give attendees more time to cast their votes.
Another similarity is quorum. Quorum for most meetings is still 25% of the owners who are eligible to vote. In addition to those in person or represented by proxy, owners who use telephones or electronic means or advance voting also count towards quorum for a virtual meeting.
One of the challenges with virtual meetings is confirming the identities of those in attendance at the meeting. The name shown may not be the person’s proper name. For example, often the name will be the brand and model of the phone used to connect to the meeting. This could be anyone. If you use a meeting service provider they will normally take care of confirming identities for you. If you go it alone, you’ll need to find a way to do it yourself. There are different ways to ensure that only those entitled to attend are able to log into the meeting, for example, you can use the registration option in Zoom. If you have a small number of units you could do a roll call and rename the attendees with their unit number or name.
One of the benefits of virtual meetings is the ease of control over attendees, especially when attendees do not have the ability to unmute themselves. Using the Q&A or chat features of the virtual meeting can make it easier to stick to the agenda. If you choose to permit owners to speak at the meeting, I recommend that you set clear ground rules like you would with in-person meetings.
It is important to explain the voting options early so owners understand their options. Ideally, the preliminary notice of meeting would explain the technology that will be used to capture votes (i.e. proxies, e-voting during the meeting, advance voting, show of hands). Explaining the options allows owners to explore the options and choose the one that they are most comfortable with. It also ensures that people are not surprised to find out at the meeting that they cannot vote in the manner they planned to use.
Voting by paper proxy can be challenging with a virtual meeting for a variety of reasons. For one, it is harder to ensure that proxy holders are counted toward the proper number of votes if using the raise hand or polling features within Zoom as they would only be counted as one vote. This can be avoided by using e-votes for all motions, but this takes extra time as people have to go to their email and vote each time. Another challenge with paper proxies is that it is harder to review paper proxies during a virtual meeting with the scrutineers. A breakout room can be used, but it takes a lot longer to review paper proxies using a screen sharing feature than it would in person (especially if each proxy is a separate file). Setting a deadline for paper proxies to be received allows the manager to review the proxies, organize them, and create a summary of the results. This could be reviewed with scrutineers in advance of the meeting to speed up the process during the meeting, but it will need to be reviewed to ensure those attending in person to vote or using e-voting are not counted twice with any paper proxies they submitted.
While it can seem daunting to host your first virtual meeting, I have heard mostly positive remarks about the experience from clients after the meeting. Some still prefer in-person and will use virtual meetings only as long as it is necessary, but some have indicated that they may continue to use virtual meetings for some of their meetings in the future. Some have even stated that they plan to investigate hybrid options with in-person meetings with some attending via electronic means or casting e-votes.
One of our first posts of the year was on the requirements for making, amending, or repealing by-laws. In response to that post we were asked about the requirements for making, amending, or repealing rules. This lead to our third post of the year. If you haven’t read both posts make sure you go back and read them. Today, we will briefly describe the options for changing a condominium’s declaration or description (sometimes called the “survey” or “plans”).
The Condominium Act, 1998 (the “Act”) describes three methods for amending a declaration and/or description: 1) with consent; 2) with an order of the Director of Titles; and 3) with a court order. It is important to note that the Act allows a condominium to update its address for service or mailing address without amending the declaration. For more information, see section 108 of the Act.
The most popular method of amending the declaration and/or description is to do so with the consent of the owners. If the amendment includes a change to the proportions of ownership or contributions to the common expenses, the exclusive use common elements, or maintenance and repair obligations, it requires the consent of the owners of 90% of the units. All other changes require 80% of the units. Ask your lawyer for a definition of “units” for the purposes of a declaration or description amendment.
I should note that this method may also require the consent of the declarant if the declarant has not transferred all of the units (except telecommunications units) and less than three years has elapsed from the later of the registration of the condominium and the date the declarant first entered into an agreement of purchase and sale for a unit.
Once the board of directors are satisfied with the proposed amendment they must call a meeting of owners to present the proposed amendment to the owners. The normal process for calling a meeting is used, including the use of the prescribed forms and the normal timeline. The notice of meeting must include a copy of the proposed amendment. The board must collect the written consent of the owners, but the consent does not need to be collected at the meeting. The amendment must be registered in the land registry office before it becomes effective.
With an Order from the Director of Titles
The Act also permits condominiums to amend the declaration or description without the approval of the owners in certain circumstances. Section 110 of the Act states that a condominium (or another interested person) may apply to the Director of Titles appointed under the Land Titles Act for an order amending the declaration or description to “correct an error or inconsistency that is apparent on the face of the declaration or descriptions, as the case may be.” The amendment is not effective until a certified copy of the order is registered on title to the units.
Our office has seen this process used where there was a minor typo found in the declaration, such as where it referred to the wrong instrument number for a document or it referred to levels that did not exist. The Director of Titles has refused requests where the error or inconsistency appeared to be obvious to us, such as where there was an inconsistency between the unit boundaries in the declaration and those in the description.
With a Court Order
The Act also permits condominiums (or an owner) to seek an order from the Superior Court of Justice to amend the declaration or description without the approval of the owners. Notice of the application must be given to the condominium and every owner and mortgagee whose name appears in the condominium’s records. The judge must be satisfied that the “amendment is necessary or desirable to correct an error or inconsistency that appears in the declaration or description or that arises out of the carrying out of the intent and purpose of the declaration or description.” The amendment is not effective until a certified copy of the order is registered on title to the units.
The courts have also ordered declarations and descriptions (and other documents) to be amended in other circumstances. For instance, if the declaration is oppressive, unfairly disregards an owner’s interests, or unfairly prejudices them, it is possible that a court would order the condominium to amend the declaration if an application is brought by the owner under section 135 of the Act (oppression remedy). This is very rare. See an old post for further information: https://ontcondolaw.com/2014/06/06/owner-successfully-applies-to-court-for-amendment-to-declaration/
Last week we described the process for creating new condo by-laws. One of our astute readers asked: Is the process for passing rules the same as passing by-laws? Today, we tackle that question.
Before we dive into the process for passing rules, we should quickly answer another common question. What can rules be used for? Rules cover a variety of topics in condominiums, including parking on the property, garbage disposal, moving procedure (i.e. booking the elevator), use of the common elements and amenities (i.e. pools, greenspace), and noise, odours, and other nuisances.
Prior to explaining the procedure to be used to create a new rule, it is important to discuss the appropriate content of condo rules. Each of the declaration, by-laws, and rules has subject-matters that are exclusive to that particular document. For rules, the board must make the rules to promote one of two purposes permitted by the Act:
promote the safety, security or welfare of the owners and of the property and assets (if any) of the condominium; or
prevent unreasonable interference with the use and enjoyment of the units, common elements, or the assets (if any), of the condominium.
The rules must also be about “the use of the units, the common elements or the assets, if any, of the corporation”. In addition, rules must be reasonable and consistent with the Condominium Act, 1998, and the declaration and by-laws. If the rule is inconsistent with the Act, the Act prevails and the rule is deemed amended accordingly.
The process for making, amending, or repealing (removing) condo rules is the same. The process is described in section 58 of the Condominium Act, 1998. To summarize, the process is as follows:
Board Approval: Board, by resolution at a properly constituted board meeting, creates the new rule (or amendment or repeal of an existing rule). The board can create the rule on its own or with the help of the manager or lawyer.
Notice to Owners: The condominium must send notice to the owners about the rule. There is no prescribed form for the notice, but it must contain: a) a copy of the proposed rule; b) the proposed effective date of the rule (a date that is at least 30 days after notice); c) a statement explaining the owners have the right to requisition a meeting and the rule becomes effective as described in subsections 58(7) and (8) of the Act; and d) copies of sections 46 and 58 of the Act.
No Requisition Received: If the board does not receive a requisition within 30 days of the notice, the rule becomes effective the day after the 30th day (or a later date if the Board has proposed an effective date beyond the 31st day).
Requisition Received: if the board receives a requisition within 30 days of the notice, the board must call a meeting of owners to permit them to vote on the proposed rule. The ordinary process for calling a meeting is used, except the preliminary notice is sent 15 days before the notice of meeting instead of 20 days like with the AGM. This still requires the board to move quickly when a requisition is received as the preliminary notice must be sent out within 5 days of receiving the requisition to ensure proper notice is provided and the meeting is held within 35 days as required by the Act (note: many condominiums are not able to meet the 35 days, so it is common for requisition meetings to be a few days late). The rule becomes effective if there is no quorum at the first attempt to hold the meeting or, if there is quorum, the owners do not vote against the rule at the meeting.
Rules proposed by the declarant before the registration of the declaration must be reasonable and consistent with the Act and the proposed declaration and by-laws. The proposed rules are effective until replaced or confirmed by later rules.
Where a rule has “substantially the same purpose or effect” as a rule that the owners previously amended or repealed within the last 2 years the Board must call a meeting of owners to vote on the proposed rule. The owners do not need to requisition a meeting to vote on a rule that is substantially similar to one they already amended or repealed.
Lastly, and perhaps the most controversial, subsection 58(5) of the Act states that “the owners may amend or repeal a rule at a meeting of owners duly called for that purpose.” Some interpret this as suggesting the owners have the right to requisition a meeting to amend or repeal an existing rule (not create a new rule) without the board first approving the change as the board would in most cases where they are proposing a change to the rules. I support this interpretation. It provides the owners with the right to requisition a meeting to change a rule that no longer fits the community.
Have any other suggestions for future blog posts? Feel free to share by emailing us, or commenting on our social media posts.
With many condominiums passing by-laws to allow for virtual meetings and electronic voting, one of the most frequently asked questions right now is: how many owners need to approve the by-law? This became a common question after the Condominium Act, 1998, was amended in 2017 to create two different voting thresholds for by-laws. Prior to the amendments there was only one answer: a majority of the units in the corporation. (*Excluding units used for parking, storage, or services/facilities/mechanical installations unless all units are used for these purposes). There are now two answers: a majority of the units in the corporation or a majority of units represented at the meeting.
What is the level of support required to pass a by-law?
Most by-laws still require a majority of the units in the corporation to approve them at an owners’ meeting. This list includes:
Directors: the number, qualifications/disqualifications, elections, removal, term of office, and the regulation of board meetings
Borrowing: to authorize the condominium borrowing money to carry out its duties
Standard Unit: to define the standard unit for each class of unit for the purposes of determining obligations for insurance and repair after damage of improvements
Deductible: to shift responsibility for deductibles under the condominium’s insurance policies to owners in certain circumstances
Property: to lease a part of the common elements, grant or transfer an easement or licence through the common elements, or release an easement that is part of the common elements.
The by-laws that may be approved by the lower threshold, majority of the units represented at the meeting, are by-laws about requirements that were created by the amendments in 2017, such as:
Candidate Disclosures: Adding candidate disclosure requirements for elections to the board or requiring them to be in writing or provided within a certain time period
Information Certificates: Adding required content or increasing the frequency of them
Meetings: Adding material for meetings and notices of meetings, permitting virtual meetings and electronic or telephonic voting, and permitting a portion of the proxy or ballot identifying the unit or owner to be disclosed in record requests
Records: defining additional core records and other records the condominium is required to maintain, and setting retention periods for the additional records.
The lists above are not exhaustive.
Process for Making, Amending or Repealing By-laws
The process for having owners approve by-laws is the same for all by-laws, except for the voting thresholds described above. The board of directors must, by resolution, approve the by-law at a board meeting. The condominium must then call a meeting of owners to present the by-law to the owners. The preliminary notice of meeting must indicate that proposed changes to the by-laws will be presented at the meeting and the notice of meeting must include a copy of the proposed by-law. At the meeting, voting is typically conducted by recorded vote (ballot) and proxies casting votes. If approved by the required number of units, the by-law certificate must be signed by the board and sent to the lawyer for registration. The by-law is not effective until registered on title. Once registered, the by-law must be included in status certificates.
You might have noticed that Annie Bailey’s post (10 Condo Law Highlights of 2020) had a notable omission: COVID-19. Given the overwhelming number of legal changes, reported cases, and news about COVID-19 in condominiums, we decided to dedicate an entire year-in-review post to COVID-19 in 2020. Here is our list of the top ten legislative changes, reported cases, and resources that your condominium need to be aware of heading into 2021 while we continue to deal with COVID-19 and the pandemic.
Levels, Colours and Lockdown – The Spring started with the entire country in lockdown to prevent the spread of COVID-19. As the numbers started to fall, each Province adopted its own strategy for addressing the pandemic. In Ontario, we had levels or stages at one point, which was later changed to five zones (each with a different colour). Each zone has its own restrictions, such as on the number of people attending gatherings, and requirements, such as additional cleaning and contact tracing.
Virtual Meetings – one of the many legislative changes during the pandemic was to permit condominiums to hold their owners’ meetings using technology that allows owners to vote using electronic or telephonic means (“virtual meetings”). These meetings were permitted before the pandemic, but condominiums had to pass by-laws to use them. The Ontario government has authorized, via temporary amendment to the Act, all condominiums in Ontario to host virtual owners’ meetings until May 31, 2021 without a by-law. This could be further extended if Covid-19 continues to be prevalent in the Spring of 2021. Need tips about chairing virtual meetings? Head over to the Lash Condo’s blog for some great tips.
Court Enforces Covid-19 Policies & Rules – there have been a few reported cases of condominiums successfully enforcing Covid-19 policies and rules where a resident was engaging in conduct that potentially put the other residents at risk. In one case an owner was prohibited from allowing contractors into their units to complete painting and other minor work. In another case an owner was prohibited from allowing contractors to repair a unit that was damaged as it was not an emergency or essential (the owner had another bathroom). See the post by our friends at DHA: https://dhacondolaw.ca/condo-law-news/court-upholds-corporations-covid-19-policy/
Online Dispute Resolution – it only took a global pandemic, but the courts and tribunals in Ontario have moved into the 21st century! Many matters can be heard via teleconference or videoconference instead of requiring everyone to attend in person. They have expanded the use of electronic filing and service. All of this should reduce costs to the parties and hopefully speed up the process. From a condominium perspective, many mediations and arbitrations can now be held online. There was a great article on online dispute resolution by Colm Brannigan and Marc Bhalla for the CCI-GRC’s blog: https://www.cci-grc.ca/blogs/view/stay-home-stay-safe-and-mediation-online
Webinars – there have been so many great webinars this year to help people keep up with all of the legislative changes related to the pandemic. Many of the CCI chapters have held regular webinars. CCI-GRC even held its first virtual conference in November! While many enjoy the social aspects of the in-person seminars and conferences, the virtual options have many advantages over the in-person ones. I predict a use of both in-person and virtual options once it is safe to have large gatherings again, but for now there are plenty of webinars available for you to keep up.
And that is a wrap for us on pandemic material for the year. Like many of you, we are tired of talking about Covid-19. It is our reality right now, but it does not need to be the only thing we talk about. We will get through this pandemic one way or another.
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.
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.
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
“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
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
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
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
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