As you may have noticed, I have not blogged about COVID-19 much these past few months. This was an intentional decision based on a number of factors. The situation was evolving so quickly that it seemed like my advice was changing almost daily at times depending on the recent statistics, public health recommendations, emergency orders, and the law. I did not want to confuse or mislead people who might be reading the blog weeks or months later. Also, some people reported feeling overwhelmed by the number of articles, blog posts, and webinars on the topic. I felt it was unnecessary to add to the stress when so many others were doing such a great job publishing information about the subject. I am still frequently asked about COVID-19 resources for condominiums and owners, so today I am going to provide a list of some of the available resources. Continue reading
Photo by john paul tyrone fernandez on Pexels.com
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
It was a pleasure for the Robson Carpenter team to see and chat with many familiar faces at the conference this past weekend. The conference was full of fantastic exhibitors and informative sessions on a broad spectrum of issues, challenges, and anticipated changes in the condominium industry. There were so many great speakers, panels, and topics in the various sessions that I often wished I could be in two places at once to listen in on concurrent sessions!
In no particular order, here are some of my favourite moments and takeaways from the conference:
Discussion of Security Issues
I particularly enjoyed the Q&A style insights, advice, and perspectives from the panel in “Palace or Prison: Security Through Environmental Design” with security topics ranging from lighting, mirrors, cameras, and signage, to communication systems for communities. Of note, the panel’s emphasis on unique situations and issues for different types of condominium communities from massive high rises to townhouse complexes was very engaging.
It was interesting, if unsurprising, to hear numerous speakers and people I interacted with on the tradeshow floor express ongoing frustration with the length and complexity of the new prescribed form. Clearly this form continues to be a source of frustration for managers, boards, and owners. On the bright side, representatives from the Condominium Authority of Ontario (“CAO”) did highlight they have created an information guide as well annotated sample proxies available on their website (link here https://www.condoauthorityontario.ca/en-US/resources/proxy-overview/ ) to assist owners in understanding how to fill out these forms. Hopefully more refinements to the form are planned by the government in the future.
CAO and CMRAO Statistics
Interesting numbers on the 1st Year of the CAO and Condominium Management Regulatory Authority of Ontario (“CMRAO”) – representatives of the CAO and CMRAO shared some fascinating statistics about their respective 1st anniversary of operation:
- The CAO’s database estimates there are over 11,000 condominium corporations in Ontario. Of those, 85 % have registered with the CAO and 84% have provided the required returns (transitional and annual)
- Over 2,800 licensees registered with the CMRAO
- Over 300 condominium management companies with 3 companies employing over 100 property managers each.
The Condominium Authority Tribunal (“CAT”) which currently has jurisdiction over records disputes under section 55 of the Condominium Act, 1998 (the “Act”) already has 127 active cases. We previously posted about some of the first decisions released by CAT here (link).
There were some interesting questions and discussions in one session regarding condominium corporations that have passed by-laws increasing the quorum threshold from the 25% required by the Act for the 1st and 2nd attempts to call an owners meeting. My opinion, and one shared by a few other lawyers I have spoken to, is that the most recent amendments of the Act in subsection 50(1.2) have voided those higher quorums (ex. 33 1/3 %) thresholds in by-laws. Quorum can be no more than 25%. If a corporation wants to increase the threshold from 15% on the 3rd and subsequent attempts to call an owners meeting, the quorum increase is restricted to remaining at 25% by 50(1.2) of the Act.
On a final note, the exhibitors with booths that had a live-magician, hockey memorabilia collection, and handwriting analyst were captivating and very popular draws for many.
If you weren’t able to attend this year’s conference, don’t forget the Golden Horseshoe chapter of CCI has its annual conference coming up in the spring of 2019. We will have a booth and both Craig and Michelle will be speaking. Definitely something to look forward to attending as we slip into the winter season!
Today I thought I would write about something a little different – it’s my wish list for the next round of amendments and changes to the regulations. Here they are in no specific order:
- Amalgamation for condominiums that are not standard. The amendments to the Act that have come into force make me believe this might be on the horizon, but the regulations still require the condominiums to be standard ones. I understand the rationale for not combining different types of condominiums, but why restrict the ability only to standard condominiums? Six common elements condominiums should be able to amalgamate without much difficulty.
- Public database for managers. Many professional organizations, like the Law Society of Ontario, have a public database that people can search for information on the licensees. It would be nice if the CMRAO had the same for managers. This would make it easier for people to search for information, such as their licences, about their managers without calling the CMRAO.
- Director training in formats other than online. This one is already possible as the authority has been delegated to the CAO. There are condominiums losing knowledgeable and experienced directors because they do not want to (or cannot) complete the training online. Why not allow a organization like CCI to offer training? The CAO could require accreditation of all programs just like the Law Society of Ontario does for the program to count toward our a lawyer’s continuing education requirement. ACMO still plays a role for managers. CCI has been a pivotal organization in educating directors for decades across the country. Why not allow them to continue to do what they do?
- More time to call a requisition meeting. The amendments to the Act make it very difficult for a condominium that receives a requisition to hold the meeting within the 35 day period required by the Act. While there is a provision that allows the condominium to send the preliminary notice out to owners 15 days before the notice of meeting, instead of 20 days, this still isn’t enough time in many cases. Currently, the Board only has a few days to review the requisition with its lawyer, find a location for the meeting, confirm the availability of everyone who needs to be there, and have the manager to prepare and distribute the preliminary notice to all of the owners. This is a transitional period issue as the timeline will change once further amendments are in place, but the transition period is taking much longer than expected so it would be nice if this amendment was prioritized for the next round.
These are just a few of the issues I’d like to see prioritized for the next round of amendments. Only time will tell when the next phase of amendments will come into force as there has been no press release from the new government with respect to its plans for the condominium industry. I’d love to hear from you. What do you want to see in the next round?
Just as I did last year, I’ve put together a list of my favourite condo lessons for 2017. Every condo director, owner, manager, and other person living in or working for condominiums should know these lessons:
10. An owner cannot bring apply for a minor variance from a zoning by-law for common element parking spaces. The board of directors is obligated to manage the common elements, which includes applying for any minor variances that may be required for the common elements. A different result may have occurred if the owner had the exclusive use of all of the common elements the minor variance would apply to, but in this case the owner only had exclusive use of 6 of the 82 parking spaces. Read our post on the case here: https://ontcondolaw.com/2017/10/03/who-can-apply-for-a-minor-variance-for-the-common-elements-condo-or-owner/
9. Only lawyers should register liens. Most lawyers jumped for joy when a decision about a lien was released in May of this year. During the trial a report from the Law Society was produced to show that, in the eyes of the Law Society, a paralegal is not authorized to register liens; only lawyers should register liens. The interesting part is that in most firms the law clerks, not lawyers, register liens. And don’t get me started on lawyers who give their clerks access to their registration keys…yikes. Here is our previous post on the topic: https://ontcondolaw.com/2017/05/29/is-lien-work-really-for-lawyers-only/
8. Condos can charge interest at almost criminal rates. A case this summer confirmed that a condo can charge interest at 30% above the prime rate if a by-law authorizes it. For more information, read the MTCC 1067 v. 1388020 Ontario Corp. case available here: https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4793/2017onsc4793.pdf
7. Green energy initiatives are becoming increasingly popular as hydro costs soar and the government is making it easier for condos to implement some of them. For instance, submetering of the units for electricity consumption does not require the approval of the owners; the board can implement it by resolution of the board alone. Condos cannot prohibit clotheslines, but may have restrictions or conditions for their use. For more information, see our previous post on green energy initiatives: https://ontcondolaw.com/2017/05/10/green-initiatives-in-condos/
6. Similarly, electric vehicles and charging stations are likely to be a hot topic in future years as demand for electric vehicles increases. For more information on some of the legal issues associated with electric vehicles and charging stations see our previous post: https://ontcondolaw.com/2017/04/27/electric-vehicles-in-condos/
5. Degrading and harassing behaviour may be prohibited by section 117 as it may be likely to cause psychological harm. Some owners abuse managers and directors with vulgar language, yelling, and threats. The court has indicated that extreme cases would violate section 117, which prohibits conduct that is likely to cause injury to persons or damage to the property. It would also constitute workplace harassment, which condominiums have a duty to protect their workers from. See our previous post on: https://ontcondolaw.com/2017/04/23/if-you-cant-say-something-nice/
4. Owners need to be careful about sending defamatory emails to other owners and residents. Where an owner sends defamatory emails about directors or the manager, the condominium may obtain an order directing an internet service provider to disclose info to the condo to enable it to identify the person. Defamation is a communication that tends to lower the esteem of the subject in the minds of ordinary members of the public. For more information or to read the case in its entirety, see our previous post: https://ontcondolaw.com/2017/07/26/defamation-in-condos-an-update/
3. The courts will not amend a declaration because an owner feels it is inconsistent with the Act or unfair. The courts have confirmed that their involvement in such matters is limited by the Act to situations where there is an error or inconsistency in documents or where the documents are oppressive. The court will not interfere with validly passed by-laws either. For more information, read our previous post: https://ontcondolaw.com/2017/08/22/summer-case-law-reading/. For a more recent decision by the courts, see the following case: https://www.canlii.org/en/on/onsc/doc/2017/2017onsc6542/2017onsc6542.html
2. Many more condos may make the switch from self-managed to professional managers in 2018 and beyond because of the next lesson on this list. For more information, see our post for self-managed condos: https://ontcondolaw.com/2017/12/18/self-managed-condominiums/
And the top lesson of 2017 (it was also the top for 2015 and 2016) is…
1. The Protecting Condominium Owners Act, 2015. Unless you have been living under a rock for the past year, you know the Condominium Act, 1998, (and a number of other statutes) were amended this year. Some of the key changes in force now include:
- The creation of the Condominium Management Regulatory Authority of Ontario (CMRAO) to oversee condo managers. [www.cmrao.ca].
- The mandatory licensing of condo managers by February 1st, 2018.
- The creation of the Condominium Authority of Ontario (CAO) to oversee condos. [www.condoauthorityontario.ca].
- The creation of the Condominium Authority Tribunal (CAT) to hear condo disputes. The CAT’s jurisdiction is currently limited to record disputes, but the intention is to extend it to other areas in the future.
- Mandatory training for directors and disclosure obligations for candidates for the board of directors.
- A new process for calling owners’ meetings, including new forms for the preliminary notice, notice, and proxies.
- Allowing teleconferencing for board meetings without a by-law.
- Reducing quorum for owners meetings after two unsuccessful attempts to achieve quorum.
- Reducing the approval level required for certain by-laws, like adding disclosure obligations for candidates.
- More communications with owners in the form of three new certificates: periodic information certificate, information certificate update, and new owner information certificate.
- A new record request process where owners, mortgagees or purchasers want to obtain records of the condominium.
There are new forms associated with many of the changes described above. The forms are available here: https://www.ontario.ca/search/land-registration?openNav=forms&sort=desc&field_forms_act_tid=condominium
The deadline for registering condos was recently extended to February 28, 2018. For more information, visit the CAO’s website.
More changes are coming on January 1st, 2018. You can read about those here: https://ontcondolaw.com/2017/12/12/amendments-coming-january-1-2018/
More changes will come into force on February 1st, 2018 and later in 2018 (and maybe early in 2019). Changes still to come include:
- The regulatory part of the licensing of managers, such as a complaints and discipline process.
- Extending warranty coverage through Tarion to residential conversion condominiums in some instances.
- A process for preparing a budget and notifying owners of changes to it.
- A process for charging costs back to owners (i.e. infractions, damage).
Stay tuned! Next year should be full of lessons as more of the amendments are released and we have an opportunity to interpret them.
The Condominium Authority Tribunal (CAT) has been up and running for about a month now. The CAO’s website contains a lot of useful information about the CAT, including the mediators selected to facilitate disputes. The CAO’s website also has the CAT rules that were released earlier this month. The rules answer many of the most common questions posed so far, such as “Who can file a claim?”, “How does the process work?”, and “Do condos need lawyers for the CAT?”.
The general process for resolving disputes at the CAT is:
The process starts with the aggrieved party filing an online application with the CAT. This person is called the “Applicant”. The Applicant must pay a $25.00 filing fee with the application. The Applicant must be an owner, a mortgagee, a purchaser, or the condominium corporation. The other party, called the “Respondent”, must create an account with the CAO and join the dispute.
The negotiation step allows the parties try to settle the dispute using the CAT’s online system. The parties can communicate and exchange offers to settle through the system. The case will be closed by the CAT if: 1) the parties reach a settlement; or 2) no settlement offer has been made by any of the parties for more than 30 days.
The second stage, mediation, is where a neutral third party (the “mediator”) assists the parties in discussing the issues and (hopefully) reaching a settlement. The cost for the mediator is $50.00. The mediator may give directions about the process. If the mediator is also a member of CAT, he or she may make a procedural order that the parties must obey. The mediator, if he or she is a member of CAT, may make a final decision on the dispute if the parties consent.
The mediator decides when the Applicant can move to the final stage. If the applicant has paid the fee for the final stage, the mediator will prepare a brief summary, which will be provided to the member responsible for making a decision. All discussions and documents exchanged during the mediation are private and confidential and may not be made public or used in the final stage unless the parties agree or the CAT allows it.
The CAT will close a case at the mediation stage if: 1) the parties reach a settlement, 2) the parties agree to the CAT making a consent order that ends the case, or 3) the mediator finds that the Applicant has abandoned the application.
The final step is a decision. If the parties cannot resolve the dispute on their own or with the assistance of a mediator, the Applicant can ask the CAT to make a decision for $125.00. The member hears evidence and arguments and makes a binding decision.
Fortunately, the CAT also has the authority to dismiss an application before a decision is made. Examples include where the application is about a minor issue, the CAT does not have authority to hear the case, the CAT is being used for an improper purpose, the Applicant knew or ought to have known that their documents had false or misleading information, and the Applicant has abandoned the application.
The CAT has its own set of rules. Fortunately, the rules are much easier to read than the rules of court or other tribunals. This should make it easier for people without formal legal training to go through the process without a lawyer. Notwithstanding such, the rules permit any party to be represented by an Ontario lawyer or paralegal, or a person who is exempt from the Law Society’s licensing requirements (i.e. a friend helping the person without receiving any fee, licensed condominium manager or a condominium’s director).
The rules describe how the parties are to communicate with each other, share documents, and present evidence. The parties must use the CAT’s online system, unless the CAT allows other methods. The CAT has the authority to order any party to give details, information or documents (called “disclosure”) or summons a witness. The rules also describe how disclosure is to be delivered.
Lastly, the rules indicate that the CAT’s decisions will be available to the public, unless an order has been made to limit access for privacy or public interest reasons. It will be interesting to see how much information is provided to the public.
Costs & Expenses
The rules indicate that the CAT has the authority to order one party to pay to the other party any reasonable expenses or costs related to the CAT, such as the filing fees. However, a party will NOT be ordered to pay another party’s legal fees unless there are exceptional reasons to do so. So, while costs will not be the norm, they will be available where the member believes it is appropriate (i.e. perhaps where one party’s conduct or unreasonable position has caused unnecessary delays or expenses).
Given that the process (at least before the decision stage) is designed to be user-friendly, it is likely that most owners and condominiums will choose not to use a lawyer or paralegal. That seems to be a reasonable course of action; however, given that the CAT’s decision is binding on the parties, the parties might want to use lawyers or paralegals for the decision stage to minimize their risks.
Only time will tell how if the CAT provides what was promised – a quicker, easier, and more cost-effective system for resolving disputes in condominiums. I’m interested in hearing your experiences with CAT. Is it user-friendly? How are you finding the online system?
Are you ready? In less than three months the first set of amendments to the Condominium Act, 1998 comes into force. Arguably the biggest change is the creation of the Condominium Authority of Ontario (CAO). I like to think of the CAO as the “Condo Police”.
You’ve probably heard by now that the dates have changed for implementing changes to the Condominium Act, 1998 (“Condo Act”), and various other pieces of legislation under the Protecting Condominium Owners Act, 2015 (also known as “Bill 106”). The start date was planned to be July 1, 2017 for some of the changes, but the Ontario government recently announced that the date has been pushed into the fall. Not surprisingly, the administrative authorities will be designated first with the implementation of most of the other changes coming in afterward. The new timeline is described below in more detail.
The following post was researched and written by Daniel Brockenshire, a law student at Sutherland Kelly LLP. Thanks, Daniel!
The third draft regulation, which was released on February 24, 2017, is aimed at regulatory changes to the Condominium Act, 1998 (the Act) and the Condominium Management Services Act (the CMSA). More specifically, the regulation proposes the scope of the Condominium Authority Tribunal and the designation of two new administrative authorities, one for the Act the other for the CMSA. Comments are due by April 10, 2017. Continue reading