Ontario Condo Law Blog : Toronto Condominium Lawyer & Attorney : Gardiner Miller Arnold Law Firm : Ontario, Ottawa, Hamilton, Kitchener

Our first microblog post of the year is jam-packed with good stuff, including plenty of pieces on the frenzy that is the Toronto condo market.  While we can't yet tell if 2012 will signal the end of the upward swing, it will definitely be one hell of a ride.

COURT AND TRIBUNAL DECISIONS

ONSC: No discrimination in condo refusing owner's request to alter parking space to accommodate undocumented disability. http://bit.ly/sVLjyW

ONSC gives useful guidance on materials needed to approve reports & accounts of condo administrators and their lawyers. http://bit.ly/sFTQnY

ONSC: Unit owner improperly altered common elements, must sign s.98 agreement; condo's chargeback claim statute-barred. http://bit.ly/vAbfeR

ONSC amends condo declaration to correct as an "error" a sneaky move by the developer to escape zoning restrictions. http://bit.ly/w0Auz6

HRTO denies unit owner's bid to adjourn hearing, allow more time to resolve his complaint vs. condo. http://bit.ly/zlpx0x

HRTO: Hearing to continue despite unit owner’s procedural wrangling after sensing that his case is doomed. http://bit.ly/wSnOVa

HRTO: Disabled unit owner's complaint vs condo dismissed for duplicating a poorly-drafted court claim. http://bit.ly/zRsXbi

ONSC waives med/arb reqmt, rejects selective enforcement argument, orders removal of dogs from condo unit. http://bit.ly/yPyfPO

ONSC: Condo's construction deficiency lawsuit (commenced 3 yrs after performance audit issued) is statute-barred. http://bit.ly/yaBa4p

BCSC orders sale of strata unit after years of antisocial behaviour by owner's son. 1st time in BC. http://bit.ly/vZP5ry

ONSC upholds condo turnover election. Declarant was tardy and failed to deliver turnover docs. http://bit.ly/AExTGf

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As one of our annual traditions, it is time to unveil our picks for the top 10 cases of the year gone by.  2011 brought us a bumper crop of condo-related cases by Ontario courts and tribunals, with almost 50 reported decisions cited in the @ChrisJaglowitz Twitter feed and frequently summarized in our microblog entries.

Here are our selections:

#10 -- York Region Condominium Corporation No. 890 v. RPS Resource Property Services, 2010 ONSC 3371

News of several condo frauds broke in 2011 but there was only one reported court decision on the topic, for a fraud between 2003 and 2005.  The management firm here “borrowed” money from one condo to finance its own operations and those of its other condo clients and then repaid the money before year-end so as to avoid detection by the condo’s auditors.   The plot unravelled when the condo changed managers and the fraudster was short $370,000 at year-end.  The management firm and its principal were liable for breach of contract, breach of trust and conversion and were ordered to repay the $370,000.  The condo’s claim against its bank was dismissed.  We commented on this case and listed a number of takeaway points.

#9 -- York Condominium Corporation No. 26 v. Ramadani, 2011 ONSC 6726

The court granted a compliance order requiring the removal of a dog accused of peeing on a balcony.  Despite the owner’s arguments, the condo was found to have acted reasonably in demanding the dog's removal.    Condominium boards and managers must act reasonably in enforcing condo rules and what is “reasonable” will be decided on a case by case basis, but courts will not substitute their own opinion for that of the board or manager.   Justice Strathy gives a good overview of the current law related to condo rule enforcement and his decision stands for the proposition that unit owners who think that a condominium must prove an owner’s wrongdoing beyond a reasonable doubt before taking steps against them are just fooling themselves and needlessly risking their financial security.  The case also confirms that the court has a broad discretion in fashioning an appropriate remedy which minimally affects the unit owner but which effectively solves the problem.

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As another year-end draws closer, it’s time to submit nominations for the annual Canadian Law Blog Awards.  The “Clawbies” recognize the work of Canadian legal professionals who share their insight and expertise through a blog. 

Details about the awards, the nomination process and previous winners can be found here. You can also keep track of this year’s nominations by searching #Clawbies2011 on Twitter.

Here are my three nominations for the 2011 Clawbies, in no particular order:

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Toronto’s reputation as an international city and condominium capital knows no bounds.

The National Post reports that a Toronto condo unit owned by the son of the late Libyan despot Muammar Gaddafi has apparently gone unnoticed by whoever enforces UN-imposed sanctions in our country.   Ownership of the $1.6 million penthouse at 10 Navy Wharf was held in Gaddafi Junior's own name or some variation thereof.  

The Post’s exposée on the Gaddafi penthouse is here:

Saadi Gaddafi owns a $1.6M penthouse in Toronto

Ottawa asks RCMP to investigate Gaddafi son's Toronto condo

Libya lays claim to Gaddafi's condo

The latest news is that the new Libyan regime is looking to claim the unit as an asset of the state.   If that bid is granted, hopefully the condo board will send the Libyan embassy a copy of the building’s by-laws, rules and elevator booking policy before a problem arises and turns into an international incident.

In possibly-related international news involving Canada and Libya, there is no indication that Cynthia Vanier, the Canadian citizen implicated by Mexican authorities in the plot to help the Gaddafi family flee to Punta Mita, planned to use the Toronto condo as a safe house at any point.  Mexican investigators will no doubt look long and hard at this growing Canadian connection in deciding whether to stage some elaborate “prosecution.”  Vanier's family says she is innocent.

And before leaving the topic of playboy sons of dead tyrants, has someone checked the land registry records for condo units owned by Kim Jong-un? If not, local condo managers might keep watch for any raucous wakes held in their party rooms for the late North Korean strongman Kim Jong-il. Just report your findings to the nearest UN office.

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What a crazy few months it has been. While we haven’t been posting as many blog entries as we’d like, there’s been plenty of action on the Twitter feed. In case you're not receiving the live feed, here’s a compilation of the best stuff from recent weeks.
 

Courts / Tribunals

ONCA: Declarant’s failure to set up cost-sharing regime for mixed-use multi-condo complex not oppressive. Buyer beware. http://bit.ly/v5h9Km

ONSC denies prchsrs bid to legalize common element attic. Real estate lawyer liable for not checking condo floor plans. http://bit.ly/urnj0V

HRTO fines condo $5K for tardy answer to disabled owners' request to store scooter in parking unit; orders bylaw change. http://bit.ly/tb9rbR

SCC: Loser Pays principle doesn't apply to Canadian Human Rights Commission - http://goo.gl/l6iph (H/T @APribetic)

ONCA: Proper functioning of complex, rapidly growing condo industry needs clear agrmts setting out rights, obligations. http://bit.ly/tH715q

ONSC nixes developer’s bid to dismiss condo construction deficiency suit. Tarion decision doesn't bar such lawsuits. http://bit.ly/tUUdIR

ONSC orders unit owner to remove dog accused of peeing on balcony. Condo acted reasonably in demanding dog's removal. http://bit.ly/t5CMVc

ONLRB: Condo employees to vote on union representation after condo doesn't respond to certification application - http://bit.ly/sjaZz9

ONCA: Test for bias by a municipal by-law officer is "reasonable apprehension," but test not to be applied "strictly" - bit.ly/sZ56OO (H/T @ABMunicipal)

ONSC sets referendum rules for owners at dysfunctional condo to decide whether to continue court administration. http://bit.ly/usxjbk

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Each of the 1,000+ attendees at the spectacular ACMO/CCI-T Condominium Conference earlier this month received a complimentary copy of the Conference Edition of our Condo Alert! newsletter in their delegate bag.

In case you missed the conference, you can pick up this special edition newsletter (in pdf) here or by clicking the picture on the right. 

Topics include:

• Tendering
• Hoarding in condo units
• Human rights vs. Health and safety in pools

Our thanks to everyone who attended the educational sessions hosted by GMA lawyers or who stopped to chat with any of us on the conference floor.  We were thrilled to see so many friends (old and new) and we're already looking forward to next year.  

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Condo corporations just can't seem to catch a break these days.  First there was HST.  Then there is proposed federal flag-flying legislation intended to restrict condos' ability to enforce their rules. Now more financial grief.

The latest from Ottawa is that Canada Revenue Agency is suggesting potentially new tax treatment of various income streams that most condos receive and the possible loss of the not-for-profit status of condos receiving such income.  If acted on, this proposal would have major repercussions on condominiums and would require greater financial reporting, additional tax returns and collection/remission of taxes when it might not be necessary or worthwhile.  This is just one more costly headache that will complicate the lives of condo directors.

Luckily, the Canadian Condominium Institute is on the case.  Their national finance committee is looking to gather and compile information to help spread the word and, presumably, to help develop a position on CRA's proposal and advocate on behalf of condos and their owners.

See below for CCI's call for information that was circulated today.   Please submit whatever useful information you can and be sure that your condo joins the local CCI chapter nearest you.

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In the 10 years that the Condominium Act, 1998 has been in force, the prescribed forms needed for the extraordinary events of a condominium’s life and its day to day operations have been reliably set out in the regulations under the Act.

Until now.

Effective September 1, 2011, the two regulations under the Condo Act were significantly amended. The biggest change is that all of the prescribed forms under those regulations are revoked and users are now referred instead to “the form that the Director of Titles specifies” or “the form that the Minister responsible for the administration of that subsection specifies.”

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It's been a busy few weeks, so we haven't posted a compilation of our best tweets lately.  Here's the first batch.

COURT AND TRIBUNAL DECISIONS

ONSC: Former unit owner lacks standing to sue condo for money allegedly spent on director compensation and perks. http://bit.ly/oFowaa

ONSC orders warring condo unit owners to bring their decade-long feud to trial and stop wasting judicial resources. http://bit.ly/qxeJ7O

HRTO won’t reconsider dismissal of owner’s complaint re condo bd remarks about urine smell http://bit.ly/nkWL57 Original: http://bit.ly/qR1lHw

HRTO applies ONCA ruling on condo “single family use” restriction but allows complaint to proceed on reprisal issue only. http://bit.ly/nAYTbx

 GMA IN THE NEWS

Gerry Miller quoted in Toronto Sun story on some of the pitfalls of buying pre-construction #condos. http://fb.me/NJCbuMhe

Gerry Miller quoted in recent issue of Canadian Real Estate mag on screening tenants for rental properties. http://fb.me/xtVaOXPn

GMA is assisting condo unit owners in Cobourg where a receiver was appointed over a developer's properties and assets: http://bit.ly/nukTAy

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