Top 10 condo law cases of 2010

Ontario’s courts and tribunals were busy this past year with condominium matters. We reported on over 35 decisions on our microblog over the course of 2010.   Here are our picks for the top 10 cases of the year.

#10 -- Lexington on the Green Inc. v. Toronto Standard Condominium Corporation No. 1930, 2010 ONCA 751

The Ontario Court of Appeal held that a condo corporation cannot use Condo Act s.112 to terminate an agreement for the corporation to purchase the superintendents’ unit from a developer where the obligation to enter into such an agreement is set out in the declaration.  This is a game-changing decision that can drastically affect a condo corporation’s finances.   According to Bob Aaron, new condo buyers must be extraordinarily careful in reviewing the disclosure materials and draft declaration before signing on the dotted line. Caveat emptor -- Buyer beware.  

#9 -- Essex Condominium Corporation No. 89 v. Glengarda Residences Ltd, 2010 ONCA 167

In another case dealing with disclosure, the Ontario Court of Appeal overturned a trial judge’s ruling that the condos’ developer failed to adequately disclose that the HVAC system serving the shared facilities was leased. The court then set aside the trial judge’s award of damages made under Condo Act 1990, s.52 (replaced by Condo Act 1998, s.133). While the disclosure statement did not reveal the terms of the lease, interest rate or cost of the equipment, it clearly revealed that the equipment was leased and gave what turned out to be a fairly accurate estimate of the cost. This was held to be sufficient disclosure that the HVAC equipment was not owned by the condo corporation. While it was challenged by the developer/appellant, the court upheld the earlier case of Wellington Condominium Corp. No. 61 v. Marilyn Drive Holdings Ltd., 1998 CanLII 2289, which is the leading case on false and misleading statements under the Condo Act.

#8 -- McFlow v. Simcoe Condominium Corporation No. 27, 2010 ONSC 6260

A mortgagee’s bid to remove and replace the court-appointed administrator of a deeply troubled condo corporation was denied. The administrator was appointed a year earlier at the behest of that same mortgagee and while things were moving slowly, there was demonstrable improvement and no evidence of mismanagement as before. The test for removing a court-appointed administrator of a condominium is the same as the test for appointing one under Condo Act, s.131

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Microblog posts to 12/15/2010

Just in case you need a break from holiday shopping, here’s some great reading we’ve collected on our microblog and have categorized here for your ease of browsing.

Follow me on Twitter for live feed.

Court / Tribunal Cases

ONSC: Status Certificate bars condo corp from requiring purchaser to restore interior wall to original condition. http://bit.ly/ggLYHj

ONSC: Unit owner can assess condo’s legal costs of enforcing declaration, by-laws, rules under Condo Act, s.135(4). http://bit.ly/9e98jV

ONCA: Board cannot use Condo Act s.112 to terminate obligation in declaration to buy a supers unit from developer. http://bit.ly/9AsHQJ

ONSC refuses mortgagee’s bid to replace the court-appointed administrator of a deeply troubled condo corporation. http://bit.ly/apO8t9

ONSC rejects developer’s scheme to avoid paying big judgment to Toronto #condo corp after 10 yrs of litigation. http://bit.ly/cTungB http://bit.ly/fuST2N

ONHRT to proceed with human rights case vs Peel Condo 766 w/o further notice unless their board acts fast. Wake up! http://bit.ly/9LpVC0

ABQB: Developer to pay common expenses for its condo units after claims over sweetheart deal and set-off rejected. http://bit.ly/huFi1a

ONCA slashes (from $900K to $50K) condo corp’s judgment vs roofing contractor over 1995 roof repair gone wrong. http://bit.ly/hmmOKg

Legal Commentary

Condo Act s.29: Directors can't be incapable of managing property. When will court assess capacity? http://bit.ly/9qNvLc (@Megan_Connolly)

Condo insurance coverage has some special wrinkles - http://bit.ly/bzVZQV (@GlobeandMail)

Disclosure exposure? Only where condo developers misstate or omit material details in disclosure statements - http://bit.ly/bWTLFL

RT @califcondoguru New at CondoLawGuru: The Perils and Pitfalls of Running a Blog Against the Board http://bit.ly/bxSTeQ

Is privacy a "bogeyman?" Court awards no damages for breach of PIPEDA privacy rights.    http://bit.ly/fChwWp 

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My nominations for 2010 Clawbies

With the end of 2010 in sight, nominations are now being accepted for the annual Canadian Law Blog Awards. The “CLawBies” recognize the work of Canadian legal professionals who share their insight and expertise with the world through a blog.

Details about the awards and the nomination process and previous winners can be found here. You can view all the nominations by searching #Clawbies2010 on Twitter.

For an authoritative list of Canadian law blogs, visit www.lawblogs.ca, where there’s sure to be something for everybody.

Here are my three nominations for the 2010 Clawbies, in no particular order:

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What is a "phantom buyer?"

In a blog post last week entitled “Let’s put an end to phantom buyers,” Toronto Realtor Andrew la Fleur wrote an open letter calling for an end to a “significant problem” he describes as follows:

Phantom Buyers is a term that I have coined for buyers of pre-construction condos who are not really buyers. Usually what happens is this: when a new condo launches of any significance in the city, a large number of Realtors will camp out for several days to be first in line when the VIP broker event takes place. Many of the Realtors who are in the first several spots in the lineup do not have any actual clients who want to buy! These agents will buy units in their own name (usually the cheapest units available), and then they will use the 10-day rescission period to try to find an actual buyer to take the unit(s) they have ‘reserved’ in their name.

He then goes on to explain how those agents try to unload these units and then gives some reasons why the practice should be halted.

There are two problems with the passage above.

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Criminal charges laid over workplace fatalities: A wakeup call

Here's an update from Bob Gardiner on Toronto's most notorious workplace catastrophe in recent history

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Four migrant workers died and another suffered a critical injury when a swing stage scaffold on the 13th floor of a Kipling Avenue apartment building they were on while repairing a balcony collapsed on Christmas Eve, 2009. The swing stage broke into two pieces when a seventh worker attempted to step onto it. Thirty Occupational Health and Safety Act (OHSA) charges were laid against Metron Construction Corporation, 16 charges against a senior manager and eight charges against a supervisor. Swing “N” Scaff Inc., which supplied the work platform faces four charges and its director faces three charges, all under the OHSA.

In addition, Metron Construction Corporation and three company officials have each been charged with criminal negligence causing bodily harm and four counts of criminal negligence causing death, pursuant to s. 217.1 (the Bill C-45 amendments to the Criminal Code).

Eight OHSA orders (including some dealing with swing stages) had been issued to Metron Construction at that job site in the prior two months.

None of the five cases against corporations and individuals subject to such criminal charges have proceeded to trial. Some critics maintain that the excessive focus on criminal blame does not promote proactive strategies to prevent workplace injuries.

By now, every condominium director and manager must be aware of his or her personal liability to take every reasonable measure in the circumstances to protect the health and safety of workers upon a worksite. Condos should take care to disclose any hazardous products or circumstances on site and to negotiate appropriate OHSA clauses in construction contracts. An Occupational Health and Safety Policy is mandatory, as is a Workplace Violence and Harassment Policy, Risk Assessment and Program.