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

ONTARIO CLEAN ENERGY BENEFIT (OCEB) - 2011-07-27 14:32:26 

In 2010 the Ontario Government announced the Ontario Clean Energy Benefit (OCEB). As prescribed in the Ontario Clean Energy Benefit Act, 2010 (OCEBA), an electricity account relating to a property as defined in the Condominium Act, 1998, is eligible to receive a rebate of 10% on their bill. This rebate applies to condominium properties regardless of their level of electricity consumption or demand.

ACMO and CCI have been in discussions with the Ministry of Energy and the Electricity Distributors Association (EDA) since it came to light that many condominiums have not been receiving the OCEB. Many of the electricity distributors across Ontario processed the 10% rebate to all customers who were part of the Regulated Price Plan (RPP) available to all residential customers.

Condominium corporations that have opted not to participate in the RPP and are instead paying spot pricing or are enrolled in a retailer contract may not be receiving the OCEB rebate of 10% for which they are entitled.

The rebate is retroactive to January 1, 2011.

Please be advised that all condominium corporations that have not been receiving the OCEB should contact their local electricity utility and request a self-declaration form. By submitting this form to your local electricity utility you will be confirming that your client condominium corporation is eligible for the OCEB under the OCEBA.

For further information on your client’s eligibility, please contact your local electricity utility or refer to the definitions of “eligible account” in the OCEBA and “property” in the Condominium Act, 1998.

Like most legislation, the effect of the 1998 Act was generally positive but mixed, largely because it solved a lot of problems but left some unaddressed and created a few new ones. The Toronto Chapter of the Canadian Condominium Institute (CCI) and the Association of Condominium Managers (ACMO), which together played a tremendous role in developing the 1998 Act, have led the charge over the past ten years for additional changes to the Act. They have mounted a herculean effort and gathered input from all sections of the “condosphere” to prepare and propose legislative changes intended to simplify the lives of condo developers, unit owners and directors and help balance the competing interests of these stakeholders.

Those efforts, like the 1998 Act itself, have met with mixed results. While CCI and ACMO have attracted some significant attention from the sitting government in the last couple of years, the efforts to fix the problems in the 1998 Act during the first several years were largely ignored, apparently on the basis that the Act was relatively new and therefore a less pressing priority for government. In addition, the government that came to power in 2003 was completely unfamiliar with CCI and ACMO and their efforts in shaping the 1998 Act. This changed after a sustained and significant focused effort but has not yet led to any major revisions to the Act.

It is true, however, that there have been numerous small amendments to the Act over the past decade. Most were inconsequential or simply housekeeping in nature. We reported on all of the most recent ones here and here.

One major success achieved by CCI and ACMO was to secure a regulatory amendment that grants condos an additional five years to top up their reserve funds. While seemingly positive, the practical value of this change is small, since nothing in this portion of the Condo Act would ever cost taxpayers a dime and, further, this deadline would never be enforced by government anyhow. Truth be told, the amendment was given as a token gesture to help offset the major financial impact of the Harmonized Sales Tax on condominiums and unit owners. That said, the fact that government listened to CCI and ACMO, recognized that the Condo Act and regulations can be amended to help people and that they actually did something about it is, by itself, an important achievement.

Much more is needed to be done in order to make meaningful change in our condo law and to give real relief to condominiums and unit owners. Unfortunately, the condo industry’s movement to persuade government to review and revise the 1998 Act will soon pause as Ontario moves towards a general election this fall. Then it lies with the voters to determine who sits in government. What will become interesting to watch is whether and to what extent condo-related issues factor into the election and what result might come from that.

While condo issues have never figured prominently in party platforms during provincial election campaigns, the 2010 Toronto mayoral race may be a sign of things to come in a few ways. First, the concept of “value to taxpayers” which won the election for Rob Ford and which rings especially loudly for condo unit owners could manifest itself as a province-wide mantra this fall in the provincial campaign. Second, organizations such as CCI-Toronto, who held a brilliant mayoral debate on condo issues, might schedule similar events to help bring condo issues to the forefront in the provincial campaign. These sorts of events would help remind condo dwellers to consider the good of their condominiums when making their choices at the polls, as they should, and get candidates and their parties to think seriously about these issues while on the hustings. This will increase the odds of meaningful things getting done after the election.

Another reason that condo issues can and should be a larger priority issue in the upcoming election is the sheer numbers. CCI estimates that over 6,700 residential condominium corporations exist in Ontario which collectively house more than 1.2 million people, including at least 800,000 voters. With thousands of new units coming online in the near term, this number of condo-dwelling voters will only increase over time. It follows, then, that issues confronting condo unit owners will likely influence their decisions come election time and will have a greater impact in our elections. Consider, for example, that the impact of the HST, rising energy prices and smart-metering is likely affecting the bottom line of every single condominium (and, as a result, their unit owners’ pocketbooks) in a material way. Politicians would be insane to ignore these sorts of issues that lie near and dear to the hearts of so many unit owners and voters.

One of those issues that might come to the forefront could be the much-needed revision to the Condo Act.

The current government’s willingness to seriously consider further amendments to the Act is unclear at this point but the opportunity to reveal its plans will certainly present itself during the upcoming election campaign. The opposition, on the other hand, has already publicly stated its intent to review the Condo Act if elected. At CCI’s Golden Horseshoe condo conference in April 2011, Niagara-area MPP and PC Leader Tim Hudak addressed a crowd of over 300 condo owners and directors. He promised changes to update the Condo Act “to reflect modern realities” and also to address the cost of energy, which is one of the largest budget items for almost any condominium.

Hudak was a last-minute addition to the conference agenda and appeared to score major points for the promises he made in what rang out clearly as an election campaign speech. While some balked at the blatant partisanship, the fact is that the sitting minister in charge of the Condo Act was invited to appear at this conference but did not attend or send a delegate in his stead. Such decisions, which seem to smack of indifference, will become increasingly costly to any politician or party, given the rising number of condominium owners and their potential to organize as a voting bloc. No politician or party can afford to alienate this growing constituency.  [Update: Minister Gerretsen has responded to that point with a letter to clarify the issue. His letter can be viewed here.]

With politicians’ recognition of the growing importance of the condo voters and with the skillful and persistent continuing efforts of CCI and ACMO, there is cause for hope that our Condominium Act will be much more mature by the time it turns 20.

Eight members stood to fill three slots on the 9-member board and each described their vision for the future of ACMO and the condominium management profession. The candidates were diverse in their location and the nature of their practice, but all were united by their exceptional experience and desire to serve their fellow condo managers.

In the end, the members re-elected Allan Rosenberg of Toronto and elected two new directors, Helen Kennerney of Alliston and Debbie Wilson of Ottawa.

Allan’s re-election is welcome news and Helen and Debbie joining the board is seen as particularly positive as they practice their craft outside the Toronto area. This added regional diversity on the board will obviously help ACMO increase its presence in other regions of the province, a goal that is common among GTA-centered industry associations but is not easy to conquer.

Additionally, this election brought the number of women on ACMO’s board to a 5-4 majority. While the significance of such developments might seem to decrease with the increasing frequency of these milestones, they are still cause for celebration.

Before being roundly applauded for his nine years of service on the board, outgoing president Chris Antipas reported on the association’s work over the past year and the remarkable progress that has been made. He also spoke of the future and some of ACMO’s goals, including:

• Continued expansion of the Registered Condominium Manager (RCM) designation;
• A licensed RCM in every condominium;
• Expansion of the ACMO 2000 certification program;
• Increased educational opportunities for managers both in and outside the GTA.

Outgoing director John Belford, who chose not to stand for re-election, was also saluted for his contributions to the ACMO board and for his trademark sincerity and passion which is always evident in his dealings with stakeholders.

Congratulations to ACMO on a successful year and a lively AGM, and thanks for giving me a front row seat.

If passed, Bill 138 would:

• authorize the Association to set qualification requirements to be admitted as a member;
• prohibit any person who is not a member of the Association to use its designations, including “Registered Human Resources Professional” and impose fines for unauthorized use;
• permit the Association to grant, refuse or restrict the ability of a firm to practice in the field of human resources;
• require members to be investigated immediately upon becoming bankrupt or incapacitated;
• establish procedures for dealing with complaints against the Association’s members and firms and establish a disciplinary process;
• allow the appointment of investigators and inspectors to conduct investigations and inspections under the Act;
• permit the Association to obtain a court order for custody of a members property in certain circumstances.

The current status and full text of the bill can be viewed on the legislature’s website.  See also Hicks Morley’s HR Legislative Update blog for useful expert commentary.

While the concept of regulating HR people might not generate much excitement for our blog’s loyal readers, it presents an interesting opportunity to help kickstart the movement to regulate the condo management industry. At first glance, Bill 138 appears to provide a reasonable model for converting almost any industry association into a self-regulating body. Its provisions would likely work well for the condo management industry while providing meaningful protection to the public, which should be the ultimate factor in considering the regulation of any industry.

Instituting proper regulation of the condo management industry is long overdue and the public interest demands it. Despite the good work of organizations like ACMO in raising the bar for managers and helping condo boards identify suitably qualified firms and individual practitioners, the daily news in every province and state contains stories of incompetence, misfeasance and outright theft committed by property managers. In places like Ontario where no government regulation exists, homeowners victimized by a manager are left to rely on the criminal justice system to punish the offender and must fend for themselves in civil court to recoup their losses. This government inaction costs Ontario condo unit owners countless millions of dollars each year and, even worse, allows untrained or corrupt property managers to victimize an endless stream of condominium corporations and their owners with impunity. This is a travesty that the industry, led by ACMO, seeks to address.

It is strikingly odd that human resources professionals, whose impact on the general public is relatively minimal, have made such advanced progress towards government-sanctioned self-regulation compared to condominium managers. The condo management profession is arguably a far superior candidate for self-regulation (or any form of government regulation), given that managers are entrusted with administering assets worth billions of dollars belonging to millions of Ontario home owners. The daily work of condo managers hits much closer to home, quite literally, than almost any other profession and it seems astonishing that their industry does not receive proportionate attention by the government when compared to human resources professionals as evidenced by Bill 138. While the analogy is overly simplistic, it defies logic for a person or firm that keeps track of employee sick days to be more tightly regulated than the person or firm that manages the multi-million dollar reserve funds of several condo corporations. This point (or, hopefully, a better one) needs to be made to government now, using big bright letters.

Bill 138 was introduced as a private members bill by a liberal MPP in November 2010, passed second reading on March 3, 2011 and was referred to committee. It is unclear whether the bill will become law before the current legislative session is terminated for the general election this fall. If the bill dies on the order paper, it is even less clear if the bill will be revived after the election.

Regardless of whether Bill 138 passes or sputters out and dies like most private members’ bills, its framework and laudable goal to increase professionalism can and should be salvaged, improved and customized to suit the needs of other organizations, such as ACMO in the case of the condominium managers. The managers and their clients, being the millions of condo unit owners in this province, should take advantage of whatever opportunity might arise to make their voices heard and get the government’s attention.  Work needs to begin soon on the Registered Condominium Managers Act, 2011.

Session: 3C - Friday at 2:15 p.m: Building Responsible Digital Communities

Moderator: Dean McCabe, Brookfield Residential Services Ltd.
Speakers:
Darryl Deen, D-Tech Consulting
Chris Jaglowitz, Gardiner Miller Arnold LLP
Denise Lash, Heenan Blaikie LLP

Join us as we explore the benefits and the pitfalls of using technology to increase communications in the condominium community. New technologies including Twitter, Facebook, discussion forums, condominium websites and blogs can make your management more effective, your board aware of owner's concerns and your owners and residents better informed about the environment in which they live. In this session we will discuss how to reap all of these benefits while still protecting the privacy of residents and understanding the legal implications and liabilities of using this technology.

Session: 4A - Saturday at 10:45 a.m.: Mediation and Arbitration - Condomunium / Human Rights

Moderator:  Mark Arnold, Gardiner Miller Arnold LLP
Speakers: 
Gary M. Caplan, LLB., Mediator / Arbitrator, McCague Peacock LLP
Steven D. Hill, RCM, Vice-President - Condominium Division, Canlight Hall Management Inc.
Christian Vernon, Lawyer, Pinto Wray James LLP

Many disagreements between unit owners and condominium corporations have a human rights
component often involving handicap or family status issues. Condominium disagreements must be mediated and arbitrated under the Condominium Act, 1998. Human Rights Complaints are subject to procedures provided for in the Human Rights Code which also include mediation and arbitration. These procedures often overlap and there is uncertainty as to the best way to proceed when a corporation is confronted with a disagreement or complaint under both legal regimes.

This session will review mediation and arbitration process and procedure under the Condominium Act 1998 and the Ontario Human Rights Code.

A panel of legal and property management experts will also review, as a case study, the recent settled case, “Tinkerbell The Dog” who moved into a Toronto condominium building designated by its Declaration as “No Animals Permitted”.

Important update on Reserve Fund Change 
made by the Ontario Government:

Together CCI (Toronto) and ACMO are pleased to update you on important progress we have made in our discussions with the Ontario Government related to Reserve Funds. 

The provincial government has just confirmed that it will be giving condominium corporations that were registered before May 5, 2001 more breathing room when it comes to their reserve funds and the requirement to "top them up". According to the Minister of Consumer Services, this is a move the government believes will give Boards more flexibility with their budgets, and assist in taking some pressure off increasing common expenses.

Acknowledging that the statutory "topping up" deadline is fast approaching, the government agreed with our submission that it was appropriate to review the environment within which the industry is operating, including the current economic climate.

Thus the government has taken an important step by deciding that Corporations registered before May 5, 2001 will have 15 years, and not 10 years, from the date of their first reserve fund study to top up their reserve funds. This change will reduce the impact of the HST on reserve funds as any shortfall can be gradually collected or transitioned over an additional 5 years, eliminating the need for immediately seeking additional funds from owners, which would have put an additional financial burden on them.

This change will come into effect on July 1, 2010 and ACMO and CCI (Toronto) look forward to working with the government in implementing it.

This Reserve Fund extension is one of several constructive solutions that we recommended to the government and have been advocating very hard over the past year. These are solutions to try to solve many serious issues related to condominiums in Ontario, including the impact of the HST on owners. It is a greatly appreciated measure from the government that will benefit many owners in Ontario to varying degrees.

However, our work does not stop here. CCI (Toronto) and ACMO are continuing with their efforts on behalf of the condominium industry to obtain solutions to the serious and unique problems facing condominium owners, and we look forward to continuing our constructive dialogue with the government on these issues, and in particular with the Hon. Sophia Aggelonitis, Minister of Consumer Services.

First, your corporation should engage the services of a professional property management firm. One of the main functions of any reputable management firm is to direct their collective skill, knowledge and experience to solving a host of problems or disputes in a condominium setting. In selecting a management firm, start with those that have earned or are working towards the ACMO 2000 certification. This designation is conceptually similar to the well-known ISO-9001 certification and consists of measurable minimum standards of performance and service. The ACMO 2000 certification is administered by the Condominium Management Standards Council at the Association of Condominium Managers of Ontario (“ACMO”).

Second, insist that your on-site manager possess or be working towards the Registered Condominium Manager (“RCM”) designation. This designation, administered by ACMO, is granted to individuals who have achieved a minimum two years’ experience in condominium property management and have successfully completed a comprehensive educational program covering administration, condo law, physical building management and financial planning. The condo board is often only as knowledgeable as its front-line manager. Make sure yours is well-qualified.

Third, your corporation and unit owners can (and should!) take advantage of the excellent educational courses offered by your local chapter of the Canadian Condominium Institute. Here in Toronto, the local CCI chapter has a full slate of courses of various lengths on a number of practical topics for condo directors, owners and even prospective purchasers. It would be ideal for every condominium director and owner to take some of these courses.   The small cost of these courses is insignificant when you consider the fact that most condominiums are million-dollar operations that directly and significantly impact the lives of their unit owners.  

Fourth, managers, directors and owners should consider and explore other educational opportunities, such as:

• Annual CCI-T / ACMO Condominium Conference
• Toronto Condo Show
• PM Expo 
• ...and others.

Having professional management and a well-educated board and membership will go a long way towards avoiding or minimizing the most commonly encountered disputes and problems.