A brand-new Occupiers Liability Act provision requires Notice to be given by a person injured by ice or snow on privately-owned property, within 60 days after the date of injury.

That Snow/Ice Injury Notice must describe in writing the location, date, time and circumstances giving rise to the injury.  The Notice must either be sent by registered mail or else personally served upon an owner or occupier of the property (presumably including the manager, a director or officer of a condo).  When applicable, such a Notice should be given to an independent contractor and any particular owner or resident of a unit when involved with removing snow or ice on the property.

These new Snow/Ice Injury Notice requirements received Royal Assent on December 8, 2020 but will not come into effect until proclaimed into law by the Lieutenant Governor.  Since an injury caused by snow or ice is the only criteria to invoke this type of occupier’s liability claim, any kind of injury caused by snow or ice could be applicable – whether caused by a skidding automobile, falling ice or a slip and fall scenario.

If any owner, resident or guest serves a Snow/Ice Injury Notice upon your Corporation, consider whether you should in turn serve such a Notice upon your snow removal provider or other parties as a precaution (although, once the first Snow/Ice Injury Notice has been provided to any one of the parties, that 60-day limitation period restriction ceases to apply to any other party involved in a subsequent lawsuit).

If an injured party fails to give that Notice within the 60-day limitation period, they could expect to lose their legal right to recovery of monetary damages.  However, that limitation period does not apply if the injured person were to die because of the injury.  Also, a person demonstrating a reasonable excuse for failing to provide the Notice on time might be able to extend the limitation period where there was no adverse effect upon the defendant parties.

But watch out – in the case of a snow or ice “slip and fall” occurring upon municipal property, the right to sue the municipality is lost if the applicable Notice is not served upon the municipality within the 10-day limitation period after the date of the injury.

The courts kicked-off the year with the release of a decision discussing condominium arbitrations and the importance of explicit appeal rights in arbitration agreements.

This case involved a unit owner, who operated a legal cannabis store at the condominium building. The condo   believed this breached a rule prohibiting cannabis sale at the property. Through an arbitration proceeding, the unit owner was found to be in breach of the rule and section 119 of the Condominium Act (the “Act”). After the arbitration decision was given, the unit owner asked the court to grant leave to appeal the arbitration decision.

The arbitration agreement between parties sets out the four corners of an arbitrator’s jurisdiction and any appeal rights. Unless the agreement provides otherwise, the standard appeal provisions of the Arbitration Act apply, which allow parties to appeal a decision only on “questions of law” with the court’s leave (among other requirements).  “Questions of law” are errors in the arbitrator’s application of the law.

In this case, the court analyzed the arbitration decision and the parties’ arguments and concluded that the arbitrator had considered more than just an application of law but had also applied facts to the law. This meant the court was being asked to review a question of “mixed fact and law”, and not a pure question of law. Since the arbitration agreement between these parties didn’t expressly provide for appeal of questions of mixed fact and law, the court had to deny leave to appeal to the unit owner under the narrow appeal rights of the Arbitration Act.

The court also highlighted that an arbitrator’s decision in a private arbitration proceeding should be reviewed with deference, acknowledging the jurisdiction of an arbitrator as a decision maker freely appointed and chosen by the parties.

It is important that arbitration agreements are carefully reviewed to reflect the parties’ wishes because the agreement defines the relationships and rights of the parties even after the end of the arbitration proceeding.

The latest issue of our newsletter Condo Alert! Winter 2020 features our Top 10 condo cases of 2020.

We hope your holidays were restful.  We wish you a fresh start, health and happiness in 2021.

A reminder of our fresh start –   we’ve moved up – one floor – at 390 Bay Street, Toronto.  Our new suite is 1400.  The opportunity presented itself to shift to flex-hotel offices in the same building, which lets us work remotely or on site seamlessly.   Our phone number (416) 363-2614,  phone extensions, email addresses and fax number (416) 363-8451 stay the same.

All the best in the new year,

Andrea

 

The Condominium Authority Tribunal recently granted an order under Rule 4.5 of its Rules of Practice for the first time since its inception. Rule 4.5 states:

If the CAT finds that a Party has filed a vexatious Application or has participated in a CAT Case in a vexatious manner, the CAT can find that Party to be a vexatious litigant and dismiss the proceeding as an abuse of the CAT’s process. The CAT may also require that a Party found to be vexatious to obtain permission from the CAT to file any future Cases or continue to participate in an active Case.

In Yeung v. MTCC 1136, the Tribunal dismissed two Applications and considered whether an order under Rule 4.5 was warranted. In coming to its decision, the Tribunal considered the history of the Applicant’s conduct and noted:

  • The Applicant submitted several cases where it was obvious he could not succeed. This was exemplified by multiple cases where he requested a penalty that the Tribunal had no authority to impose.
  • The Applicant brought Applications that are brought for purposes other than the assertion of legitimate rights. This included recent applications for minor or clerical issues (for which the corporation should be afforded a legitimate amount of tolerance without rendering the records inadequate) and requests for substantial penalties that have no basis of success.
  • The Applications rolled forward grounds and issues from prior cases, either by submitting Applications for the same records with slightly altered grounds or by identifying minor errors in different records.
  • The frequency of new Applications increased in 2020. The Applicant filed a record-setting eight cases since the Tribunal was created: one in 2018, two in 2019, and six cases in 2020.

The Tribunal concluded:

…I find that there has been a pattern of conduct by the Applicant that creates a burden on the Tribunal, and unfairly requires the Respondent to participate in cases with little merit. I conclude that there is sufficient reason to believe that without intervention, this would continue. Therefore, I grant the Respondent’s motion to require the Applicant to obtain permission from the Tribunal before filing any future applications.

The Condominium Act, 1998 is intended to be consumer-protection legislation and as a creature of that statute, the Tribunal was created for owners to resolve specific disputes in a cost-effective and accessible manner. Evidently, the Tribunal did not come to this decision lightly: it recognized that the order would “limit the Applicant’s right to access the Tribunal” and “remove the opportunity to resolve disputes informally in the Tribunal’s negotiation stage”. However, access to the Tribunal is not an absolute right. A fine balance must be struck between allowing owners to redress legitimate concerns and preventing Applicants from misusing the Tribunal’s process at the expense of other owners.

Approximately two months have passed since the CAT’s jurisdiction expanded beyond condo record requests to include disputes regarding, pets, parking, vehicles and storage and chargebacks related to such issues.  However, the CAT has yet to release a decision dealing with these new topics. It may  take some time for cases involving expanded jurisdiction issues to wind through the CAT’s online dispute resolution system.  In the meanwhile, enjoy Part 2 of our deep dive into record disputes (Part 1, here).

Continue Reading Key take-aways from the CAT’s record request decisions – Part 2

There are limited circumstances where directors of condominium corporations can be personally liable for oppressive conduct under Condominium Act, 1998.

In a recent Ontario Superior Court of Justice decision, the declarant (also a unit owner at a vacant land condominium corporation) sued the condominium corporation and the individual directors.  The allegations of oppressive conduct by the condo and directors included exaggerating construction deficiencies and not repairing them at the same time, implementing rules that impeded the declarant’s ability to rent units and adding these issues to status certificates (among other allegations). The condo corporation brought a motion to throw out the claim against the individual directors under the rules of the court.

The court threw out the claim against the individual directors because:

  • the declarant did not provide sufficient particulars as to what each individual director is alleged to have done, as differentiated from the condo corporation’s alleged conduct; and
  • the alleged conduct of the individual directors did not result in any personal benefit or increase their control in any way; and
  • there was no reasonable basis in the claim for the court to decide whether the alleged oppression could be rectified by a monetary order against the directors personally.

Continue Reading No oppression claim against directors personally unless a director instigates the conduct

Most  condos  now conduct business through electronic meetings, which can be recorded by the host.  Meeting recordings are not a novel concept but our recent dependence on electronic meetings has given them new life.  Minute takers have historically recorded in-person meetings to aid in accurate minutes and to best recall the details of important discussions.  Similarly, an electronic meeting recording can serve the same purpose – ensuring accuracy and transparency in meetings where there is a broad interest to owners but owners can’t attend in the traditional sense.  We are never against something that promotes but also clearly memorializes (hopefully) fair process.

The electronic condo meeting and recording should be for the benefit of the condo and its owners.  To ensure that, we’ve developed  best practices for electronic meeting recordings, which can translate to in-person meetings too.

Continue Reading Electronic meeting recordings and best practices

When Amlani v. YCC 473 was released at the start of the year, it was the immediate frontrunner for “2020 Condo Case of the Year”. YCC 473 appealed and even in a year of fascinating cases, the Amlani decision still holds its seat at the top of that mountain.

The initial Amlani decision dealt with a common situation. In a nutshell, the board received complaints about Mr. Amlani’s smoking so they instructed their lawyers to deal with the matter. YCC 473 relied upon the indemnity provision in its declaration to charge back its legal expenses to Mr. Amlani and subsequently register a lien against Mr. Amlani’s unit to collect its legal fees.

The initial judge held that YCC 473 could not rely upon it’s the indemnity provision to charge back its legal costs for two key reasons:

1. Mr. Amlani did not commit “an act or omission to or with respect to the common elements and/or all other units” as required by the indemnity provision; and

2. YCC 473’s interpretation of its indemnity provision contravened section 134 (5) of the Condo Act as the costs it claimed related to compliance and enforcement costs without being embodied in a court order.

Section 134 (5) of the Condo Act allows a corporation to add its enforcement costs to an owner’s common expenses if a court awards the corporation its damages or costs in bringing a compliance application. Section 134(5) does not itself authorize a lien for legal fees incurred prior to the compliance application: to register a valid lien for legal fees, the court must first award these fees. However, many condominiums rely on their indemnity provisions as a “catch-all” provision to permit a corporation to add certain costs to an owner’s ledger resulting from their acts or omissions, often without requiring a court order.

The Amlani decision sparked considerable debate amongst condominium lawyers. Some of our esteemed peers argue that you cannot rely on an indemnity provision to charge back legal compliance and enforcement costs without first obtaining a court order. Others took the position that Amlani was a fact-specific decision that turned on the specific wording of YCC 473’s indemnity provision; they argued the Amlani decision does not stand for the proposition that a court order must be obtained before any pre-litigation legal compliance and enforcement costs can be charged back.

The Divisional Court recently set the record straight: condos cannot rely on their indemnity provisions to enable a lien to be registered against a unit to charge back compliance and enforcement costs without a court order. This does not mean a condo can’t recover its pre-litigation compliance and enforcement costs – condos can seek these costs in an s. 134 (5) order but registering a lien for these costs before the order is obtained is improper.

Continue Reading Amlani and indemnity provisions – All Bark, no bite? Not quite

I love hearing from all of you after our posts!

Even your messages of bewilderment and concern about yesterday’s disappearing blog post.

A draft of version of the post was inadvertently published while multitasking on a vacation day. In a panic, the post was deleted. At least the whole blog wasn’t deleted.

Thanks for all your notes and thanks for reading!  More from us soon!

Andrea