GMA is proud of our comprehensive Standard Unit By-law (“SUBL”) and streamlined processing arrangements.

Our SUBL precedent has recently evolved.  We have buttressed its existing strict liability insurance deductible provision by specifically defining circumstances where an owner is liable for a water leak, fire or other “act or omission” perils, in case the government proclaims the proposed amendments to s. 105 of the Condo Act.

The SUBL can be adjusted to protect the Corporation from incurring excessive insurance deductible amounts.  We have also clarified the Corporation’s optional rights of inspection of various unit safety devices and hazards, including chargeback rights in s. 92 or s. 105 scenarios, as described below.   Here are some of our SUBL improvements:

Continue Reading Standard Unit By-law Upgrades

The Superior Court of Justice recently raised an interesting question: can a condominium corporation foreclose on a unit to enforce its lien? While the Court didn’t answer the question, raising the question seemingly casts doubt on what a corporation can or can’t do to enforce a lien. Fortunately, we don’t have to wait for another case to get our answer: earlier decisions have made it clear that a condominium lien can be enforced through foreclosure.

Continue Reading “Like a Mortgagee”: no uncertainty with condo liens and foreclosure/power of sale

Electronic signatures are the new normal in most corporate transactions. With physical distancing, gathering restrictions and many working remotely, electronic signatures make it easy for business to continue as usual, including at condominiums.

Meeting minutes, status certificates, proxies and requisitions, etc. may all be signed electronically.

But what is an electronic signature and when is it valid?

Continue Reading Condo business as usual with electronic signatures

When condo owners get hit with a lien, things typically go one of two ways: the owner pays the lien and everyone moves on with their life or the owner disputes the lien and a contentious battle ensues. A registered lien secures “reasonable legal costs and reasonable expenses incurred by the corporation to collect the lien” per section 85 of the Condo Act. Corporations often turn to their lawyers in lien battles and recoverable legal costs and expenses begin to mount.   One owner recently learned that lesson the hard way.

Continue Reading Lien challenges: applying pressure doesn’t stop the bleeding

A couple of weeks ago, the Superior Court of Justice released an important decision, HCC 77 v. Mitrovic, regarding mandatory masks in condos.   The court ordered two owners to wear a mask or face covering while on interior common elements but also granted an exception permitting them to travel on any interior common elements between their unit to the main entrance of the building or to their parking spot for the purpose of ingress and egress, by the most direct route without a mask. These owners had raised disability as the primary reason for an accommodation and exemption of Ontario’s, the municipality’s and the condo’s policies mandating masks or face coverings be worn in common areas of the condo but refused to provide information or documentation of a disability until the court hearing.

Under the Reopening Ontario Act, masks or face coverings are mandatory in all public indoor settings across Ontario, such as businesses, workplaces and condominium and apartment buildings. Like many other cities in Ontario, Toronto has passed a by-law requiring condo corporations to adopt a policy to ensure that persons permitted entry to or remaining within any enclosed common area are wearing a mask or face covering except if a person has an underlying medical condition which inhibits their ability to wear a mask (among other exceptions). Such individuals are not required to provide proof of any medical exemption.

So what information is required for an exemption from a mandatory mask policy?

A 2020 HRTO decision reiterated that the accommodation process is a shared responsibility and that there must be co-operative sharing of information since many medical conditions are invisible.

In this human rights case, an individual brought an application against the City of Toronto alleging that the City discriminated against him based on his creed and disability with respect to service and the City’s mask by-law. However, the applicant didn’t include the businesses that allegedly discriminated against him by applying the City’s by-law as parties to his application.  The case was dismissed.

Although the HRTO decision focused on the mandatory mask policy within a business context, these principles are applicable to condos:

  • To engage the duty to accommodate, an individual must identify that they have a disability-related need that requires accommodation. In the context of a mandatory mask policy, this means that, if questioned, an individual must identify to a business or condo that they have a medical condition or other reason requiring an accommodation that exempts them from the policy requirement to wear a mask while on the premises;
  • An individual seeking accommodation is not required to disclose a specific medical diagnosis, but may, in some cases, be required to provide information to verify their accommodation needs;
  • Once an individual identifies that they have a medical condition or otherwise require accommodation that exempts them from a mask policy, the individual ought to be permitted access;
  • However, a business or condo’s duty to accommodate is not infinite, but rather ends at the point of undue hardship. “Undue hardship” includes consideration of health and safety risks.

As demonstrated in HCC 77 v. Mitrovic, the court confirmed that the condo had the right and obligation to enforce its mandatory mask policy to prevent undue risk to other residents. The court ordered a permanent injunction prohibiting those owners from entering other floors of the building (except where their units are located) because this activity constituted a dangerous activity contrary to section 117 of the Condo Act and their right to access those non-public areas, mask-less, must be balanced against the safety of other residents of the condo.

When a resident requests accommodation from a condo’s mask policy, condos should consider the following:

  1. Condos must consider whether the accommodation request falls within a protected ground under the Human Rights Code. In this context, residents would likely request an accommodation due to a disability;
  2. Condos have a duty to accommodate an individual to the point of undue hardship if the accommodation falls within a protected ground;
  3. Condos should consult their lawyer because the specific circumstances of each scenario may impact the condo’s obligations;
  4. Condos should not request a specific medical diagnosis if a resident asserts they have a disability that requires accommodation;
  5. In some cases, the resident may be required to provide information to verify their need for accommodation;
  6. Condos must consider their duties to enforce governing documents and insist upon conduct that isn’t dangerous under the Condo Act, and the Occupational Health and Safety Act, to take reasonable precautions to protect the health and safety of workers interacting with unmasked individuals.

Interestingly, the HRTO found that “creed” within the meaning of the Human Rights Code was not engaged in this application and rejected the applicant’s objection to wearing a mask because the applicant believed that the efficacy of masks has not been sufficiently proven. The Tribunal reiterated that “creed” most often engages an applicant’s sincerely held religious beliefs or practices; mere political opinion does not engage creed.

Condo boards and owners should be familiar with the concept of “common elements” and “units”. While there is no “one size fits all” approach to distinguishing the two, in simplified terms, anything that is not part of a “unit” is a “common element”. Diligent boards and owners should review the condo’s Declaration  for inclusions/ exclusions to and from the unit,  maintenance and repair obligations and Schedule “C” to determine unit boundaries; the condo’s registered plan drawings will lay that out in an illustrated form. Understanding these points is critically important.

In Landont Ltd. v. Frontenac Condominium Corp. No. 11, Landont Ltd. used their unit to operate a commercial parking lot. Landont and FCC 11 agreed that the concrete slab below the lot was a common element, but this case turned on whether a waterproofing membrane installed on the upper surface of the concrete slab was part of the common elements. The distinction fundamentally determined which party was responsible for maintaining and repairing the membrane.

Continue Reading Unit and common element boundaries: Not always as “concrete” as they seem

OOctober 1, 2019, the prompt payment and adjudication regime of the Construction Act (the “Act”) came into force to improve payment and cashflow to contractors on construction projectsThe changes apply to any contract between a contractor and property owner for the supply of services or materials for any alteration, addition or capital repair to the land (among other work)Any condo who is party to such a contract is subject to the “28-7-7-7” prompt payment clock and adjudication regime.   

The changes also amended traditional construction lien legislation, including the deadlines to preserve and perfect a lien and holdback releases  

This is Part I of our two-part series, where we explore how these changes impact construction contracts, specifically the CCDC 2 Stipulated Price Contract, and projects at condos now that we have had about 1.5 years (and a pandemic!) to reflect on it 

Continue Reading Construction Act impact on condo projects  

The Condo Authority Tribunal’s decision in Rahman v. PSCC 779 is the first of its kind under the Tribunal’s expanded jurisdiction.  The case provides a strong warning against condos seeking to unilaterally impose costs against unit owners.

The Tribunal held that it had authority to hear this matter – a dispute concerning parking and indemnification – pursuant to the Condo Act’s newly instituted Regulations.

In this case, the condo sought to prevent an owner from using the condo’s outdoor “handicap” (i.e., accessible) parking space.  The condo argued that this parking location was meant for visitor parking only.  The condo also argued that the owner’s “Accessible Parking Permit” from the province did not qualify him to use the “handicap” space.

The owner argued that he was entitled to park in the condo’s “handicap” parking space (which was distinct from visitor parking), as he suffered a disability impeding him from accessing his own parking units, as evidenced by his “Accessible Parking Permit”.  The owner also argued that the condo’s compliance enforcement amounted to harassment.

The Tribunal held that to conflate the “handicap” parking with the visitor parking would deny condo owners any accessible parking.  The owner was parking in a “handicap” parking space as opposed to a visitor parking space.  The “Accessible Parking Permit” demonstrated a disability-related need to use the “handicap” parking.  In assessing the owner’s disability, the Tribunal favoured the owner’s doctor’s letter over the condo’s photographs of the owner, which provided no context or medical opinion.  The owner was complying with the condo’s declaration when using the “handicap” parking.  The condo was not entitled to rely on the indemnification provisions in its declaration to recover its enforcement costs.  Based on Amlani v. YCC 473, it was improper for the condo to attempt to collect its legal costs and fees by way of lien and notice of sale (without a court order).

Therefore, the Tribunal found that the owner was entitled to use the “handicap” parking space and that the condo’s compliance enforcement costs were invalid.  The Tribunal ordered the condo to: 1) provide the owner an accounting of its indemnification costs (including for legal fees); 2) immediately cease its compliance enforcement efforts (including the continued lien registration and notice of sale); 3) reimburse the owner, as the successful party, his $200 filing costs; and 4) pay the owner $1,500 as recompense for the time, trouble and expense it caused him.

Lozano v. TSCC 1765 was one of our Top 10 cases for 2020 because it reaffirmed that a higher negligence threshold is not applicable for s.105 chargebacks. You can read a summary of the case in our newsletter, Condo Alert!, Winter 2020

 Lozano’s insurer (who paid the insurance deductible) appealed the 2020 decision, asking the Divisional Court to re-write s.105 of the Condo Act and adopt a “robust” negligence test for liability under that section. The court rejected this proposal and dismissed the appeal a few days ago. 

Continue Reading Never mind the ballcocks, here’s the shut-off valve