With the change of season, our focus switches from sunshine and leisure back to the serious business of law reform.
There are plenty of different items presently open for consideration. Here are the most noteworthy for condominium stakeholders.
Ontario New Home Warranties Plan Act (Tarion)
In November 2015, the Ontario Ministry of Government and Consumer Services commenced an independent review of the Ontario New Home Warranties Plan Act and Tarion Warranty Corporation. Justice Douglas Cunningham was appointed special advisor to review protections for owners of new homes and identify opportunities to improve consumer protection.
Justice Cunningham issued an interim progress report in late July. Read the report and send your input on the findings and proposed options presented by October 14, 2016, which will help inform the final recommendations.
It’s noteworthy that Justice Cunningham observes that “condominiums are distinct from other new homes” and that there is consequently a “need for more condominium-specific provisions in the legislation.” Beyond that, the report is vague on these concepts, but remember that changes to the Tarion Act are mandated as part of the amended Condominium Act.
Construction Lien Act
In late September 2016, the Ontario Government’s expert panel to review the Construction Lien Act released its report and recommendations for modernizing the construction lien remedy, now almost 150 years old in Ontario.
The Attorney General is reportedly soliciting input from industry groups and stakeholders through the fall and winter.
The report recognizes (but does not endorse) a thoughtful submission by ACMO and CCI-Toronto to re-think whether there’s any need or value in contractors using construction liens to compel payment by condominium corporations for work performed on common elements.
The report also recognizes submissions by ACMO, CCI-T and Ontario Bar Association to eliminate the preposterous but too-frequent cases of construction lien claimants suing each and every unit owner (often hundreds of people) for unpaid work performed on the common elements for the condo corporation. In addition to bewildering unknowing unit owners, the status quo creates needless complexity and costs for the lien claimant and the condo corporation, making it harder and more expensive to resolve disputes over cost and workmanship.
To address this issue, the report adopts the recommendation to create a common elements PIN for each condominium, which would allow a construction lien to be registered in one place only. Creating this single PIN would address a major failing of the electronic land titles system, which presently requires documents like condo bylaws and construction liens on common elements to be registered against each and every condo unit. This, in turn, makes registrations needlessly complex and creates documents with dozens of useless pages listing PINs. I’ve ranted about the impact of superfluous PIN pages on condo documents previously here, at item 12.
It is highly unlikely that this mundane but pervasive land registration nuisance can be solved through reforms to Construction Lien Act for the simple fact that land registry is run by a different ministry than the one that administers construction liens, but we hope to be pleasantly surprised.
Update: A PDF copy of the report is available here. Thanks, Derek Freeman!
Ontario Municipal Board
Ontario’s Ministry of the Attorney General has opened a public consultation on the Ontario Municipal Board. The consultation provides the public an opportunity to express views on whether the land use appeal system is responsive to the changing needs of our communities.
Submissions will be accepted until December 19, 2016.
Forfeited Corporate Property Act, 2015 (“FCPA”)
Starting in December 2016, this new statute drastically changes what happens to land (including condo units) owned by dissolved corporations. While condominium corporations are seldom dissolved, they often have claims against units owned by dissolved corporations that fail to pay common expenses. Condo corporations may also have an interest in asking government to transfer to them any forfeited parking and locker units that could be used more productively.
While regulations and procedures have yet to be proclaimed, there are serious questions as to whether condominium corporations will receive due respect by the province regarding liens for unpaid common expenses and about how forfeited units are ultimately used or disposed of. The FCPA contemplates the crown cancelling various encumbrances against forfeited corporate property (which could include condo liens) and permits the crown to make use of the property for itself.
Additionally, the statute provides for notice to be given to condominium corporations in certain limited instances, but there may be many more where giving notice would be sensible and appropriate. We will watch for the chance to make submissions on regulations to help maximize opportunities for the crown to dispose of forfeited corporate property in an expeditious, economical and advantageous way that benefits the community while conserving public resources.
At this moment, the government proposes to impose a $1,200 application fee for anyone seeking relief from forfeiture under s. 26 of the FCPA regarding a legal or moral claim to forfeited corporate property. Public input is being received until October 24, 2016.
While the feds’ consultation on legalization, regulation and restriction of marijuana closed in August 2016, we’ll watch for further consultation on other aspects or by other levels of government.
For now, marijuana “dispensaries” remain decidedly unlawful and constitute illegal use and operation. Condominium corporations need not stand by and watch their communities go to pot. Instead, condominiums can rely on the “compliance with law” provisions in their declarations to shut down these unsavory and unsafe operations.
Of course, it is preferable for local police to use their more powerful criminal law tools to shutter these operations until all three levels of government select and roll out their preferred retailing option. Toronto has led the way in this effort, while other communities have dithered.
Over the summer, Ottawa backed off from prohibiting growing marijuana in residences following a court ruling that the ban was unconstitutional. This revives the unwelcome prospect of noxious odours, humidity, electrical fires and floods arising from do-it-yourselfers growing weed in high-rise or townhouse condo units. While home-growing is no longer entirely illegal, it remains tightly-regulated by the feds, and municipalities and condominium corporations may fill the void by sharpening and enforcing their prohibitions on uses or conditions that cause nuisance and damage to surrounding residents.
Protecting Condominium Owners Act, 2015 (“PCOA”)
The PCOA was enacted in December 2015 to amend the Condominium Act, 1998 and the Condominium Management Services Act, 2015 (“CMSA”) but has yet to be proclaimed in force. This won’t happen until the underlying regulations are enacted under the Condo Act and CMSA. Draft regs are expected to be circulated for comment later this year.
In her recently-published ministerial “mandate letter,” Premier Kathleen directs Marie-France Lalonde, our newly-minted Minister of Government and Consumer Services, to implement “key elements” of the PCOA by Fall 2017.
To that end, Minister Lalonde reports to ACMO members this month that the proposed administrative authority (“AA”) to oversee the CMSA is the newly-incorporated Condominium Management Regulatory Authority of Ontario. Remember this name. The Ministry’s goal is “to have the AA up and running by July 1, 2017.” No doubt, this body will reach out to condo managers and the public for input on establishing the various standards and procedures for regulating Ontario’s newest profession.
As you can see, we have a busy fall and winter season ahead of us. Back to work!