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The Condominium Authority Tribunal, Ontario’s first and only online adjudication body, celebrated its first anniversary on November 1, 2018.

Envisioned as a one-stop shop of expert mediators and adjudicators helping condo boards and unit owners resolve condo disputes across Ontario, all entirely online, the CAT began accepting cases in November 2017. CAT’s initial jurisdiction is presently limited to condo records, which isn’t sexy but is important to unit owners struggling to access important records from their condo corporation. It’s also important for managers and boards to have clarity as to when records should not be produced, to protect the corporation and its owners.

From May to August 2018, the CAT released its first 8 decisions, covering a variety of scenarios. We will summarize those first 8 cases then offer a few lessons and predictions.…
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A recent small claims court decision signals the end of condo management firms preparing, registering and discharging condominium liens in-house.

Page v. Maple Ridge Community Management Ltd., 2017 CanLII 21772 began when a unit owner at YCC 34 failed to pay a special assessment in time. YCC 34’s management firm, Maple Ridge, used its in-house paralegal employee to issue Ms. Page a Notice of Lien (Form 14) and, when no payment was made within the 10-day notice period, to register a certificate of lien against the unit.

Ms. Page discovered that the paralegal employee was administratively suspended by the Law Society at the time the lien was registered, presumably for failing to pay annual dues or file obligatory paperwork.  Ms. Page paid “under protest” the special assessment arrears of $767 and the management firm’s demanded fees of $141 to issue the Form 14 notice and $678 to prepare, register and discharge the certificate of lien. The management firm’s total charges for the lien work were $819.…
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New year 2016Happy 2017! Here’s our recap of some of the most notable condo law cases from the year gone by.

#10 – Cheung v. York Region CC 759, 2016 ONSC 4236

Many condominiums have insufficient parking for occupants and guests, requiring the board to allocate available common element parking spaces in a way that balances various competing interests and respects local zoning bylaws. In this case, the condo corporation enacted a bylaw which leased 4 common element parking spots to each unit owner to distribute parking more equitably than “first come, first served.” The bylaw was challenged by a unit owner whose tenant operated a popular restaurant requiring much more parking than was allocated. The owner argued that the bylaw was unlawful and oppressive but the court disagreed, upheld the bylaw as valid and found that the unit owner’s expectation to monopolize most or all of the parking for the restaurant was arguably oppressive.

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Section 135 of the Condominium Act, 1998 (the “Act”) gives unit owners, condo corporations, declarants and mortgagees the right to bring applications against one another for relief against conduct that is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant.

Where a court finds the existence of oppressive conduct, it may make any order it deems proper, including an order prohibiting the conduct and an order requiring payment of compensation.  …
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April 13, 2016 was International Day against Bullying, Discrimination, Homophobia, Transphobia, and Transmisogyny, better known as the “International Day of Pink.” A recent Ontario Human Rights Tribunal decision demonstrates that condo boards must apply the Day of Pink concepts every day of the year.

In Welykyi v. Rouge Valley Co-operative Homes Inc., the Tribunal chastised a co-operative housing corporation for not responding seriously, swiftly or effectively to a series of nasty, discriminatory and offensive messages against specific residents distributed by unknown perpetrators. The 10 affected residents each made a human rights complaint to the Tribunal that were heard together and addressed in a single decision.…
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Those who have followed our blog for a while have come to expect our “Top 10 cases of the year” to be posted in late December.  This is a natural time to reflect on the year gone by, spot trends, make predictions and look forward to the next year’s challenges.

This year, we vary our year-end tradition by posting a single round-up of all the condo-related cases we tweeted about since January 1 and will publish our “Top 10” list following a special educational luncheon hosted by the Association of Condominium Managers of Ontario on January 22, 2016.  There, GMA’s Bob Gardiner will moderate a panel of legal experts presenting their top 10 picks and the important lessons they hold.

The job of selecting the top 10 will not be easy.  This year’s crop includes more than 40 cases, of which the following are among the most notable.  Admittedly, this list is imperfect, as it excludes unreported cases and is Ontario-biased in that it includes very few cases decided by courts outside Ontario.

Ladies and gentlemen, here are your contenders for Top 10 Condo Law Cases of 2015:…
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Condo directors in Ontario are expected to exercise a certain degree of attentiveness, caution and prudence while carrying out their duties. This expectation is known as the “standard of care” and is set out in section 37(1) of the Condominium Act, 1998, which provides:

37.  (1)  Every director and every officer of a corporation in exercising the powers and discharging the duties of office shall,

(a) act honestly and in good faith; and

(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

While the wording of this standard of care seems pretty simple, some directors don’t entirely understand what it means.  A recent Superior Court case illustrates that some directors don’t understand it at all, or don’t care.…
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Happy New Year!Happy New Year.

Our picks for the top 10 condo law cases of 2014 is an all-Ontario batch, with half being important Court of Appeal rulings.   Some of them highlight the dire need for significant revision to our condo law.

10.     TSCC 1908 v. Stefco Plumbing & Mechanical Contracting, 2014 ONCA 696

Expired condo lien rights cannot be revived. Unpaid common expenses are not damages that can be recovered with a compliance order (where 100% costs recovery is typically assured).  If you snooze, you lose and must sue the owners for a liquidated debt as any other unsecured creditor and any shortfall should be paid by the person(s) who allowed the debt to age beyond the 90-day lien period.   Condo corporations can minimize the odds of losing their first-place security over unpaid common expenses by working with a professional condo manager and enacting a collections policy.

9.       Boily v. Carleton 145, 2014 ONCA 574

The Court of Appeal upheld a contempt order against board members who breached a court order but significantly reduced the penalty and the costs payable by those directors personally.  While one of the court’s motives in softening the penalty and costs award was presumably to avoid dissuading people from serving on condo boards, the ruling leaves this corporation (and its entire ownership) holding the bag for a lot of costs arising from a board run amok. Similarly, the individual unit owners who spearheaded this litigation to hold the board to account are likely financially devastated from their effort and the hollow result.   No good deed goes unpunished.

8.       Gordon v. YRCC 818, 2014 ONCA 549

The Court of Appeal upheld a condo by-law permitting the board to disqualify directors after an internal “ethics review.”  Some observers hail the approval of such by-law as a victory, but it may cause more problems than it solves.  Allowing the majority of a condo board to unseat directors may periodically be helpful, but it strikes at the heart of condominium democracy and creates a real potential for abuse.  While the ownership may recall and remove directors at a whim, boards holding their own “ethics review” must do so in accordance with procedural fairness, good faith and act reasonably, failing which the process is open to judicial review, thereby giving rise to needless litigation and cost.  If the purpose of the by-law is to provide for swift, painless removal of bad-apple directors, it is defeated by the increased likelihood of a lawsuit and the prospect of a shining knight or whistle-blower being ousted by rogues.   Just because it may be possible to implement such a process to remove directors doesn’t mean it’s a good idea.…
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MC900300842As the buying frenzy for new condos continues, a growing trend threatens to leave purchasers poorly protected against construction deficiencies.   Purchasers and their lawyers should pay attention.

In recent years, some developers’ agreements of purchase and sale for new units began including limits on the developers’ warranties for those units.   But that wording would usually not prevent the condo corporation from making claims for construction defects in the common elements.  That has changed.

More recently, some developers will make agreements between themselves and the condo corporations under their control in the early days after registration, where the corporation releases the developer from all warranties and claims for construction deficiencies except for the minimal coverage under the Tarion new home warranty.   Those agreements might be authorized and registered on title to all the units using a condo by-law.

The result is that the condo corporation turned over to its purchasers has no legal recourse against its developer for construction deficiencies, other than to make claim under the Tarion warranty, known for its many shortcomings and limitations.   This leaves the condo corporation having to pay the cost to repair most construction deficiencies from its own funds, leading to rapid increases in common expenses and surprise special assessments.

What makes this slick practice legally acceptable is that the release agreements and authorizing by-laws are disclosed to purchasers as part of the disclosure materials and the by-laws are registered on title following the condominium’s registration, thereby giving the world fair notice.   But is fair notice enough?

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In addition to people, pets and parking issues, this autumn’s harvest of condo-related court and tribunal decisions includes a bumper crop of court of appeal cases dealing with:

  • Expired condo liens;
  • Contempt of court by directors;
  • Bylaws permitting in-house “ethics reviews” for directors; and
  • Bylaws releasing developers from construction warranties.

Plenty of interesting reading.

HRTO…