The CAT’s decision in Abou El Naaj v. Peel Standard Condominium Corporation No. 935 reflects a problematic trend of condos failing or refusing to participate in Tribunal proceedings. We do not recommend ignoring a CAT application… Just like real live cats, they don’t go away by simply ignoring them.
We understand why condos might not
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
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
As we blogged on July 14, 2020 – The Ministry of Government and Consumer Services intends to proclaim a “Condominium Guide” into force effective December 1, 2020. Submissions from the public on the proposed contents are due August 14, 2020.
We made brief submissions on further potential headings for the Condo Guide table of contents. These include status certificate and pre-construction condo purchase topics, first year deficiency and funding issues, conversion condominiums, and touch on the requirements for condo insurance, owner insurance and an explanation of standard unit vs. improvement coverage
In our view, the suggested contents are comprehensive and hopefully the plain-language content will be too!
In making our short notes, we had longer thoughts. Here are some items we hope get fleshed out in the Condo Guide content:
Continue Reading Considerations on the proposed “Condo Guide”
When the City of Toronto first enacted its mandatory mask by-laws, condominiums were noticeably exempt. But after much feedback, the City of Toronto has amended its mandatory mask by-law to require masks in interior condo common elements such as hallways and elevators. By August 5, all Toronto condominium corporations must adopt a mandatory mask policy.
The Leafs are back on the ice, the Raptors are looking strong as they gear up to defend their championship and the Jays have taken flight. Things are looking good for Toronto and it doesn’t stop with our sports.
On July 29, 2020, the Ontario government announced that Toronto will be joining its neighbours by moving into Stage 3 of the Province’s reopening plans (unfortunately for our friends in Windsor, they must wait a little longer). Many are excited for the relaxed restrictions and some are rightfully hesitant to assume things are “back to normal”. But what exactly does Phase 3 mean for condominiums across the province?
Continue Reading Welcome to Stage 3, Toronto: What this means for your condominium
The Condo Act and a condominium’s governing documents generally give a condo broad enforcement powers to ensure residents are abiding by the rules. Condos often turn to their lawyers to commence expensive legal proceedings as a reliable response to non-compliant residents. In assessing costs against a condo, a recent Superior Court of Justice decision should serve as a reminder to all condos that they should take reasonable steps to resolve disputes.
Continue Reading Always Act Reasonably – the Amlani Decision and a Lesson from the Court
The City of Toronto recently hired over 300 new fire inspectors, pledging to inspect every high-rise building in the city
at least once a year. The Fire Code adopts a broad definition of “owner”, and, as a result, the city may lay Fire Code charges against unit owners, condo corporations, property managers, management firms and directors for the same infraction. However, there are a few precautionary steps condos can take to minimize exposure to a pesky Inspection Order or Notice of Violation.
Continue Reading Flame-shifting – Extinguishing Fire Code Violations
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.
Continue Reading CAT’s out of the bag: The Tribunal’s first year