In the seven weeks since our last microblog posting, there has been a whole bunch of condo-related court decisions and interesting news stories for us to tweet about.   Given the large number of items, we’ll break them into two segments.

In this first installment, we will highlight the Court and Tribunal Decisions and also the Commentary and Cool Stuff.  

COURT AND TRIBUNAL DECISIONS

An interesting trend emerges from several of the cases mentioned below.  Judges appear to be closely scrutinizing the steps taken by condo corporations in enforcement cases and rapping the boards’ knuckles where the enforcement is not conducted reasonably.  This is welcome news and is likely in response to the rash of nightmare scenarios in recent months where condo boards or their lawyers over-litigate enforcement cases and use David and Goliath techniques against owners. 

Condo boards that choose not to approach rule enforcement cases in a conciliatory manner are doing their owners a disservice and are needlessly risking a reduced costs recovery or, worse, an adverse costs award.  One condo board was smacked with a personal costs award against its directors for wilfully breaching a settlement made with unit owners.

A couple practical lessons that immediately come to mind include:  

First:  Managers should write more letters to owners before rule enforcement cases go to the lawyers and managers should document the efforts they made to attempt to resolve the matter in-house before escalating the enforcement.

Second: Informal meetings, negotiation and mediation should be offered or attempted prior to commencing litigation in almost any enforcement case, and counsel for all parties should be constantly exploring the possibility of settlement throughout the piece.

Here are the cases.  Watch for the trends and, above all, enjoy!

Continue Reading Microblog posts to 3/13/2012 – Part 1: Cases and Commentary

Ontario’s Minister of Consumer Services, the Hon. Margarett Best, was a guest speaker last week at the real estate section of the Ontario Bar Association’s annual Institute.  She spoke on the topic of "Do we need a new Condominium Act?"

The topic is timely, even though our Condo Act celebrated its 10th year in force just last year. Several parties have indicated displeasure with various aspects of the Act for some time and a lot has changed in 10 years.

Naturally, representatives of the real estate and condo law bars attended this special event, as did stakeholders like the Canadian Condominium Institute (represented by legislative commitee chair Armand Conant) and Association of Condominium Managers of Ontario (represented by President Dean McCabe).  See photo of the principal ringleaders, at bottom.

Like many conferences these days, the OBA Institute featured some live tweeting from participants in the sessions.   Here’s a recap of some of the best tweets of the Minister’s address.

Continue Reading Recap of live tweeting from Minister Best’s address to OBA Institute

Since the landmark case of Jones v. Tsige was released on January 18, 2012, the legal press and blogosphere have been buzzing about the newly developed tort of “intrusion upon seclusion.” The case represents a major development in privacy law and provides people whose privacy has been breached with a new way to seek redress.

Since this case will have practical implications for condominium corporations, it was a pleasure for me to report on this case to a whole roomful of condominium managers just two days after it was released.

These are my speaking notes for the talk I gave at a legal grab bag luncheon for the Association of Condominium Managers of Ontario on January 20, 2012. ACMO members can soon watch the video of the entire luncheon presentation online (login required).

Enjoy.

Continue Reading New name, bigger teeth for invasion of privacy

As the world learns more of the gut-wrenching details of the Costa Concordia disaster and the utter recklessness and stupidity shown by the ship’s captain, a similar story has emerged here at home which should concern any person living in an apartment or condominium building.

The Costa Concordia’s captain will live in infamy not only for the daredevil stunt which caused the ship to hit a reef, but also for his decision to delay the evacuation order and advise passengers that the catastrophic damage to the ship’s engine and power plant was a trifling electrical problem that was under control. Evacuation did not begin until over an hour later, when the ship was already sinking and in much more serious trouble. This made evacuation far more dangerous and some people could not escape safely or at all. At least 17 people died, 17 are still missing and many more were injured.

On January 19, six days after the Costa Concordia ran aground, a fire broke out in an Edmonton condo building. It took 70 firefighters 15 hours to contain the blaze, which completely destroyed 50 of 82 suites. Damages are estimated to exceed $13 million. Luckily, there were no injuries but almost 100 people were left homeless.

Continue Reading Stupidity compromises safety — 2 cases in point

Anyone involved with condominiums or condo-related associations likely attends a healthy number of meetings of various sorts. With each meeting comes a set of minutes to memorialize what transpired and was accomplished at the meeting. The minutes are customarily approved at a subsequent meeting.

At a recent meeting of one of my committees, I made a motion to approve the minutes of an earlier meeting.  A fellow committee member then asked whether it was proper for me to make that motion given that I was not present at that earlier meeting.

For the answer, we turn to the Frequently Asked Questions section at Parliamentary Procedure Online, which is the companion website to Robert’s Rules Online.  FAQ #30 provides:

Q:  Can a member vote on or second a motion to approve the minutes of a meeting that he did not attend?

A:  Yes, absolutely! There is no requirement in Robert’s Rules of Order that a member have first-hand knowledge of something before voting on minutes or other motions. In fact, a motion need not be made regarding the approval of the minutes. The chair says, "Are there any corrections to the minutes?" Members may offer corrections, and when there are no further corrections forthcoming, the chair says, "If there are no further corrections to the minutes, they stand approved as corrected… the next item of business is…" or if no corrections are offered, "If there are no corrections to the minutes, they stand approved as read… the next item of business is…" Note that there is no second involved in this process. For more information, refer to RONR (10th ed.), pp. 343-344.
 

Of course, this answer assumes that Robert’s Rules are the accepted rules of the organization and there are no statutory or by-law provisions that apply or take precedence.

While it is not necessary to have attended the meeting at issue or even to have read the minutes before approving them, it certainly makes good sense to check that the draft minutes appear to be in order before approving them.

A hat tip to my observant friend and fellow committee member, John Damaren of Malvern Condominium Property Management, for posing the question and calling me out on my absenteeism!

Got any other questions about meeting procedures?  Send them in and we’ll try our best to give a good answer.

CBC Radio interviewed me as part of a news story about a unit owner wishing to charge his electric vehicle at his Ottawa high-rise condominium.  

I had written about the emerging debate on electric vehicle charging in condo garages last year. It seems that more cases of owners wishing to charge electric vehicles in their buildings are emerging and that condo boards are scrambling to respond. Unfortunately, there appears to be a disconnect between owners and condo boards, with the result that these cases get off on the wrong foot, with confrontation rather than effective communication.

Continue Reading Electric vehicle charging debate moves to Ottawa

Our first microblog post of the year is jam-packed with good stuff, including plenty of pieces on the frenzy that is the Toronto condo market.  While we can’t yet tell if 2012 will signal the end of the upward swing, it will definitely be one hell of a ride.

COURT AND TRIBUNAL DECISIONS

ONSC: No discrimination in condo refusing owner’s request to alter parking space to accommodate undocumented disability. http://bit.ly/sVLjyW

ONSC gives useful guidance on materials needed to approve reports & accounts of condo administrators and their lawyers. http://bit.ly/sFTQnY

ONSC: Unit owner improperly altered common elements, must sign s.98 agreement; condo’s chargeback claim statute-barred. http://bit.ly/vAbfeR

ONSC amends condo declaration to correct as an "error" a sneaky move by the developer to escape zoning restrictions. http://bit.ly/w0Auz6

HRTO denies unit owner’s bid to adjourn hearing, allow more time to resolve his complaint vs. condo. http://bit.ly/zlpx0x

HRTO: Hearing to continue despite unit owner’s procedural wrangling after sensing that his case is doomed. http://bit.ly/wSnOVa

HRTO: Disabled unit owner’s complaint vs condo dismissed for duplicating a poorly-drafted court claim. http://bit.ly/zRsXbi

ONSC waives med/arb reqmt, rejects selective enforcement argument, orders removal of dogs from condo unit. http://bit.ly/yPyfPO

ONSC: Condo’s construction deficiency lawsuit (commenced 3 yrs after performance audit issued) is statute-barred. http://bit.ly/yaBa4p

BCSC orders sale of strata unit after years of antisocial behaviour by owner’s son. 1st time in BC. http://bit.ly/vZP5ry

ONSC upholds condo turnover election. Declarant was tardy and failed to deliver turnover docs. http://bit.ly/AExTGf

Continue Reading Microblog posts to 1/20/2012

As one of our annual traditions, it is time to unveil our picks for the top 10 cases of the year gone by.  2011 brought us a bumper crop of condo-related cases by Ontario courts and tribunals, with almost 50 reported decisions cited in the @ChrisJaglowitz Twitter feed and frequently summarized in our microblog entries.

Here are our selections:

#10 — York Region Condominium Corporation No. 890 v. RPS Resource Property Services, 2010 ONSC 3371

News of several condo frauds broke in 2011 but there was only one reported court decision on the topic, for a fraud between 2003 and 2005.  The management firm here “borrowed” money from one condo to finance its own operations and those of its other condo clients and then repaid the money before year-end so as to avoid detection by the condo’s auditors.   The plot unravelled when the condo changed managers and the fraudster was short $370,000 at year-end.  The management firm and its principal were liable for breach of contract, breach of trust and conversion and were ordered to repay the $370,000.  The condo’s claim against its bank was dismissed.  We commented on this case and listed a number of takeaway points.

#9 — York Condominium Corporation No. 26 v. Ramadani, 2011 ONSC 6726

The court granted a compliance order requiring the removal of a dog accused of peeing on a balcony.  Despite the owner’s arguments, the condo was found to have acted reasonably in demanding the dog’s removal.    Condominium boards and managers must act reasonably in enforcing condo rules and what is “reasonable” will be decided on a case by case basis, but courts will not substitute their own opinion for that of the board or manager.   Justice Strathy gives a good overview of the current law related to condo rule enforcement and his decision stands for the proposition that unit owners who think that a condominium must prove an owner’s wrongdoing beyond a reasonable doubt before taking steps against them are just fooling themselves and needlessly risking their financial security.  The case also confirms that the court has a broad discretion in fashioning an appropriate remedy which minimally affects the unit owner but which effectively solves the problem.

Continue Reading Top 10 condo law cases of 2011

As another year-end draws closer, it’s time to submit nominations for the annual Canadian Law Blog Awards.  The “Clawbies” recognize the work of Canadian legal professionals who share their insight and expertise through a blog. 

Details about the awards, the nomination process and previous winners can be found here. You can also keep track of this year’s nominations by searching #Clawbies2011 on Twitter.

Here are my three nominations for the 2011 Clawbies, in no particular order:

Continue Reading My nominations for 2011 Clawbies

Toronto’s reputation as an international city and condominium capital knows no bounds.

The National Post reports that a Toronto condo unit owned by the son of the late Libyan despot Muammar Gaddafi has apparently gone unnoticed by whoever enforces UN-imposed sanctions in our country.   Ownership of the $1.6 million penthouse at 10 Navy Wharf was held in Gaddafi Junior’s own name or some variation thereof.  

The Post’s exposée on the Gaddafi penthouse is here:

Saadi Gaddafi owns a $1.6M penthouse in Toronto

Ottawa asks RCMP to investigate Gaddafi son’s Toronto condo

Libya lays claim to Gaddafi’s condo

The latest news is that the new Libyan regime is looking to claim the unit as an asset of the state.   If that bid is granted, hopefully the condo board will send the Libyan embassy a copy of the building’s by-laws, rules and elevator booking policy before a problem arises and turns into an international incident.

In possibly-related international news involving Canada and Libya, there is no indication that Cynthia Vanier, the Canadian citizen implicated by Mexican authorities in the plot to help the Gaddafi family flee to Punta Mita, planned to use the Toronto condo as a safe house at any point.  Mexican investigators will no doubt look long and hard at this growing Canadian connection in deciding whether to stage some elaborate “prosecution.”  Vanier’s family says she is innocent.

And before leaving the topic of playboy sons of dead tyrants, has someone checked the land registry records for condo units owned by Kim Jong-un? If not, local condo managers might keep watch for any raucous wakes held in their party rooms for the late North Korean strongman Kim Jong-il. Just report your findings to the nearest UN office.