Approximately two months have passed since the CAT’s jurisdiction expanded beyond condo record requests to include disputes regarding, pets, parking, vehicles and storage and chargebacks related to such issues. However, the CAT has yet to release a decision dealing with these new topics. It may take some time for cases involving expanded jurisdiction issues to wind through the CAT’s online dispute resolution system. In the meanwhile, enjoy Part 2 of our deep dive into record disputes (Part 1, here).
There are limited circumstances where directors of condominium corporations can be personally liable for oppressive conduct under Condominium Act, 1998.
In a recent Ontario Superior Court of Justice decision, the declarant (also a unit owner at a vacant land condominium corporation) sued the condominium corporation and the individual directors. The allegations of oppressive conduct by the condo and directors included exaggerating construction deficiencies and not repairing them at the same time, implementing rules that impeded the declarant’s ability to rent units and adding these issues to status certificates (among other allegations). The condo corporation brought a motion to throw out the claim against the individual directors under the rules of the court.
The court threw out the claim against the individual directors because:
- the declarant did not provide sufficient particulars as to what each individual director is alleged to have done, as differentiated from the condo corporation’s alleged conduct; and
- the alleged conduct of the individual directors did not result in any personal benefit or increase their control in any way; and
- there was no reasonable basis in the claim for the court to decide whether the alleged oppression could be rectified by a monetary order against the directors personally.
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.
Check out our latest issue of our newsletter Condo Alert! – V8.I4 Autumn 2020 – for case commentary on:
- upholding COVID policies
- CAT summaries
- oppression applications
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.
I love hearing from all of you after our posts!
Even your messages of bewilderment and concern about yesterday’s disappearing blog post.
Thanks for all your notes and thanks for reading! More from us soon!
The City of Toronto has recently announced that the registration system for short-term rental operators or hosts will launch on September 10, 2020. Homeowners who rent their principal home or condo on a short-term basis (a period of less than 28 consecutive days) must register with the City by the end of year and renew annually.
In addition to registering and paying the annual fee of $50/year, operators must post the City-issued short-term registration number on all advertisements and listings, provide safety information to guests and collect and remit 4% Municipal Accommodation Tax on all short-term rentals. Violators may be convicted of an offence and fined up to $100,000 and up to $10,000/day for each day the offence continues. Short-term rental companies also must register and follow the City’s regulations.
Operators should note that registration with the City doesn’t authorize an operator to short-term rent in a condo that prohibits such rentals. Condominiums may impose stricter rules and prohibitions on short-term rentals. At all times, owners and residents of condo units must follow the condominium’s declaration, by-laws and rules.
What this registration system does provide is operator accountability in addition to the rule enforcement system under the Condo Act. For example, condos can soon check advertisements and listings for a City-issued short-term registration number as a first step in its enforcement. Further, Toronto residents can contact 311 to report issues related to short-term rentals, such as noise and concerns that people are renting homes that are not their principal residence.
Many condos struggle with regulating short-term rentals and the negative impacts on their communities. This mandatory registration system will hopefully aid those condos in enforcing rogue operators who often adopt different aliases to escape detection and continue to skirt the rules.
As of August 15, 2020, gyms and recreation spaces are allowed up to 50 patrons for each indoor sport or fitness room, with physical distancing of at least two meters.
Now that Ontario has eased gym restrictions, condominium corporations should review their amenities reopening protocol, which might include a requirement that users sign a waiver of liability before being allowed access.
But are waivers enforceable?
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:
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.
GMA is pleased to provide its comprehensive COVID-19 Protective Measures Policy which incorporates the mandatory mask provisions as well as other recommended provisions to mitigate the transmission of COVID-19. And even if your condo isn’t in Toronto, you can still implement this policy to promote best practices and prevent the spread of COVID-19 in your condo!