It is well known that condominiums owe a duty to accommodate persons with disabilities.  It is less clear, however, what constitutes adequate proof of a disability. Ambiguous medical notes containing no meaningful details are often the only documentation given to condo boards and managers, who must decide whether the legal threshold for disability is met.

Thankfully, the Ontario Human Rights Commission recently clarified this issue.  On February 1, 2017, it released a new policy statement on medical documentation to be provided when disability-related accommodation requests are made. Continue Reading Accommodating disabilities: What medical evidence is required?

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.

Continue Reading Top 10 condo law cases of 2016

This year marked the 20th anniversary of the annual ACMO/CCI-Toronto Condominium Conference.  Taking place from November 11-12, 2016, the theme of this year’s conference was “Shaping the Future”.

With the regulations under the amended Condo Act expected to be rolled out in the coming year, the condo industry has reached a pivotal juncture in its evolution.  The education sessions offered at the conference focused on fundamental changes that will shape the condo world over the next several years, with topics such as the use of technology in condo living and condo dispute resolution taking front stage.  It is vitally important to keep abreast of industry developments, and part of that entails learning as much as you can from industry leaders and experts.

Here are some of the key takeaways from the conference education sessions I attended this year.  I have broken down each session into subsections based on the nature of the topics discussed.

Continue Reading Key takeaways from the 20th annual condo conference

We used to regularly post blog entries featuring our most recent Condo Alert! newsletters but lost track a couple years ago.

This is an unforgivable oversight and we apologize to our faithful readers and especially to our associate Andrea Lusk, who has cranked out our newsletter for the past 8 years.  Condo Alert! is a visually appealing, high-quality newsletter that has become an “essential reading” item distributed in hardcopy at condo manager luncheons and educational conferences throughout Southern Ontario since 2008.

In response to popular demand, here’s a listing of our previously-unreported back-issues, with links to pdf versions for easy download.  Continue Reading GMA Condo Alert! catchup for 2013-2016

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. Continue Reading Fall 2016 law reform update

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.   Continue Reading Oppression remedy cases – 2015 in review

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. Continue Reading Ignoring bullying and harassment not an option for condo boards

As if there was any doubt, Canada Revenue Agency has been closely watching condominium corporations and other non-profit entities to see how much money is potentially escaping taxation.

This undertaking has a big name and big acronym: Non-Profit Organization Risk Identification Project (“NPORIP”).

Through an access to information request filed 2 years ago, charity lawyer Mark Blumberg recently received the NPORIP findings in the form of CRA reports outlining the estimated dollar amounts that non-charity non-profit organizations (including condominiums) are earning. The reports also estimate the rate that those entities were non-compliant with tax laws, particularly the non-profit exemptions under s.149(1)(1) of the Income Tax Act.

The first instalment of those CRA reports is available for viewing on Blumbergs’ Canadian Charity Law blog. Watch for updates.

This initial excerpt provides a good introduction to the NPORIP and the potential value of money earned by condominium corporations but, like most access to information material, it is substantially redacted.

This first report and the materials yet to come may provide valuable insight into what the future may hold. Now that CRA has an idea of the scale of the potential tax revenues to be had and the rate of non-compliance, it’s safe to assume that legislative changes, heightened surveillance and stepped-up enforcement will eventually follow.

The Ontario government recently introduced Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015.  This bill follows the government’s March 2015 action plan to reduce sexual violence and harassment.

Bill 132 is an omnibus bill that, if passed, amends six Ontario statutes with respect to sexual violence, sexual harassment, domestic violence and related matters.

Bill 132’s proposed amendments to the Occupational Health and Safety Act (“OHSA”) are of particular importance to condominium corporations as employers.  The provisions define “workplace sexual harassment,” broaden the definition of “workplace harassment” to include workplace sexual harassment and impose additional obligations on employers regarding workplace harassment policies, programs and investigations.

Proposed Amendments to the OHSA

Bill 132 proposes the following amendments to the OHSA:

  • Defining “workplace sexual harassment” to mean engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, whether the course of comment or conduct is known or ought to be known to be unwelcome, or making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.
  • Adding workplace sexual harassment to the definition of workplace harassment.
  • Clarifying that reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
  • Requiring employers to enact workplace harassment policies and programs that include:
    • measures and procedures for reporting workplace harassment incidents to third-party persons where the employer or supervisor is the alleged harasser;
    • set out how workplace harassment incidents or complaints will be investigated and dealt with; set out how information obtained about a workplace harassment incident or complaint will be kept confidential unless disclosure is necessary for the purposes of investigating or taking corrective action or is otherwise required by law; and
    • set out how the parties to the workplace harassment incident or complaint will be informed of the results of the investigation or of any corrective action.
  • Requiring employers to ensure that an investigation is conducted for workplace harassment incidents and complaints; the parties to the workplace harassment incident or complaint are informed in writing of the results of any investigation or of any corrective action; and that workplace harassment policies and programs are reviewed as often as necessary, but at least annually.
  • Conferring authority on a Ministry of Labour inspector to order an employer to cause an investigation of workplace harassment to be conducted by a third-party person.

Impact on Condominium Corporations as Employers

As employers, condominium corporations will need to update their existing mandatory workplace harassment policies and programs to accord with Bill 132’s proposed changes to the OHSA.   For condominiums that did not enact Workplace Violence and Harassment policies in response to Bill 168 (which became law in 2010), the time to address both bills is soon upon us.

Condo corporations should be aware that the proposed OHSA amendments concern both “incidents” and “complaints” of workplace harassment.  This specificity speaks to the level of diligence that must be exercised in addressing workplace harassment.

The bill also crosses between work life and private life of employees.  For example, condo managers and boards that become aware of workplace harassment (e.g. a super harassing an owner) must seek resolution even if a complaint is not registered.  This harkens back to Bill 168 (enacted in 2010) which created the uncomfortable obligation for employers to potentially intervene in private domestic disputes between live-in employees (superintendents) and spouses or partners.   This uncomfortable trend continues and the complexity deepens.

All employers will need to train internal investigators how to conduct investigations, commission reports, and communicate with the parties to a workplace harassment incident or complaint.

As of March 1, 2016, Bill 132 was ordered for Third Reading in the Legislative Assembly of Ontario.  If passed, the provisions of Bill 132 concerning the OHSA will come into force on the later of six months after the day the legislation receives Royal Assent and July 1, 2016.

Gardiner Miller Arnold LLP’s precedent Workplace Violence and Harassment Policy to address Bill 168 from 2010 already contains the necessary components to address Bill 132’s required updates, and our lawyers would be pleased to help condo boards and managers adopt and implement this policy in your community.

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: Continue Reading 2015 round-up of court and tribunal decisions