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

On December 3, 2015, the Protecting Condominium Owners Act, 2015 (known as Bill 106) received Royal Assent after being passed by the Ontario legislature.

This momentous occasion comes 3 years, 5 months and 25 days after the Ontario Government announced its plan to review the Condominium Act, 1998.

That review process spanned 18 months and received public input at information sessions across the province and thousands of written and online submissions. In addition, the review included a dedicated residents’ panel, five professional working groups on key topics, an expert panel to vet the working group recommendations and various technical teams, all to inform the ministry staff who drafted the legislation. Bill 106 was then introduced in the legislature in May 2015. Continue Reading Bill 106 becomes law, but changes not yet in force

The 19th annual ACMO/CCI Condominium Conference was held November 13-14, 2015 in Toronto.  Over 1,600 attendees (including condo owners, directors, property managers, lawyers and other industry members) took the opportunity to network, meet exhibitors for updates on the latest condo products and services, attend professional development sessions and learn from industry experts.

Over two days, the conference ran various breakout sessions on a wide array topics including proposed changes to Ontario’s Condominium Act (“the Act”), insurance, manager relations and governance and others that impact the more than 1.3 million condominium residents in Ontario.

Here are some of the key takeaways from the sessions I attended. Continue Reading Key takeaways from 19th annual condo conference

Now that the Standing Committee on Finance and Economic Affairs has concluded its public hearings and shifts to a line-by-line review of Bill 106 (of which Schedule 2 contains the proposed Condominium Management Services Act, 2015), we hasten to finish our review of the proposed CMSA.

As reported in a previous instalment, obtaining and holding a license is just the first hurdle for condo managers and management providers and is the first round of protection for condo corporations and unit owners.  The CMSA creates a number of new obligations that go a long way to addressing some of the long-standing complaints about condo managers and many common problems.  In this piece, we will summarize the major new obligations for licensees that this bill will create. Continue Reading Introducing the Condominium Management Services Act, 2015 — Part 7: New Obligations

Though most condo management firms carry on honourable businesses that well-serve their clients (often under the direct leadership of their top brass who are personally involved in the operations and take ownership of problems), some firms demonstrate little or no commitment to accountability and transparency, whether in their operations or their ownership structure.  The CMSA throws open the curtains by requiring condo management providers to disclose significant information about themselves, their backers and to put forth a specific individual with whom the buck stops.

Continue Reading Introducing the Condominium Management Services Act, 2015 — Part 6: Transparency and Accountability

In our last piece, we reviewed the threshold for being granted a license as a condo manager or management services provider.  Let’s now explore whether skirting those requirements is possible.

Can someone manage condominiums without a license?

Not legally. Section 34 of the CMSA prohibits unlicensed practice as a condo manager, as follows: Continue Reading Introducing the Condominium Management Services Act, 2015 — Part 5: Restricted Practice

Before continuing our exploration of the CMSA, we thank our friends at the Ministry for pointing out that we had misnamed the CMSA in our earlier pieces as Condominium Management Standards Act when the correct name is Condominium Management Services Act.   We have corrected the title and text of the earlier pieces accordingly.

In this fourth part of our review of the CMSA, we review the threshold for being granted a license as a condominium manager or a management services provider. Continue Reading Introducing the Condominium Management Services Act, 2015 — Part 4: Threshold

Having set the historical context in part 1 and part 2 of this series, we turn to Bill 106 and the scope of the proposed new CMSA.

What Bill 106 brings

Bill 106 (the Protecting Condominium Owners Act, 2015) was introduced in the Ontario legislature on May 27, 2015.  Schedule 2 of Bill 106 contains the proposed Condominium Management Services Standards Act, 2015 (let’s call it “CMSA”) which will be a completely separate statute from the Condominium Act, 1998.

For clarity, keep in mind that Schedule 1 of Bill 106 contains a myriad of amendments to the existing Condominium Act, 1998.  Because the existing Condo Act will retain its current name, it is technically incorrect to say that we are getting a “new Condo Act.”  Our existing Condo Act is merely getting a whole bunch of minor changes, and we will tackle some of those changes in subsequent pieces.

For now, let’s focus on the CMSA in more detail, beginning with what it covers. Continue Reading Introducing the Condominium Management Services Act, 2015 — Part 3: Scope

In this second instalment of our close examination of the proposed new Condominium Management Standards Services Act, 2015, we look at the steps taken by the condo managers themselves to improve standards, forming the genesis of a true self-regulated profession and paving the way for Bill 106 to take root.

Early steps to raise the bar

While condo owners and directors have called for improved standards during the Ontario government’s Condo Act review process since 2012, the loudest and longest call for educated, licensed and regulated condo managers has come from the condo managers themselves.  Their association has been leading by example. Continue Reading Introducing the Condominium Management Services Act, 2015 — Part 2: Early Steps