The Great Eastern Ontario Condo Quiz

Take part in the Great Eastern Ontario Condo Quiz – A contest made for Eastern Ontario’s condominium communities to celebrate the fall season!

You could win free legal services from Nelligan O’Brien Payne’s Condominium Law Group (see details below).

The contest will run for four weeks in October, on Condo Law News, a blog published by the Nelligan O’Brien Payne LLP Condominium Law Group*. Visit the blog at: www.condolawnews.ca.

A quiz question will be included in our weekly blog posts from October 3rd to October 31st 2013, which will be based on the previous week’s blog post. You will have one week from the date of posting of the quiz question to submit your answer through our online form. Each correct answer submitted before the deadline gives you one entry in a draw. The winner will be chosen at random from the entries submitted over the four weeks, and will be required to answer a skill testing question.

The contest winner will win $500.00 CAD in legal services from the Condominium Law Group at Nelligan O’Brien Payne LLP, and a Nelligan O’Brien Payne merchandise prize package. The winner will be announced in our November 7th blog post.

Week One Question: CLOSED

Week Two Question: CLOSED

Week Three Question: CLOSED

Week Four Question: CLOSED

Please share this message with your condominium boards, managers and residents! The more entries received, the better chance you have of winning!

Privacy in Condominiums

Some special considerations apply to privacy issues in the condominium setting.

The basic concept in law is that privacy rights apply whenever there is a “reasonable expectation of privacy”. Recently, the Ontario Court of Appeal has recognized a tort of “intrusion upon seclusion”, which is essentially the tort of violation of privacy rights (see Jones v. Tsige, 2012 ONCA 32).

So privacy rights are now clearly recognized by our courts, but how do these rights apply in a condominium setting? The key question is: what are an owner’s reasonable expectations of privacy?

The answer will depend to a certain extent on the nature of the condominium community (highrise, townhomes, etc.), as well as the condominium’s governing documents (including the Condominium Act, and the corporation’s Declaration, Description, By-laws and Rules). In other words, an owner’s privacy rights may vary from condominium to condominium.

In each case however, condominium owners and residents will have certain rights of privacy in relation to:

  • their personal information;
  • their personal property;
  • the use and enjoyment of their unit; and
  • the use and enjoyment of the common elements.

But the key is that there will be limits on these privacy rights because of the sharing and co-operation that comes with condominium living. For instance:

a. Rights of Entry: Condominium corporations have general rights to enter the units and exclusive-use common elements, on reasonable notice, in order to perform the corporation’s objects and duties. So condominium owners and residents do not have complete privacy in their homes.

b. Surveillance: Condominium corporations have rights to arrange for surveillance of the common elements, again in order to perform the corporation’s objects and duties. Note however that, subject to some exceptions, the surveillance must be disclosed (to persons attending on the property) and must be confined to locations where there is no reasonable expectation of privacy.

c. Records: As part of their record-keeping responsibilities, condominium corporations collect personal information related to owners and occupants. All condominium owners have rights to inspect the records of the corporation. However, these inspection rights do not apply to certain types of records, including records relating specifically to other owners or to other units. Still, this right of privacy in relation to an owner’s “personal records” may become blurred if the personal information is part of a record that has general or common application to all owners or to the corporation as a whole.

Small Claims Court Dismisses Claim for Disclosure of Draft Minutes

A unit owner recently brought a condominium corporation to court for the alleged failure of the corporation to disclose records of the corporation pursuant to section 55 of the Condominium Act in Stewart v. Toronto Standard Condominium Corporation No. 1591. In particular, the owner claimed (under section 55) for the following:

  • Production of the minute-taker’s personal notes from the corporation’s AGM;
  • That the AGM minutes were inaccurate and the minute-taker’s draft minutes had been improperly revised by the Board;
  • A penalty of $500.

After a full trial on the matter, the claim was dismissed by the Court. The Court said that “the notes of the note-taker are a work-product and not a record” for the purposes of Section 55. The Court also said that the term “records” does not include “drafts, work in progress, rough copies, et cetera”.

The Court also said that the Board’s minor adjustments to the draft minutes were not improper. The Court added the following; “the minutes are intended to be an accurate summary of the events that took place not a verbatim transcript.”

This case confirms that documents that are considered to be in draft form, or that are otherwise a “work in progress”, do not constitute “records” of the Corporation within the meaning of section 55 of the Act. This would appear to suggest that only once a document is in “final” form does it constitute a “record” of the Corporation. This being said, in our view, it is nonetheless possible that some types of “draft” documents (such as draft reserve fund studies) might be considered to be records of the Corporation. This however, would depend upon the situation.

The Court in this case also took issue with the fact that, “it also became evident that being critical and looking for ways to find the board to be negligent has become a sport for (the owner)”. The Court said that the plaintiff’s requests amounted, in this case, to a “pure fishing expedition, without evidence to support his suspicion of impropriety by the members of the board of revising, to their benefit, the minutes that were taken at the annual general meeting held on June 22nd, 2011”.

The Court awarded costs to the condominium corporation that were higher than the normal costs permitted in Small Claims Court. The Court took particular issue with the plaintiff’s behavior and conduct towards the condominium corporation in the context of the claim and otherwise, and found the following:

“They have the luxury of time to do nothing but find ways to criticize the actions of the board. You know what, instead of criticizing I would have had more respect for the plaintiff if he had taken the initiative and perhaps had become a board member, or come up with solutions on how to better run the board than to stand on the sidelines and do nothing but criticize. So given that, I am going to use my discretion to impose a higher amount than is typically awarded because I do not want this behavior to continue… I think it does interfere with the functioning and the proper running of the board….”

The Court clearly decided to send a message to the plaintiff that further unfounded and unsupported allegations against the board would not be tolerated by the court.

Educating Condominium Directors

It becomes apparent when the regular insurance replacement cost valuation is completed that condominium complexes are multi million dollar assets. As well, quite often condominium budgets are in the many hundreds of thousands of dollars. Being a director of such an enterprise is not for the faint of heart.

Having said this, being a condominium director is a rewarding experience. Taking on this role however, without understanding what is involved, and what liability can occur is a mistake. A person who wishes to become, or has been elected as a director should have an understanding of the Condominium Act, 1998 (the “Act”), their own condominium documentation and best practices of how their condominium corporation should operate.

The easiest way to reach this threshold is through education. Becoming a member of the Canadian Condominium Institute (CCI) is one such avenue. Once you are a member of CCI, you will have access to many articles and newsletters written by both condominium professionals as well as condominium directors through the CCI website. As well, the CCI Ottawa Chapter offers a two-day weekend Directors course twice a year (November and April) at the Nepean Sportsplex. The course covers such topics as an Overview of the Act; Reserve Fund Studies; Insurance; Accounting; Management; and Enforcement. This is in addition to the programs offered by CCI Ottawa throughout the year. CCI Ottawa can be contacted at www.cci.ca/ottawa.

Majority Vote

Many condominium decisions can be made by the Board alone. But some decisions require owner involvement. When owner involvement is required, the Condominium Act indicates what sort of owner involvement is necessary.

For example, a by-law requires a particular kind of “majority vote”. Section 56(10) of the Act says that a by-law must be confirmed by a vote with the owners of a majority of all units voting in favour of the by-law.

But if the Condominium Act doesn’t say otherwise, when a decision requires owner involvement, an “ordinary vote” is required. This is governed by Section 53 of the Act, which states:

53. Unless otherwise provided in this Act, all questions proposed for the consideration of the owners at a meeting of owners shall be determined by a majority of the votes cast by owners present at the meeting in person or by proxy if there is a quorum at the meeting.

So, an “ordinary vote” is a majority of the votes cast, provided there is a quorum. As an example, suppose at a meeting of owners fifty units are represented either in person or by proxy and this is sufficient for a quorum. Suppose there is a motion requiring an ordinary vote (such as re-appointment of the auditor). Suppose the vote is called and the results are as follows: there are two votes in favour; there is one vote opposed; and all other voters (forty-seven) abstain from voting. Under this scenario, the motion is “carried”, two votes to one (ie. a majority of the votes cast).