Do not miss two great October events hosted by the Canadian Condominium Institute!

The Canadian Condominium Institute (CCI) is hosting their Annual General Meeting and Seminar on October 15th, and the Directors’ Course in Kingston on October 17th.

Space is limited for both events – register now!

Annual General Meeting & Seminar:

  • October 15, 2015
  • Hellenic Community Centre (1315 Prince of Wales Drive)
  • 6:30 PM
  • Members are encouraged to join us at the 2015 AGM to learn more about the exciting initiatives that the CCI-Ottawa Chapter has undertaken during the past year, and projections for the upcoming year. The election for 2015/16 Board of Directors also takes place at the AGM.
  • Our very own Nancy Houle is on the panel at this event – a not-to-be-missed opportunity!

To view event details or to register for this event, please click here to visit the CCI Ottawa website.

Condominium Corporation Too Slow in Attempting to Resolve Noise Problem

In the recent Court decision Wu v. Peel Condominium Corporation No. 245, a condominium corporation was found liable for oppression, on the grounds that it had failed to act with sufficient haste to address an owner’s complaints about noise from the elevators.

Ms. Wu bought a one-bedroom unit on the top floor of a 24-floor building in Toronto in 2008. The unit was adjacent to the building’s mechanical, elevator and HVAC equipment, which serviced the entire building. Approximately 6 months after she moved in, Ms. Wu first experienced noise and vibrations in her unit. She claimed that the noise sounded like a motorcycle or helicopter. Ms. Wu’s complaints to the condominium’s manager were many, varied and continuous from 2008 to 2014. The manager and the condominium board both agreed that the noise/vibration problem existed, although not as dramatically as Ms. Wu stated.

Beginning in 2009, the condominium hired consultants to investigate and recommend methods to resolve the problem. Some attempts were made to resolve the noise and vibration, but to no avail. In 2012, the condominium advised Ms. Wu that the condominium had “done as much as it could do” to solve the problem.

In 2013, Ms. Wu retained legal counsel and, following mediation, the condominium agreed to fix the problem. Although the condominium retained further consultants, the corporation failed to carry out any of the suggested actions to resolve the issue.

In 2014, Ms. Wu then commenced an action against the condominium for oppression and damages. She was successful. The Court held that while the condominium had attempted to address the noise and vibration problem from 2009 to 2011, it then stopped and took no further positive steps until shortly before the Court hearing. During this entire period, the problem continued. The Court held that this was oppressive to Ms. Wu.

The Court ordered that the condominium corporation continue to try to fix the problem using the recommendations provided by its consultants in 2014, prior to the Court hearing. The Court ordered that the condominium must appear before the same judge within 45 days to advise what could be done to attempt to resolve the problem. The Court also ordered that the corporation pay to Ms. Wu $30,000 in damages due to its oppression, as well as $20,000 towards Ms. Wu’s legal costs.

The message here is that a condominium corporation must take reasonable steps to address and deal with complaints from owners about common element problems. Anything less may result in a finding of oppression, and an award of damages, against the corporation.  

Concerns re. Proposed Condo Act Amendments – Concern #8

As mentioned in previous posts, Bill 106: Protecting Condominium Owners Act was introduced in the Ontario Legislature on May 27, and the full text of the bill is now available here. If passed, this bill will make crucial changes to the administration and operation of condominiums, which will affect both condo corporations and owners across Ontario.

Many of the proposed Amendments to the Condominium Act, 1998 (“the Act”) look very good to me. However, I do have some concerns. This is my blog post on Concern #8.

Concern #8 – The Resident-Elected Director

Currently, Section 51(6) of the Act calls for one of the Directors to be elected by the resident owners, in certain circumstances. The “Resident-Elected Director” was introduced in 2001 in order to prevent one majority owner (usually the declarant) from electing all of the directors. But I think it’s generally accepted that, in most cases, the provision has not served the intended purpose.

Under the proposed amendments, this provision would be retained (and renamed the “Non-Leased Voting Units” Directorship), but it would apply under different circumstances. In particular, it would apply if:

(a) Less than half of the units in the condominium are “non-leased voting units”; and
(b) One of the owners of the non-leased voting units has requested that there be an election to fill a position on the board reserved for voting by owners of non-leased voting units.

So, in summary, the amendments would retain this concept, but only in circumstances where the “non-leased voting units” are in the minority.

I’m concerned that this proposed amendment still won’t achieve the desired purpose, particularly because a majority owner could still have control of the Board in any event.

However, there is another possibility.

The general rule is that each owner has one vote per unit. However, for purposes of election or removal of directors, the total vote of an owner (and all persons and corporations affiliated with the owner) could perhaps be limited to a maximum of 10% of the total number of units.

Condominium Act Reform: Ontario’s new condo legislation “Bill 106” is moving forward

The fall legislative session at Queen's Park resumed on Monday, September 14, 2015. Bill 106: Protecting Condominium Owners Act is on the legislative agenda as one of the key government bills this session, and was introduced for a second reading on Tuesday, September 15, 2015.

This is a signal that the proposed legislation is a priority for the Legislature and is proceeding towards becoming law. The bill has had significant support from all sides. Although legislative protocol typically requires the bill to be debated for a minimum of ten hours before passage, it is expected to pass in the upcoming weeks and then be referred for further discussions in Committee.

David Orazietti, Minister of Government and Consumer Services, introduced the bill in May, 2015. The legislation was drafted after an extensive three-stage public consultation process, with submissions from condominium owners, residents, developers, managers, and industry experts.

Minister Orazietti's hope in putting the bill forward is to better meet the needs of Ontario's growing condominium market and better regulate the condominium industry. The size and complexity of Ontario's condominium market has changed drastically since 2001, when the original legislation came into force. If passed, this bill will make crucial changes to the administration and operation of condominiums, which will affect both condominium corporations and owners across Ontario.

This is a key piece of consumer protection legislation governing the management of condominiums. For further information about the impacts of this bill, check out our recent blog posts from James Davidson.

The full text of the Bill 106 is available here.

Our readers in the condominium industry are welcome to contact our Condominium Law group to discuss the potential impact of this bill.

Canadian Condominium Institute Seminar: Meet the Experts – September 16, 2015

Our very own Nancy Houle will be a panelist at the upcoming “Meet the Experts” seminar hosted by the Canadian Condominium Institute – Ottawa Chapter.

This is a chance to access leading experts in the condo industry, and ask your questions in a relaxed environment. Panelists will be situated at tables throughout the room for participants to engage with.

Nancy is a partner at Nelligan O’Brien Payne LLP and the leader of our firm’s Condominium Law group. Her practice includes general corporate advice to condo corporations, financing and secured transactions, construction law, building deficiency litigation, and proceedings to resolve disputes between condo corporations and residents.

Don’t miss out on your chance to ask Nancy your legal-related condo questions. To reserve your spot, please click here to register.

This seminar will take place at 6:30pm on September 16, 2015, at the Hellenic Community Centre, 1315 Prince of Wales Drive, Ottawa, Ontario.

Concerns re. Proposed Condo Act Amendments – Concern #7

As mentioned in previous posts, Bill 106: Protecting Condominium Owners Act was introduced in the Ontario Legislature on May 27, and the full text of the bill is now available here. If passed, this bill will make crucial changes to the administration and operation of condominiums, which will affect both condo corporations and owners across Ontario.

Many of the proposed Amendments to the Condominium Act, 1998 (“the Act”) look very good to me. However, I do have some concerns. This is my blog post on Concern #7.

Concern #7 – Agreements respecting Common Element Modifications

Currently, Section 98 of the Act requires that for any permitted modification to the common elements made by an owner after May 5, 2001, there must be an agreement between the corporation and the owner, registered on title to the owner’s unit. This is in addition to other requirements contained in Section 98. These “Section 98 agreements” are binding upon all subsequent owners of the unit.

The proposed amendments would retain this requirement for “Section 98 agreements”, with some changes to the specific requirements.

In my view, this requirement for “Section 98 agreements” is a good idea, because it is important that the owner’s obligations in relation to the permitted modification be recorded on title to the unit, as clear notice to all subsequent owners of the unit. But here’s the problem: Section 98 agreements are not practical for many types of permitted modifications because of the cost to prepare and register the agreements. In many cases, owners and condominium corporations just won’t bother with preparation and registration of an agreement – because of the prohibitive cost.

In our view, the requirements of Section 98 can be legally satisfied by way of a “Section 98 by-law”; which is a much more practical alternative. And it would be helpful, to all Ontario condominium corporations and owners, if the amendments would specifically acknowledge this alternative.

Concerns re. Proposed Condo Act Amendments – Concern #6

As mentioned in previous posts, Bill 106: Protecting Condominium Owners Act was introduced in the Ontario Legislature on May 27, and the full text of the bill is now available here. If passed, this bill will make crucial changes to the administration and operation of condominiums, which will affect both condo corporations and owners across Ontario.

Many of the proposed Amendments to the Condominium Act, 1998 (“the Act”) look very good to me. However, I do have some concerns. This is my blog post on Concern #6.

Concern #6 – Record of Owners and Mortgagees

Currently, Section 47 of the Act obligates owners to provide to the corporation an address for service (if the owner wishes to receive notices from the corporation). And Section 47 of the Act also says that the owner must notify the corporation of all changes in the address for service.

The proposed amendments would add a new Section 46.1 respecting the Record of Owners and Mortgagees, to be maintained by the corporation. Under this proposed new section, it appears to me that there might not be any address for service (provided by an owner).

According to the proposed new Section 46.1, a notice to an owner could be sent by prepaid mail to the address for service noted in the Record “or that is required [by Section 46.1] to appear in that record”. I’m assuming that this “default address” is the address of the unit; but I don’t think this is clear in the proposed new Section 46.1.

Here’s my point: I think it’s important that there be a mechanism for delivery of notice to an owner by ordinary mail, and I’m not sure if this is clearly covered in the proposed amendments.