Week One Question: The Condo Law News: Change is in the Air Contest – 2016 Edition

Take part in the Condo Law News: Change is in the Air Contest – 2016 Edition! Enter to win five (5) tickets to our upcoming 2016 New Act Primer event, hosted by Nelligan O'Brien Payne’s Condo lawyers!*

*For full contest rules, including a description of the prize, please click here.

There will be four blog posts containing quiz questions in February/March. You will receive a ballot each time you answer a question correctly and then submit an eligible entry during the weekly contest period. For example, if you answer four questions correctly and submit eligible entries for each, you will receive four ballots. The winner will be drawn randomly and announced in a blog post on March 21, 2016. For more details on the contest, including how to enter, please click here.

The Official Week One Question is:

What change has Bill 106 made to a condominium corporation’s ability to gain access to a unit in the event of an emergency?

a) A corporation must give at least two hours’ notice before gaining entry to unit.

b) A corporation can only enter the unit without prior notice if there is a provision allowing for such in the declaration or in a by-law of the corporation.

c) A corporation can only enter a unit without prior notice if the emergency is a fire or water incident

d) It is mandatory for a condominium’s bylaws to include a clause granting the corporation access without prior notice in the event of an emergency

The question period is now over, thanks for playing!

Want an extra entry into the contest? Use the hashtag!

Simply tweet or post on Facebook about the contest using the hashtag #condolawnewscontest2016 and each user will gain one extra entry into the contest.

(If your Twitter username or Facebook name does not reflect the email address you are entering the contest with, please email us at nelligannews@nelligan.ca to ensure we award you the extra entry.)

No Smoking Bylaw Enforced by BC Court

The heated debate continues between the ‘rights’ of people to smoke in their own units versus the ‘rights’ of non-smokers to be free from experiencing second-hand smoke in a condominium. Condominium living and the law continues to swing the pendulum away from smoking being a personal choice in condominium homes, towards a community-driven desire to limit the effects of smoking on its residents and property.

In The Owners, Strata Plan NW 1815 v. Aradi, the Strata corporation passed a no smoking bylaw in 2009 and revised it in 2014. This bylaw prohibited smoking in many locations on the property, including inside suites and on patios and balconies.

The owner in question, a senior veteran who claimed to be a lifelong smoker, purchased his unit in 2002 before there was a smoking ban. In December 2013, the Strata corporation began to enforce the no smoking bylaw against the owner, by sending letters and levying fines, following complaints that his smoking was negatively affecting other residents. The owner did not challenge the validity of the bylaw in this case; rather, only its application to him.

The owner disputed the matter in writing to the Strata corporation on a few occasions, including taking the position that the bylaw was discriminatory, that the Board was trying to get him to move out, and that it did not apply to him because there was no prohibition against smoking when he moved to the complex. He didn’t deny smoking in the unit, although he disputed some of the complaints attributed to him. The owner also commenced a human rights complaint against the Strata corporation for discrimination on the basis of his addiction and mobility limitations. He asked the Court to defer a decision on this matter until after his human rights complaint was decided.

In the Court proceeding, the Strata corporation took various positions, including that second-hand smoke was a health risk to residents, that there was a fire risk associated with smoking in units, and that the smell of cigarettes would negatively affect use and enjoyment of the strata lots. The owner took the position that he smoked from time to time in his unit, with the windows closed to prevent the smell of smoke from bothering his neighbors, and that he was unable to go outside to smoke due to mobility issues. The Court reviewed the evidence of both sides to determine whether the owner had breached the no smoking bylaw and, if so, whether the Court should exercise its discretion and grant a cease and desist order against the owner.

The Court determined that the owner had repeatedly breached the no smoking bylaw. Then, in deciding whether to exercise the discretion afforded to it under s. 173 of the Strata Property Act and grant a cease and desist order, the Court commented that the exercise of its authority to do such should be guided by considering the objectives and scheme of the legislation, and the circumstances giving rise to the application. Specifically, that “the interests of the Strata corporation must be balanced against the interests of the owner or other person against who the order is sought”.

The Court did grant the cease and desist order and declared that the owner was in breach of the no smoking bylaw. In doing so it found that the Strata corporation:

  • Acted in good faith in seeking to enforce the bylaw; and
  • Had an interest in enforcing its bylaw and had only limited discretion to not require strict enforcement

The Court was also unwilling to wait for the owner’s human rights complaint to be decided. It did not have any report in respect of the owner’s addiction to cigarettes, and declining to make the order would have the effect of allowing the owner to continue to smoke in contravention of the bylaw, for an extended period of time.

To read about another case of smoking in a condominium unit, check out our previous blog post.

CCI Eastern Ontario Chapter’s ‘The ABCs of Tarion’ seminar!

This not-to-be-missed seminar is taking place on February 24th at the Hellenic Community Centre! Hosted by the CCI Eastern Ontario Chapter, this seminar will break down the mechanics of the claim process, and will assist you to better understand the warranties available under the Ontario New Home Warranties Plan Act, the Tarion claim process, and your role in that process. Our very own Christy Allen will also be a guest speaker at this event.

Space is limited and reservations are a must!

  • February 24, 2016
  • Hellenic Community Centre (1315 Prince of Wales Drive)
  • 6:30 PM – 9:00 PM
  • FREE for CCI Eastern Ontario Members

    • $50 + HST for non-members

To view the event agenda or to register for this event, click here.

Condo Law News: Change is in the Air Contest – 2016 Edition

Take part in the Condo Law News: Change is in the Air Contest – 2016 Edition! A contest made for Ontario’s condominium communities to celebrate the spring season!

Enter to win five (5) tickets to our upcoming 2016 New Act Primer event, hosted by Nelligan O'Brien Payne’s Condo lawyers!*

*For full contest rules, including a description of the prize, please click here.

The contest will run for four weeks in February/March, on Condo Law News, a blog published by the Nelligan O’Brien Payne LLP Condominium Law Group.

A quiz question will be included in our weekly blog posts from February 23, 2016 to March 17, 2016, which will be based on the changes to the new Condominium Act. You will have approximately 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.

Want an extra entry into the contest? Use the hashtag!

Simply tweet or post on Facebook about the contest using the hashtag #condolawnewscontest2016 and each user will gain one extra entry into the contest.

(If your Twitter username or Facebook name does not reflect the email address you are entering the contest with, please email us at nelligannews@nelligan.ca to ensure we award you the extra entry.)

The winner will be announced in our March 21st, 2016 blog post.

Week One Question: Question period is now over! Thanks for playing!

Week Two Question: Question period is now over! Thanks for playing!

Week Three Question: Question period is now over! Thanks for playing!

Week Four Question: Question period is now over! Thanks for playing!

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

Change is in the Air Contest – 2016 Edition Official Rules

Condo Law News: Change is in the Air Contest – 2016 Edition

OFFICIAL RULES

GENERAL CONTEST RULES: By entering the Contest, Entrants agree to abide by these Official Contest Rules (the “Official Rules”) and the decisions of the Sponsor, which are final. The failure of the Sponsor to enforce any term of these Official Rules will not constitute a waiver of that provision.

The Sponsor reserves the right, in its sole discretion, to terminate the Contest, in whole or in part, or modify, amend or suspend the Contest and/or the Official Rules in any way at any time for any reason, without prior notice or compensation. In the event of cancellation, Sponsor may elect to identify Winner and award the Prize by way of a random draw from among all eligible Entries received up to the time of such cancellation.

CONTEST PERIOD: The Condo Law News: Change is in the Air Contest – 2016 Edition (the “Contest”) starts on Tuesday, February 16, 2016, and ends at 11:59 p.m. Eastern Time (“ET”) on Sunday, March 20, ;2016 (“Contest End Date”). The Sponsor of the Contest is Nelligan O’Brien Payne LLP (the “Sponsor”).

ELIGIBILITY: NO PURCHASE NECESSARY TO ENTER OR WIN. A PURCHASE WILL NOT INCREASE CHANCES OF WINNING. The Contest is only open to legal residents of Ontario who are of legal age of majority and at least nineteen (19) years of age at the time of entry. Employees, officers, and directors (including Immediate Family members and members of the same household, whether or not related) of the Sponsor or its affiliated entities are not eligible to participate or win a prize. "Immediate Family" means spouses, parents, siblings and children and their respective spouses, regardless of where they reside.

HOW TO ENTER: Visit this page, click on the Contest Banner on www.condolawnews.ca, and/or enter the information requested in the fields located under the Official Weekly Question at the bottom of each Condo Law News post during each of the four (4) Weekly Contest Periods outlined in the Schedule below to access the online entry form for the Contest (the "Online Entry Form"). Online entry only. For one extra ballot into the contest, Entrant can, using their own Twitter or Facebook accounts, use the hashtag #condolawnewscontest2016 in a Tweet or Facebook post. Only one extra entry via this method will be accepted. No other method of entry will be accepted. Free access to the Internet is available at most public libraries.

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By fully completing all non-optional information and successfully submitting the Online Entry Form as directed during a Weekly Entry Period and answering the Official Weekly Question correctly, Entrant will receive one entry (an “Entry”) the Contest for the Draw Period. Entrants to the Contest may be given the option to subscribe to the Sponsor’s publications, however, eligibility to participate in the Contest is not dependent upon entrant's consent to subscribe, and subscription will not impact Entrant’s chances of winning. Incomplete entries will be deemed void.

Limit of one (1) entry per Entrant/e-mail address per Weekly Contest Period. Entrants may not submit entries from more than one email address. The contest periods are outlined in the chart below (each a "Contest Period").

Weekly Contest Period Schedule*:

Weekly Contest Period Start

Weekly Contest Period Deadline

2:30:00 p.m. ET on February 25, 2016

11:59:00 p.m. ET on March 2, 2016

2:30:00 p.m. ET on March 3, 2016

11:59:00 p.m. ET on March 9, 2016

2:30:00 p.m. ET on March 10, 2016

11:59:00 p.m. ET on March 16, 2016

2:30:00 p.m. ET on March 17, 2016

11:59:00 p.m. ET on March 20, 2016

* The Sponsor’s computer system will be the official clock of the Contest.

RANDOM DRAW: A random draw (the “Draw”) for the Prize by the Sponsor will be held on or about March 20, 2016 (the “Draw Date”) in Ottawa, Ontario from all Eligible Entries, and one Entrant (the “Potential Winner”) will be selected. Odds of winning the Prize depend on the number of eligible Entries received by the Sponsor.

DECLARING A WINNER: To be declared the Winner (the “Winner”) and claim the Prize, a Potential Winner must (i) be eligible according to these Official Rules, (ii) correctly answer, without assistance of any kind, whether mechanical or otherwise, a time limited mathematical skill testing question which will be administered by telephone at a mutually agreeable time, and (iii) sign a duly completed Liability and Publicity Release Form (the “Release Form”) and return same to the Sponsor by the date specified on the form.

Attempts will be made to contact a Potential Winner by email and/or by telephone at the e-mail address or telephone number provided on the Online Entry Form at the time of entry, between 9:00 a.m. and 9:00 p.m. ET for a period of three (3) business days following the Draw Date. If a Potential Winner cannot be reached within the allotted time, incorrectly answers the skill testing question, as determined by the Sponsor in its sole discretion, or declines the prize, they will be disqualified, the prize will be forfeited and, at Sponsor's discretion and time permitting, an alternate potential winner may be selected at random from among remaining eligible entries. The Winner’s name will be announced in a Condo Law News blog post on March 21, 2016.

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Persons found tampering with or abusing any aspect of this Contest or attempting to undermine the legitimate operation of the Contest by cheating, deception or other unfair playing practices, or intend to annoy, abuse, threaten or harass any other entrant or Sponsor's representatives or who are in violation of these Official Rules, as solely determined by Sponsor will be disqualified and all associated Entries will be void. Any attempt to deliberately damage the content or operation of this Contest is unlawful and subject to legal action by the Sponsor, and/or its respective agents.

PRIZE: There will be one (1) prize available to be the won (the "Prize"), consisting of: (a) waived registration fees for up to five (5) individuals to attend the upcoming 2016 New Act primer event hosted by Nelligan O’Brien Payne, and (b) a merchandise prize package from the Sponsor. Prize has an estimated retail value ("ERV") of $250.00 CAD. All Prize details, including exact nature of merchandise prize package will be determined in the sole discretion of Sponsor. Prize must be accepted as awarded and no substitution, transfer, conversion or assignment of Prize will be allowed. The Sponsor reserves the right to substitute a prize of comparable or greater value at its sole and discretion.

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Getting Ready for Spring: Part 1 – Barbeques

Does your condominium corporation permit barbeques on the common elements and/or balconies? If not, does your condominium have an adequate provision in its declaration or rules restricting this activity?

Many condominium corporations pass a rule to prohibit all barbeques on balconies. In our view, such a rule is valid and enforceable in most cases. Sometimes, a condominium corporation will only limit the types of barbeques permitted. Whenever barbeques are permitted, a condominium should have a rule in place regulating the use of any barbeques (and in particular, on balconies).

A well drafted rule will address issues such as: types of barbeques permitted (electric, propane, charcoal), and steps that an owner must follow for addressing fire prevention, safety, inspection of equipment, nuisance issues, and various other matters.

While all barbeques are a potential fire hazard (which is one of the reasons that rules governing use are recommended), it is important to be aware that there are specific restrictions on the use of propane barbeques. The TSSA (Technical Standards and Safety Authority) regulates the use of propane barbeques. The specific regulations, as well as other important safety tips regarding the use of fuel burning barbeques, can be found on websites for the TSSA and the City of Ottawa. Below are some of the key points to remember:

  • Electric barbeques are often preferred for condominium balconies;
  • Be aware of the risks of carbon monoxide for fuel burning barbeques. These barbeques are not permitted in an enclosed space (such as an enclosed balcony, or, for townhouse condominiums, in an attached garage);
  • Propane cylinders must be stored outdoors. The release valve must be at least one metre horizontally from any building opening below it (doors and windows) and three metres from a building air intake;
  • Propane cylinders must be transported in service elevators. If there are no service elevators, only the person transporting the cylinder is allowed in the passenger elevator;
  • Barbeques must be kept clear of all combustible materials;
  • Never leave a barbeque unattended when in use.

The consequences of improper barbeque use can be profound due to carbon monoxide and fire risks. On a condominium balcony, improper use of a barbeque, leading to a fire, can result in damage to the common elements and units, and is a threat to the life safety of residents. Ensure that your Condominium Corporation has rules in place regarding barbeques and that residents follow them!

Yet Another Case of a Limited Recovery of Enforcement Costs

In a Toronto condominium this past September, complaints were received about the smell of tobacco smoke permeating into units surrounding Unit 115. This unit was occupied by two new tenants pursuant to a lease that prohibited smoking. The smells and complaints occurred shortly after the tenants moved in.

The evidence before the court in Toronto Standard Condominium Corporation No. 2032 v Boudair, et al. was that the Condominium Corporation notified the unit owner of the complaints received approximately three weeks into the lease, and the unit owner then advised the tenants and instructed them not to smoke in the unit. However, further complaints were received by the Condominium Corporation, and the owner continued to communicate with the tenants about their ongoing breach of the smoking prohibitions.

The Condominium Corporation then sent a demand letter to the unit owner on November 4, 2015, requesting compliance with the rules and regulations. The unit owner forwarded the Corporation’s letter to the tenants with a note that if the tenants did not act properly and stop smoking, or vacant the unit, they would be responsible for all expenses incurred.

Despite this, further complaints were received by the Condominium Corporation, and an application was commenced on November 27, 2015. Once the application record was served on the owner, he also served a notice to terminate the lease, and secured the earliest available date (February 2016) with the Landlord and Tenant Board to terminate the tenancy.

The parties agreed before the Court in January 2016 to a compliance order under s. 134 of the Condominium Act, 1998, enforcing compliance with the rules, an order prohibiting the tenants from smoking in the unit, and an order terminating the lease pursuant to s. 134(4) of the Act. They then returned to Court to argue the issue of costs.

The Condominium Corporation was seeking costs against the owner and the occupants on a substantial indemnity basis of $32,976.94, or on a partial indemnity basis of $25,125.00.

The Court exercised its discretion and made a partial indemnity costs award of $10,000 in favour of the Condominium, payable only by the tenants, not the unit owner. The Court also awarded costs against the tenants to the unit owner.

In making the decision that the owner did not have to pay any costs, the Court determined that the unit owner did take all reasonable steps in that he “did not sit by and do nothing”. He made considerable efforts to obtain compliance, he threatened the tenants with termination, he was very active once he learned of the existence of the complaints, and pursuing an early termination of the lease was a prudent course of action.

In exercising its discretion and awarding only $10,000 in costs to the Condominium Corporation, the Court stated:

I do not believe that all of the costs sought by the applicant and Dong should lay at the feet of the tenants. I have already found that the applicant jumped the "smoking gun" by moving straight for a compliance order under section 131 of the Act without working with and assisting Dong with his efforts. Prior to the issuance of this application, the tenants were already in negotiations with Dong to move out of the unit and were moving towards that goal.”

“… Overall, the Court is required to consider what is "fair and reasonable" in fixing costs, and it is to do so with a view to balance and compensation of the successful party with the goal of fostering access to justice

This case is another example of the Court’s exercise of its discretion in awarding costs, shifting further away from the Condominium Corporation’s statutory and contractual indemnification protections in compliance proceedings.

While the initial position may be full indemnity in accordance with these protections, these decisions rely on case-specific facts that, in the Court’s view, justify a reduction of the scale and quantum of awards. The reasons cited often point a finger at the Condominium Corporation for having not done enough to find a resolution, or because a Board made what was likely one or more innocuous choices at the time, which, despite obtaining the compliance order, then backfire on the issue of costs.