Is An Owner’s Email Address Part of Their Address for Service?

A recent Ontario court decision provides the condominium industry with some helpful clarification regarding email addresses and record-keeping. Specifically, a unit owner’s email address that is held in a condominium corporation’s records is not to be disclosed as part of the owner’s address for service.

On April 20, 2016, Deputy Judge Whitehall, Q.C., released his Small Claims Court decision in Hui Wu v Carleton Condominium Corporation No. 383.

The condominium, in this case, had a practice of obtaining an owner’s email address and consent (from those owners willing to provide it) in order to send the condominium’s official communications by email.

The plaintiff made a request to the condominium for access to the “address for service” of all owners. The condominium responded by providing the plaintiff with the mailing address of each owner (i.e. the address for service kept in the condominium’s records). The plaintiff was not satisfied, and ultimately commenced a court claim to force the condominium to disclose the email addresses of unit owners that were maintained in the condominium’s records.

The court held that owners’ email addresses are not part of the address for service that must be disclosed within the meaning of section 55 of the Condominium Act.

In arriving at this conclusion, the court considered the interplay between certain relevant sections of the Condominium Act.

As our readers may know, section 55(1)(6) requires a condominium to produce the records kept under section 47(2); that is, the owner’s names and addresses for service. The condominium in this case complied with its obligation under section 47(2) by keeping a record of the names and mailing addresses of owners, separate and apart from a record of any email addresses.

Notably, section 47(7) allows for a notice to an owner to be sent either to the mailing address listed in the condominium’s records or by email, if an email address has been provided (and if the owner consents).

So, the question arises: can a unit owner’s email address be considered their address for service under section 47(2)? And, if so, must that email address be disclosed under section 55?

Again, this decision confirms the answer is no. A condominium corporation can send a notice by email to those owners who have consented to receipt of that notice by email communication. However, email addresses do not form part of the official records kept under section 47(2) of unit owner’s addresses for service. As such, email addresses should not be disclosed to other unit owners (or any third party) that request access to such records (without consent).

Our readers in the condominium industry are welcome to contact our Condominium Law Group with any questions about the potential impact of this court decision.

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Owner Awarded Damages for Corporation’s Slow Repairs

A recent court decision confirms the rights of owners to claim for damages when their condominium corporation fails to attend to repairs with sufficient haste.

Here’s the key extract from the court’s decision in Ryan v. York Condominium Corporation No. 340:

If one examines the whole history and does not approach the facts incrementally, what emerges is that YCC 340 has had a known water penetration problem for over thirty years and has not fixed the problem. This is patently not reasonable. Even if one ignores YCC 340’s state of knowledge acquired before 2010 about the existence of a water penetration problem, the stark fact emerges that Mrs. Bird and Mr. Ryan advised YCC 340 about the water infiltration problem in April 2010 and repeatedly thereafter, but it took YCC 340 until November 2014 (4.5 years) to effect repairs that appear so far to have arrested the water infiltration problem and another year to remediate the presence of mould.”

The decision includes a number of interesting findings, including the following:

  • Mandatory mediation/arbitration did not apply to this claim, at least in part because the owner had included a claim for oppression under Section 135 of the Condominium Act.
  • In determining whether or not a condominium corporation has breached its repair or maintenance obligations, the court again confirmed that the standard is reasonableness – that is, whether or not the condominium corporation has acted reasonably in attempting to fulfil its obligations.
  • Although the court found that YCC 340 had breached its repair obligations, the court did not find any oppression. The court said: “Oppressive conduct is coercive, harsh, harmful, or an abuse of power”, and can also include “unfairly prejudicial conduct” or “conduct that unfairly disregards the interests of the claimant”. The court said that, in this case, the corporation’s conduct was “ineffective until recently but it was not abusive or oppressive”.

But what I found most interesting about the decision was the court’s award of damages to the owner. The court awarded Mr. Ryan $69,691.39, broken down as follows:

  • $37,457.07 – Common area expenses for the condominium unit for 2011 to 2015
  • $7,456.84 – Municipal realty taxes for the condominium unit for 2011 to 2015
  • $3,780 – Gas mileage expense for medical appointments 2011-2015 (28 trips)
  • $5,997.48 – Legal expense (for legal services prior to the court process)
  • $15,000 – For repairs to the interior of the condominium unit

The water damage had forced the owner to move to his farm property – far from the condominium. In short, he was not able to make use of his unit. Here’s some of what the court said about the damages:

The explanation for this award is that because of YCC 340’s failure to repair the damage to the common elements, Mr. Ryan’s quiet enjoyment of his Unit has been disrupted and he was unable to enjoy the benefits of ownership. The expense he incurred for common area expenses and for municipal realty taxes was a wasted expense. He, therefore, is entitled to recover $37,457.07 and $7,456.84 respectively.

He is also entitled to recover the travel expense to his medical appointments and his legal expenses. These were expenses he would not have incurred had YCC 340 complied with its obligations under the Condominium Act.

Mr. Ryan, however, is not entitled to recover his $20,000 claim for utilities and maintenance expenses for the farm property. These expenses were not wasted, and it would be double counting to make an award on this account. He is also not entitled to recover his claim for the $4,206.24 special assessment, which is or will be used to effect repairs to the condominium buildings. As a unit holder, Mr. Ryan remains obliged to pay this expense, which will be for his benefit.

The court did not award Mr. Ryan damages for mental distress “because he proved no loss under this head of damages”.

In summary: Condominium corporations must attend to common element repairs with reasonable haste. Otherwise, if owners lose the use of their units, they may assert claims against the corporation for “wasted” common expenses and realty taxes.

To read more about a corporation’s duty to repair and maintain, take a look at our previous blog post.

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Reminder: ACMO CCI-EO 4th Annual Conference on May 27, 2016

Nelligan O’Brien Payne is proud to be the Diamond Sponsor of the 4th Annual ACMO CCI-EO condominium conference being held in Ottawa on May 27, 2016.

There is an exciting schedule of presentations by leading experts in the condominium field, providing updates and discussing timely issues relevant for managers, board members and condominium owners!

As always, the conference has a comprehensive array of fantastic exhibitors ready to speak with attendees about condominium issues throughout the day.

Register today by visiting the CCI website here!

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Tarion is Under Review

As many of our readers may know, Ontario recently initiated a review of Tarion Warranty Corporation. Tarion is the non-profit corporation created under the Ontario New Home Warranties Plan Act to oversee warranties and other matters related to new home construction and sales in Ontario.

Detail about the province’s review of Tarion can be found at the Ministry of Government and Consumer Services website here. Below is an extract from their site:

We have initiated an independent review of the Ontario New Home Warranties Plan Act and the Tarion Warranty Corporation.

The Honourable J. Douglas Cunningham, QC has been appointed as a special advisor to review protections for owners of new homes and identify opportunities to improve consumer protection.

His final report will provide recommendations on how to improve consumer protection, accountability, transparency and board governance to help protect consumers buying new homes in Ontario.”

I offered written comments to Justice Cunningham, and was honoured when he invited me to participate as a member of a “focus group” to provide feedback about Tarion that might assist in the review process.

Members of the focus group were asked a number of questions about Tarion, including:

  • What is your understanding of Tarion’s role and purpose? Do you have any suggestions on what role Tarion should have?
  • What do you see as the strengths of the Ontario New Home Warranty Plan Act (ONHWPA)? What do you see as weaknesses or deficiencies?
  • What warranty coverage and consumer protections do you believe should be provided to new home owners? What are the current gaps in coverage, and how can these gaps be improved?
  • What are some common concerns for new home owners? What do you think gives rise to these concerns? Who should be responsible for responding to these concerns?
  • What concerns are best addressed by organizations other than Tarion?
  • What does Tarion currently do well? What improvements would you recommend (including consumer protection, accountability, board governance and/or warranty coverage itself)?

I was very pleased to provide written responses, and I look forward to eventually seeing Justice Cunningham’s report once he has completed his review.

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An Owner Makes Changes to the Common Elements

A recent court decision, York Condominium Corporation No. 78 v Stein, nicely summarizes the principles that apply when an owner makes changes to the common elements.

In this case, the owner had made substantial renovations to her apartment, which also included some changes to the common elements. For instance, the owner had made changes to electrical and plumbing features, as well as to heating equipment in the apartment, and these were changes to the common elements (in the case of York Condominium Corporation No. 78).

The court noted that the owner had made the changes without complying with Section 98 of the Condominium Act, 1998, which includes the requirements for consent of the Board and for a registered agreement between the condominium corporation and the owner. The court also noted that the changes were a possible threat to safety.

The court granted the condominium corporation full access to the unit (upon 48 hours’ notice to the owner) for the purpose of:

  1. carrying out a full inspection to determine any further unauthorized additions and/or alterations to the common elements;
  2. restoring any such unauthorized additions and/or alterations to the common elements to their original condition;
  3. carrying out a full inspection to determine whether the current state of the Unit poses any risk(s) as provided for in section 92 of the Act.

In my view, some of the key points to take away from this case are as follows:

  1. When an owner renovates a unit, the renovations may include changes to the common elements.
  2. An owner’s changes to the common elements must comply with Section 98 of the Condominium Act. Briefly, the requirements of Section 98 are:
    • Consent of the board;
    • An agreement between the corporation and the owner, registered on title to the owner’s unit;
    • In some cases, involvement of all owners in the approval.
  3. One of the obligations of the condominium corporation is to take reasonable steps to ensure compliance with Section 98.
  4. In each case, the corporation should also consider whether or not the changes could represent any risk to safety.

Read more about changes to common elements in our previous blog post.

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