Happy Holidays from the Condominium Law Group!

As our last blog post of 2016, we are happy to republish a Christmas poem written by Jim Davidson long ago…when he was 12 years old!

 

We hope that all of our readers have a happy and safe holiday, and we look forward to posting the Condo Law News blog in 2017 as Davidson Houle Allen LLP Condominium Law!

 

Happy Holidays to All!

A Christmas Poem

Well I remember what Rudolph said to old St. Nick
He said “Santa old buddy, the fog’s kinda thick
I can’t see a foot for the snow and the sleet
And at this rate, Santa, it’ll take us all week”

Santa just smiled and he said “what’s your worry?”
He said “Rudolph, relax, there ain’t no hurry
The weather’ll change when we get off the coast
And until then, Rudolph, we’ll just make the most”

Onward they flew, their hearts aglow
Braving the cold, and dodging the snow
And as a shimmer appeared with the closing of night
They finished their task, and slipped from sight

Then came the warmth of the morning sun
The air was fresh, the job was done
And though all the people were far far away
They brought ‘em all together on Christmas day

Bill 132 – Update to Workplace Harassment: Is Your Condo Compliant?

A condominium corporation is an employer for the purpose of the Occupational Health and Safety Act (OHSA), and therefore is required to adhere to the obligations under the OHSA relating to prevention of workplace violence and harassment. Such obligations include having workplace violence and harassment policies and programs, which must be tailored to the condominium corporation’s workplace.

 

Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, introduced amendments to various laws to address issues including sexual violence, sexual harassment and domestic violence. Effective September 8, 2016, the bill amends the OHSA by updating the definition of Workplace Harassment to include “workplace sexual harassment”.

 

Under the OHSA, workplace sexual harassment now means:

 

  • 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, where the course of comment or conduct is known or ought reasonably 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;

 

The amendments to the OHSA by the Sexual Violence and Harassment Action Plan Act also include steps that an employer must take in an effort to address workplace harassment, including:

 

  • Having a written program that must, amongst other things, include explanations as to how incidents and complaints will be investigated;

 

  • Ensuring that an investigation, appropriate in the circumstances, is conducted into incidents and complaints of workplace harassment;

 

  • Informing the complainant and the alleged harasser in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;

 

  • Reviewing the workplace harassment program as often as necessary, but at least annually, to ensure that it adequately implements the workplace harassment policy.

 

It is important to review your corporation’s workplace violence and harassment policies and programs so that any changes required as a result of the amendments can be made, to ensure that the corporation is complying with these provisions of the OHSA.

 

We always recommend that the corporation’s policies and programs be in writing, even though the OHSA allows policies to not be in writing if there are fewer than six employees.

 

Employers have an obligation to take the issues of workplace violence and workplace harassment seriously, and to act in accordance with its obligations if a complaint is received, or an incident occurred.

 

If you have any questions about workplace violence and harassment policies and programs for your corporation, or questions about the amendments to the OHSA, please contact us.

Recent Decision Addresses Short-term Rentals

A recent Ottawa court decision provides helpful confirmation of the existing law respecting the rights of condominium corporations to prevent short-term tenancies.

 

In the case of Ottawa-Carleton Standard Condominium Corporation No. 961 v. Menzies – which we will cite as OCSCC 961 – the Court held that an owner’s short-term rentals, arranged through “numerous websites such as Airbnb”, violate the corporation’s Declaration and Rules.

 

The corporation’s Declaration states that the units can be used only as single family dwellings. The Court said:

 

“Single family use” cannot be interpreted to include one’s operation of a hotel-like business, with units being offered to complete strangers on the internet, on a repeated basis, for durations as short as a single night. Single family use is incompatible with the concepts of “check in” and “check out” times, “cancellation policies”, “security deposits”, “cleaning fees”, instructions on what to do with dirty towels/sheets and it does not operate on credit card payments.

 

Moreover “Single family use” could not have contemplated including the use of a unit to house out-of-town witnesses and experts for trial preparation or the unit being offered on silent auctions for not-for-profit organizations or to hold a law firm’s office functions and Christmas parties. What has happened in this case is a commercial use of the unit.

 

The corporation also passed a Rule placing a four-month minimum on the duration of tenancies. The Court said that “rules requiring that leases be in excess of 4 months have been found to be valid and enforceable.

 

So, in summary, this is another helpful decision that serves to reinforce previous cases upholding similar provisions in condominium Declarations and Rules.

 

Another note that I hasten to add is as follows: the courts have previously upheld Rules prohibiting short-term tenancies even in cases where the Declaration doesn’t contain any “single family” provision, but rather says that the units can only be used for “residential purposes”. In my view, some of the reasoning in the OCSCC 961 decision (for instance, the reference to “commercial use”) might also be helpful in those situations. Anyway, my point is that even if your Declaration doesn’t include a “single family” provision, you might still be able to pass and enforce a Rule against short-term tenancies. This is something that may depend upon the specific wording of the Declaration in each case.

 

The OCSCC 961 decision also contains some other interesting findings. For instance:

 

  • The Court said: “In the absence of a definition in the condominium documents of what constitutes a ‘single family’, the courts have defined a ‘family’ as a ‘social unit consisting of parent(s) and their children, whether natural or adopted, and includes other relatives if living with the primary group. So this is another reminder that condominium corporations with “single family” provisions in their Declarations should consider establishing a definition of family, perhaps by Rule. Otherwise, the above definition from the courts – which is an extremely narrow definition – may apply!

 

  • The Court also confirmed, as has been held in previous cases, that mandatory mediation and arbitration (under Section 132 of the Condominium Act, 1998) does not apply when the dispute involves any parties other than the condominium corporation and the owner. In this case, the owner had incorporated a company to manage and lease the unit; and the Court held that this company was a necessary party to the dispute. The Court also held that the owner had waived any rights to mandatory mediation and arbitration because the owner’s management company had commenced a Court Application (respecting essentially the same issues) against the condominium corporation – even though that Application had since been abandoned.

 

This is yet another strong decision in support of condominium corporations looking to prohibit short-term tenancies.

 

For more information about short term tenancies in condominiums, please get in touch with us.

The Rights Of Smokers And Non-Smokers Continue To Evolve

The rights of smokers and non-smokers in condominiums continue to evolve across Canada.

 

The Smoke-Free Ontario Act prohibits smoking in the interior areas of the common elements of all condominiums, and also prohibits smoking on outdoor patios of bars and restaurants (including such outdoor patios on condominium property).

 

Condominium corporations can also pass Rules to prohibit smoking in other areas of the common elements.

 

But what about prohibiting smoking in the units?

 

As revealed by the debate at the most recent ACMO/CCI Toronto Condominium Conference, lawyers in Ontario disagree about the required procedures. Some lawyers feel that prohibiting smoking in the units requires a provision in the condominium’s Declaration. Others feel that this can be achieved by way of a Rule. In my view, a Rule is sufficient. From my perspective, this is precisely the sort of issue that can properly be regulated, in Ontario, by way of a Rule.

 

I hasten to add, however, that we don’t yet have any Ontario court or tribunal decisions on point – so this is still a grey area.

 

The other issue is: if a condominium passes a Rule or amends the Declaration to prohibit smoking in the units, are existing smokers grandfathered? Again, there is debate on the point; but we’ve previously felt that there should be reasonable grandfathering of existing smokers. What is “reasonable” may depend upon all of the history and the specific circumstances of the particular condominium, including the configuration of the units and common elements, the availability of “permitted smoking areas” on the common elements, difficulties preventing smoke transfer within the building(s), and other issues.

 

But it now appears, based on a recent case from B.C., that there may be an argument that grandfathering is unnecessary, at least in some cases.

 

In the case of The Owners, Strata Plan NW 1815 v. Aradi, the strata corporation passed a “no smoking” by-law; and the Court enforced the by-law against an existing smoker (who had acquired his unit when smoking in the units was permitted). So, the Court confirmed that there was no grandfathering of existing smokers. The smoker in that case has an outstanding claim to the B.C. Human Rights Tribunal, in which the smoker is claiming a right to smoke as an accommodation (for his addiction to smoking). The human rights claim is scheduled to be heard early in 2017 – so there will likely be more to this story.

 

It is important to note that B.C. law (in relation to the passing of by-laws) is not identical to Ontario law (in relation to the passing of rules); so it’s possible that there may be a distinction between the laws in Ontario and B.C. with respect to this issue.

 

But the bottom line is as follows: In the future, if a condominium goes “smoke free”, depending upon all of the circumstances, it might not be necessary to grandfather existing smokers, and it may also be possible to consider different durations of grandfathering.

 

But until we have some more decisions on point, we just don’t know.

 

For more information about making your condominium “smoke free”,  please contact us.