Licensing of Condominium Managers-What are some of the statutory obligations placed upon licensees? (Blog No. 6 in a Series)

We now have the draft regulations under the Condominium Management Services Act, 2015 (the “Management Services Act”).  This is the sixth in a series of blogs that I am preparing in relation to the draft regulations.

In this Blog No. 6, I answer the following question:  What are some of the statutory obligations placed upon licensees?

What are some of the statutory obligations placed upon licensees?

I.  Proof of Licence

According to the proposed regulations:

While providing management services, licensees must carry their licences with them and produce them for inspection by anyone who requests.

Condominium management providers must keep paper forms of their licences in their places of business.

II.  Address

The proposed regulations say that a licensee must maintain an Ontario address for service.

III.  Changes in Information

The proposed regulations say that a licensee must notify the Registrar in writing within five days of changes in certain information related to the licence.

IV.  Multiple Employers

According to the proposed regulations:

A licensee can only be employed by condominium management provider(s); except that a general licensee can be employed directly by as many as three condominium corporations.

A licensee cannot be employed by more than one condominium management provider unless all of the management providers agree.

V.  Conflicts of Interest

The Management Services Act and proposed regulations require licensees to disclose their conflicts of interest in relation to existing and/or proposed contracts or transactions of the client (and the licensee must not participate in any discussions respecting the matter).

VI.  Insurance

The proposed regulations require that condominium management providers disclose (in the management contract) the type and amount of insurance coverage (if any) held by the management provider and manager.  The licensee must also notify the client within 14 days of any change in the licensee’s insurance coverage.

VII.  Proxies

The Management Services Act and proposed regulations prohibit licensees from soliciting proxies for meetings that will deal with matters directly related to the licensee, or with the election or removal of one of the directors, or with any other matter prescribed by regulations under the Management Services Act.  (The proposed regulations also contain a definition of “solicit”.)

VIII.  Records

  • Records respecting licence: The proposed regulations would require licensees to maintain various records respecting their licences and management services, for at least six years.
  • Storage of records: Licensees would be required to keep the above records in Ontario; and would only be permitted to store records in a dwelling if the licensee has received approval from the Registrar to do so.
  • Transfer of client’s records: The Management Services Act requires immediate transfer of the client’s records upon termination of a management contract.  The proposed regulations say that this transfer must occur within 10 days of the termination; except that records required by the contract but which don’t yet exist could be created and delivered within one month.  (The manager would also be entitled to make and keep copies of records, for limited purposes and on terms set out in the regulations.)
  • No pressuring: The Management Services Act says that licensees must not withhold records as a means of pressuring the client to meet obligations under the management contract.

IX.  Management Agreements

The Management Services Act says that licensees must have a written management contract and “shall not provide such services except in accordance with the contract”.

X.  Obligations of Condominium Management Providers

The Management Services Act says that management providers must only employ licensed managers (for services requiring a licence) and the providers must also “ensure that every condominium manager that the provider employs carries out his or her duties in compliance with this Act and the regulations”.

XI.  Obligations of Principal Condominium Managers

The Management Services Act says that principal condominium managers must “ensure that the condominium management provider complies with this Act and the regulations”.

XII.  Contraventions

The Management Services Act says that licensees must not “counsel, advise or knowingly assist a person to contravene this Act, the Condominium Act, 1998 or any other prescribed Act”.

The Management Services Act also says that licensees must not furnish or knowingly assist in the furnishing of false information or documentation relating to the providing of condominium management services.

Stay tuned to Condo Law News for more blogs about the draft regulations under the Condominium Management Services Act, 2015.

Licensing of Condominium Managers- Six Questions Answered (Blog No. 5 in a Series)

We now have the draft regulations under the Condominium Management Services Act, 2015 (the “Management Services Act”).  This is the fifth in a series of blogs that I am preparing in relation to the draft regulations.

In this Blog No. 5, I try to provide answers to a number of questions that we’ve received about the proposed licensing.

The draft regulations say that some applicants could be grandfathered in relation to the education and testing requirements – based on “equivalencies”.  What “equivalences” will be accepted?

The short answer to this question is:  We don’t know.  This will be up to the Registrar of the Licensing Authority.  The Registrar has the right to accept or not accept any given course or program.  We’ve been told that someone who has previously taken courses or obtained certificates, diplomas or degrees may be exempted from some or all of the education requirements; but the expectation is that they would still need to pass the applicable exam(s).  All of this will be determined on a case-by-case basis.

The draft regulations say that applicants must be “employed” by a licensed condominium management provider or directly by no more than three condominium corporations.  How does this apply to managers who are independent contractors?

The Management Services Act contains the following definition of “employ”:

“employ” means to employ, appoint, authorize or otherwise arrange to have another person act on one’s behalf, including as an independent contractor.

So, a manager who is an independent contractor is “employed” (for purposes of the Management Services Act and regulations).  In other words, the licensing legislation applies in the same way to managers “employees” and “independent contractors”.

Will a high school education be a requirement?

We’re told that a high school education is not expected to be a requirement.

The Management Services Act says that applicants may be asked for details of their financial circumstances (to show that they can be expected to be “financially responsible”).   Is this expected to include a bankruptcy certificate (showing that the applicant is not an undischarged bankrupt and/or has not recently gone bankrupt)?

We’re told that a bankruptcy certificate is not expected to be a requirement.

Managers will have three or five years to obtain their General Licences.  Will they need to show that they are working towards obtaining the necessary experience and/or education?

My short answer to this question is “no”, except that:  There will be continuing education requirements that will have to be satisfied for each licence renewal.  So, managers will have to show that they are continuing to develop and/or maintain their management expertise (by fulfilling the continuing education requirements).

What about assistants?  Will they need to be licensed?

This is another tricky question.  I’m told that this, again, will need to be assessed on a case-by-case basis.  But, the idea is essentially that “non-management staff” (like secretarial assistants) won’t require a licence – even if they occasionally assist with “management emergencies”.  It will be a matter of assessing, in each case, whether or not the assistant has management responsibilities.  As a reminder, here’s the definition of “condominium management services” in the Management Services Act:

“condominium management services” means any of the following services provided to or on behalf of a condominium corporation:

 1. Collecting or holding contributions to the common expenses or other amounts levied by, or payable to, the corporation.

2. Exercising delegated powers and duties of the corporation or its board of directors, including,

i.  making payments to third parties on behalf of the corporation,
ii.  negotiating or entering into contracts on behalf of the corporation, or
iii.  supervising employees or contractors hired or engaged by the corporation,

but does not include an activity excluded by the regulations.

Stay tuned to Condo Law News for more blogs about the draft regulations under the Condominium Management Services Act, 2015.

Suspended Access Equipment- New OHSA Regulation Amendments in Effect January 1, 2017

According to the Ministry of Labour, the improper use of suspended access equipment continues to be a cause of workplace injury.

The Ministry of Labour proposal describes suspended access equipment as “one or more work platforms or a seating surface suspended by wire ropes from an overhead anchorage (e.g., roof anchors) that can be lowered or raised along the façade of a building or structure by hoisting devices. Swing stages and boatswain’s chairs (also known as bosun chairs) are examples of suspended access equipment.

In order to strengthen the requirements related to suspended access equipment, the Ministry of Labour proposed changes to Ontario Regulation 213/91 (Construction Projects).

The proposal was approved by the Government of Ontario and the new amendments to O. Reg. 213/91 (Construction Projects) under the Occupational Health and Safety Act came into effect January 1, 2017.  These changes relate to the operation of suspended access equipment and apply to all buildings at which suspended access equipment is used and where the regulations apply.

The amendments to O. Reg. 213/91 (Construction Projects):

  • amend wording and definitions in the Regulation to clarify requirements;
  • impose new requirements respecting training, roof plans, site-specific work plans, and Ministry notification;
  • enhance previous requirements relating to design, operational, technical and engineering requirements; and,
  • amend existing inspection, testing and maintenance requirements.

The main changes can be found in Sections 136.01 to 142.06 of the Regulation.

The amendments to O. Reg. 213/91 (Construction Projects) follow previous amendments to other regulations under the Occupational Health and Safety Act that required “working at heights” training for employees that use certain methods of fall protection. [Note: Please see our previous blog, dated April 1, 2015, which addressed the above-noted changes to the Occupational Health and Safety Awareness and Training Regulation, which required “working at heights” training.]

Condominiums that use suspended access equipment should review the regulations to ensure compliance with the new requirements.

Stay tuned to Condo Law News for more blogs about Occupational Health and Safety issues in condominiums.

For more information visit the Ontario Ministry of Labour website.

 

Licensing of Condominium Managers-Who can obtain a licence to be a condominium manager? (Blog No. 4 in a Series)

Who can obtain a licence to be a condominium manager?

 The starting place is the Management Services Act.  The Management Services Act says that an applicant is entitled to a licence if the applicant meets the requirements for a licence in the Regulations (more on this below), unless:

For non-corporate applicants:  

(i) having regard to the applicant’s financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in engaging in the activities of a licensee,

(ii) the past or present conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not perform the activities of a licensee in accordance with law and with integrity and honesty, or

(iii) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for a licence or for a renewal of a licence.

For corporate applicants:

 (i) having regard to its financial position or the financial position of an interested person in respect of the corporation, the applicant cannot reasonably be expected to be financially responsible in engaging in the activities of a licensee,

(ii) having regard to the financial position of its officers or directors or an interested person in respect of its officers or directors, the applicant cannot reasonably be expected to be financially responsible in engaging in the activities of a licensee,

(iii) the past or present conduct of its officers or directors or of an interested person in respect of its officers or directors or of an interested person in respect of the corporation affords reasonable grounds for belief that it will not perform the activities of a licensee in accordance with the law and with integrity and honesty, or

(iv) an officer or director of the corporation makes a false statement or provides a false statement in an application for a licence or for a renewal of a licence.

Also

  • The applicant or an interested person in respect of the applicant must not carry on activities that are (or will be if the applicant is licensed) in contravention of the Management Services Act or regulations (other than the code of ethics established under section 77 of the Management Services Act);
  • The applicant must comply with all conditions of the licence; and
  • The applicant must provide any information requested by the Registrar. [The Registrar is entitled to ask an applicant for information that is relevant to the issues noted above; and may also ask for verification of information (by way of affidavit or otherwise).]

So in summary, applicants for a licence (and their directors, officers and interested persons) (1) must provide all information required by the regulations; (2) may be asked for details of their financial circumstances (to show that they can be expected to be “financially responsible”); (3) may be asked for details of their past and present conduct (to show that they can be expected to act with “integrity and honesty”); (4) must not make false statements on their applications; and (5) must otherwise conduct themselves in compliance with the Management Services Act and regulations, and with the terms of their licence.

Note 1:  An “interested person” is essentially someone who has control over, is associated with, or otherwise has an interest in the activities of the applicant.

Note 2:  If a licence is denied, suspended or revoked, the licensee might (in some cases) have rights to a hearing – essentially to “appeal” the decision.

Requirements in the Regulations

Under the Regulations, an applicant must:

  • Be at least 18 years of age;
  • Provide their name;
  • Complete the application form;
  • Pay the application fee or renewal fee;
  • Provide a police record check if the applicant is an individual (dated within the last six months);
  • Provide proof of successful completion of any applicable education, continuing education and/or testing requirements. [See my previous blogs on the education requirements.]
  • Provide proof of completion of two years of work experience (for a general licence or transitional general licence). [See my previous blogs on the work experience requirement.]
  • (As I read the regulations) Provide proof that the applicant is employed by a licensed condominium management provider or directly by no more than three condominium corporations;
  • For condominium management providers: Provide proof of designation of a qualified principal condominium manager;
  • If the applicant (for a general licence or transitional general licence) intends to carry on business from a dwelling: Provide proof of satisfactory arrangements whereby the Registrar can have access to the applicant’s business records (when licensed);
  • Provide any other relevant information requested by the Registrar (as noted above).

Note:  In terms of the police record check, it seems to me that this is considered “standard information” to help the Registrar determine the applicant’s “integrity and honesty” – as noted above.  So, in my view, a past criminal conviction that is not relevant to the issue (ie. does not speak to a person’s “honesty or integrity”) should not be a concern.

Stay tuned to Condo Law News for more blogs about the draft regulations under the Condominium Management Services Act, 2015.

Licensing of Condominium Managers-Restrictions on Managers who have a Limited Condominium Management Licence (Blog No. 3 in a Series)

According to the draft regulations, what are the restrictions on managers who have a LIMITED condominium management licence?

 As described in my previous blogs on this topic, condominium managers will need to obtain one of the following:

(a)   A limited licence (for applicants with up to 2 years of condominium management experience).

(b)   A transitional general licence (for applicants with more than 2 years of condominium management experience, who have not yet satisfied the higher education requirements for a general licence).

(c)   A general licence (for applicants with more than 2 years of condominium management experience, who have satisfied the higher education requirements for a general licence).

The limits on a Manager holding a limited licence

According to the draft regulations, a limited licensee can only provide condominium management services “under the supervision” of a general licensee or transitional general licensee.   The supervising licensee:

  • must oversee the work of the limited licensee;
  • must be readily available to assist the limited licensee (although not necessarily in the same location as the limited licensee); and,
  • is responsible for the work that is approved by the supervising licensee.

In addition, a limited licensee can only provide the following services “with the prior approval of the supervising licensee”:

  •  Entering into contracts on behalf of a client; and,
  •  Managing, controlling or disbursing a client’s general funds.

Limited licensees cannot provide the following services (with or without approval of their supervising licensees):

  • Signing status certificates; and,
  • Managing, controlling or disbursing a client’s reserve fund accounts.

Based on the foregoing, there’s a clear distinction between “supervision” and “approval”.   “Approval” is only required for certain specific tasks.  As I read the regulations, supervision (ie. for most tasks, when specific approval is not required) means “overseeing” the work of the limited licensee and also being “readily available to assist”.   But it’s not clear what “overseeing” may entail.   Will this require regular meetings with the limited licensee?   Will this require written tracking or logging of the management activities for each client (with the logs to be reviewed by the supervising licensee)?  Will this require that the supervising licensee review all Board Meeting Minutes and Management Reports, followed by meetings or teleconferences between the supervising and limited licensees?  Again, it’s not absolutely clear.

Stay tuned to Condo Law News for more blogs about the draft regulations under the Condominium Management Services Act, 2015.

Licensing of Condominium Managers- Licensing Timeframes and Requirements (Blog No. 2 in a Series)

According to the draft regulations, what are the new licensing timeframes and requirements?

 Step 1:  The Management Services Act must first be proclaimed in force

This is expected to occur sometime between March and June of 2017.

Step 2:  Applying for a Licence

Once the legislation is proclaimed in force, managers and management providers will then have 150 days (roughly five months) to apply for their licences.  The Licensing Authority Registrar (“the Registrar”) will have the discretion to extend this 150-day period for reasons of undue hardship.

Within the 150-day “application period”, managers will need to apply for one of the following:

(a) A limited licence (for applicants with up to 2 years of condominium management experience). [There will be restrictions on limited licensees, including a requirement that they be supervised.  (More on this in an upcoming Blog.)]

(b) A transitional general licence (for applicants with more than 2 years of condominium management experience, who have not yet satisfied the higher education requirements for a general licence).

(c) A general licence (for applicants with more than 2 years of condominium management experience who have satisfied the higher education requirements for a general licence).

The Basic Application Requirements for Managers

As I read the draft regulations, all applicants for management licences will have to satisfy certain basic requirements, including the following:

  • They will need to provide a police record check (dated no more than six months prior to the application);
  • They will need to satisfy minimum education and testing to be specified by the Minister (and subsequently by the Licensing Authority).
  • They will need to pay an application fee.

[For renewals, there will be a required fee and also required compliance with ongoing continuing education requirements; but the basis requirements won’t apply to renewals.]

So in summary, it appears to me that minimum education and testing will apply even to applicants for limited licences and for transitional general licences.  However, there is also the possibility for grandfathering – see below.

The Basic Application Requirements for Condominium Management Providers

 Applicants for condominium management provider licences will need to pay an application fee, and will also need to designate a principal condominium manager (PCM).   The PCM will have to hold a general licence and will also have to successfully complete additional education required of PCMs (to be specified by the Minister or the Registrar).  During the three-year transition period noted below, a condominium management provider will be able to designate a transitional general licensee, a general licensee or an applicant of either, as their PCM.

Step 3: For Managers who obtain a Limited Licence

 A limited licensee will have 5 years to obtain the necessary management experience and additional education; and to apply for a general licence.*

Step 3: For Managers who obtain a Transitional General Licence

A transitional general licensee will have 3 years to obtain the necessary additional education; and to apply for a general licence.*

[*These 3 and 5-year “maximum permitted renewal periods” (for limited licences and transitional general licences) run from the date of first issuance of the licence.  It’s not absolutely clear to me what happens upon expiry of these periods; but it appears to me that the licence would simply become “non-renewable”.  The manager could then make a new application for a limited licence (but in doing so would have to again satisfy all of the basic requirements).  Note:  According to the draft regulations, it would not be possible to re-apply for a transitional general licence.  As I read the draft regulations, transitional general licences will only exist during the above-noted three-year “period of transition”.]

Step 3: For Managers who obtain a General Licence

Managers who obtain a general licence would of course be able to continually renew the licence provided they satisfy all ongoing requirements for continuing education and testing (see below).

Step 4:  Meeting the Education Requirements

As noted above, all applicants will need to satisfy minimum education and testing requirements (unless they are grandfathered).

Applicants for a general licence will of course need to show that they’ve met the higher education and testing requirements to be specified by the Minister (again, unless they are grandfathered).

[Note that the Licensing Authority will take control of the education requirements (and may change the requirements) three years after the Management Services Act comes into force.]

According to the draft regulations, the higher education requirements for a general licence (at least initially) will be the following four courses and exams developed by ACMO (the Association of Condominium Managers of Ontario):

I.       Condominium Law

II.      Physical Building Management

III.     Financial Planning for Condominium Managers

IV.    Condominium Administration and Human Relations

Note as well that ACMO members in good standing holding the RCM (Registered Condominium Manager) designation will be treated as having met these requirements.  In other words, an RCM will be deemed to have the education required for a general condominium management licence.

“Grandfathering”

The draft regulations say that the Registrar has the authority to recognize any of the following as equivalent (ie. sufficient) to meet the basic or higher education requirements:

(a) The prior successful completion by the applicant of programs of study, training programs, internship programs, apprenticeship programs, courses, seminars, lectures or tutorials.

(b) The prior successful completion by the application of examinations or tests.

(c) The prior work experience of the applicant.

 In summary, although it’s not exactly clear what will be sufficient to satisfy the Registrar, the Registrar will have the authority to “grandfather” applicants (as far as concerns ANY of the education and testing requirements) based upon PAST experience, education or testing.

Step 5:  Continuing Education Requirements

According to the draft regulations, the Minister (and eventually the Registrar) may, and presumably will, specify requirements for ongoing continuing education (and testing) which will have to be met by the different licensees.   In the event of non-compliance, licence renewal will be denied.

A further note about the Management Experience requirement

As noted above, one of the requirements for a general licence (transitional or final) is that the applicant have two years of management experience.  As part of this requirement, the draft regulations say that the applicant must have:

(a) planned and participated in meetings of the board of directors of a client;

(b) planned and participated in meetings of owners, including at least one annual general meeting within the meaning of the Condominium Act, 1998;

(c) participated in preparing a budget for a condominium corporation that the applicant has presented to the board of directors of a client;

(d) interpreted financial statements for a client under section 66 of the Condominium Act, 1998 and presented them to the board of directors of the client;

(e) prepared and presented reports to the board of directors of a client; and

(f) overseen the maintenance or repair of units, common elements within the meaning of the Condominium Act, 1998 or client assets, if any.

Stay tuned to Condo Law News for more blogs about the draft regulations under the Condominium Management Services Act, 2015.

Licensing of Condominium Managers – Who Needs to be Licensed? (Blog No. 1 in a Series)

We now have the draft regulations under the Condominium Management Services Act, 2015 (the Management Services Act).  This is the first in a series of blogs that I will be preparing in relation to the draft regulations.

In this Blog No. 1, I explore the following question:  According to the draft regulations, who will need to be licensed?

There are two types of licences – one or both of which may be required:

(a) A “condominium management” licence.
(b) A “condominium management provider” licence.

“Condominium management” licences

According to the draft regulations, anyone who provides “condominium management services” must apply for one of the following licences within 150 days after the Management Services Act comes into force:

(a) A limited licence (for applicants with up to 2 years of condominium management experience).
(b) A transitional general licence (for applicants with more than 2 years of condominium management experience, but have not yet satisfied the education requirements for a general licence).
(c) A general licence (for applicants with more than 2 years of condominium management experience who have also satisfied the education requirements).

[NOTE:  I will have more to say about the different licences in an upcoming blog.]

The Management Services Act contains the following definition of “condominium management services”:

“condominium management services” means any of the following services provided to or on behalf of a condominium corporation:

1. Collecting or holding contributions to the common expenses or other amounts levied by, or payable to, the corporation.
2.
Exercising delegated powers and duties of the corporation or its board of directors, including,
(i)  making payments to third parties on behalf of the corporation,
(ii)
negotiating or entering into contracts on behalf of the corporation,  or
(iii)supervising employees or contractors hired or engaged by the
corporation,
but does not include an activity excluded by the regulations.

This is quite a broad definition.  However, the draft regulations contain a proposed list of exemptions from the licensing requirements.   Under the proposed regulations, the following persons would be exempted (when acting within their statutory or appointed authority):

I.       Paralegals and Lawyers;
II.     Architects;
III.    Public Accountants;
IV.    Certified General Accountants;
V.     Certified Management Accountants;
VI.   Chartered Accountants;
VII.  Engineers;
VIII. Insurance Brokers;
IX.    Receivers appointed by Court order;
X.     Banks, loan and trust corporations, credit unions or caisse populaires;
XI.   Reserve fund analysts under the Condominium Act;
XII.  Inspectors and Administrators appointed under the Condominium Act;
XIII. Licensed Security Guards (even if they collect common expenses from owners, provided they promptly deliver those amounts to the condominium corporation or to a licensed condominium manager).

[My sense is that the above persons are to be exempted because they are otherwise licensed or regulated, so that additional licensing is felt to be unnecessary.]

But there are three additional exemptions which I think are most interesting:

XIV.   Condominium directors, unless they are providing condominium management services for compensation or reward.[So, for “self-managed” condominiums – if the directors receive any compensation for the management services – the proposed regulations say that those directors must be licensed.]

XV.    Persons who only provide repair and maintenance services to the condominium corporation (which I think would exempt most superintendents, provided they don’t become involved in management activities, such as contracting or accounting on behalf of the corporation).

XVI.  Other persons (such as bookkeepers or office assistants) who are employed by a condominium corporation or by a licensed condominium manager, provided they promptly deliver any common expenses that they receive to the condominium corporation or to a licensed condominium manager.

So in summary, the licensing requirements will apply to the typical condominium manager.  In “special cases”, one or more of the above exemptions may apply.  If in doubt, I think it would be wise to check with the regulating authority.

“Condominium management provider” licences

Anyone who acts as a “condominium management provider” will have to apply for a condominium management provider licence (when the Management Services Act comes into force).

The Management Services Act defines “condominium management provider” as follows:

“condominium management provider” means a corporation, partnership, sole proprietor, association or other organization or entity that, on behalf of others and for compensation or reward or the expectation of such, provides condominium management services or holds himself, herself or itself out as such.

To me this means that anyone who enters into a contract with a condominium corporation, for condominium management services, is a condominium management provider and requires a separate licence for this purpose – in addition to the licensing requirements that apply to condominium managers.

[NOTE:  See my future blogs for more comments on the obligations of condominium management providers.]

Happy New Year from Davidson Houle Allen LLP

On behalf of everyone at Davidson Houle Allen LLP Condominium Law, we extend our very best wishes for a healthy and happy 2017.

This is of course the beginning for our new firm. We are proud of our many terrific years at Nelligan O’Brien Payne; and we now look forward to continuing the same tradition of excellence at Davidson Houle Allen LLP.

Welcome 2017!

Jim, Nancy, Christy

To contact us, please click here.