Licensing of Condominium Managers – What information (about licensees) will be available to the public? (Blog No. 8 in a series)

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

In this Blog No. 8, I explore the following question:  What information (about licensees) will be available to the public?

What information (about licensees) will be available to the public?

The Management Services Act says that the Registrar will make certain information respecting licensees available to the public – namely the names of the licensees and other information prescribed by the Regulations.

The draft Regulations contain a long list of information that is to be made available to the public, including the following:

Licensee’s Name and License Details

I   The licensee’s name.

II   Details about the licence, including the licence number, class of licence (in the case of a manager), date of expiration and any licence conditions.

Business Contact Information

III   In the case of a management provider, the provider’s business address, email address and business phone number (if known by the Registrar) and also the name of the principal condominium manager.

IV   In the case of a manager employed by a management provider, the business address, business email address and business phone number of the management provider (if known by the Registrar).

V   In the case of a manager employed by a condominium corporation, the manager’s address for service, and the condominium corporation’s name (if known by the Registrar).

Licence Refusals, Revocations, Suspensions, Conditions, Cancellations, Non-Renewals

VI   If applicable, the fact that the Registrar has proposed to refuse, revoke, suspend or impose conditions on the licence.

VII   If applicable, the fact that the licence has been cancelled at the licensee’s request, and the date of cancellation.

VIII  The names of licensees or former licensees where the Registrar has refused to renew the licence or has revoked the licence.

IX    The names of licensees where the Registrar has suspended the licence.

Charges and Convictions

X    Details of any offences charged (based upon information laid by an employee of the administrative authority) against a licensee, former licensee or director or officer of a management provider; and

XI   Details of any conviction in relation to any such charges.

Discipline Committee Orders and Appeals Committee Orders

XII   Details in relation to any Discipline Committee orders against a licensee if it was determined that the licensee contravened the Code of Ethics and if the licensee did not appeal the order.

XIII  Details of any Appeals Committee orders against a licensee, if the order of the Discipline was upheld or the Appeals Committee found that the licensee contravened the Code of Ethics.

Other Information

The draft regulations say that the Registrar can make other information (that becomes known to the Registrar) available to the public, if the Registrar is of the opinion that this information would protect the public.  However, the draft regulations also say that information will not be made available to the public if “it is financial information relating to a person or the business of a person and the person could reasonably expect that the information be kept confidential”.

Publication Time Periods

The draft Regulations also set minimum time periods for the different items of information (listed above) to be available to the public.

Method of Publication

The draft Regulations say that the information is to be published by posting it on the administrative authority’s website and by “at least one other manner that the registrar considers appropriate”.

No Bulk Disclosure

Finally, the draft Regulations say that the information will not be disclosed in bulk to any person except as required by law or to a law enforcement agency.

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

Proposed Regulatory Changes: Condominium Authority of Ontario (CAO), Condominium Management Regulatory Authority of Ontario (CMRAO) and the Condominium Authority Tribunal

We now have more information available regarding the proposed Regulatory changes to introduce the Condominium Authority of Ontario (CAO) and the Condominium Management Regulatory Authority of Ontario (CMRAO) and dealing with some aspects of the Condominium Authority Tribunal.

  • Designation of two Administrative Authorities:

The Ministry of Government and Consumer Services is proposing regulations to support the designation of the Condominium Authority of Ontario (CAO) and the Condominium Management Regulatory Authority of Ontario (CMRAO, which designations are expected to be effective in mid to late 2017.

Condominium Authority of Ontario (CAO) as the condominium authority under the Condominium Act, would be responsible for administering parts of the Condominium Act and managing and overseeing the Condominium Authority Tribunal; and,

Condominium Management Regulatory Authority of Ontario (CMRAO) would be responsible for administering the CMSA (Condominium Management Services Act).

  • Establishment of the Condominium Authority Tribunal:

The proposals also support the establishment of the Condominium Authority Tribunal and identifies the first set of condominium disputes that the Tribunal will have jurisdiction to resolve (relating to s. 55 records), and sets out how the Tribunal will make its orders available to the public.

The Ministry is receiving comments from the public up to April 10, 2017.

Stay Tuned for our next blog about the exciting changes to the Act and the Regulations.

Summary of Draft Regulations under the Condominium Act – Director Training

As we noted in a previous blog, the province has published a Summary of the first phase of the proposed new Regulations under the Condominium Act, 1998, as amended (“The Amended Act”). This is the first in a series of blogs that we will be preparing in relation to the proposed changes.

In this Blog No. 1, I explore what the Summary has to say about Required Training for Condominium Directors.

Section 29 of the Amended Act says that a condominium director is disqualified from the Board if he or she fails to complete “prescribed training within a prescribed time”.

The Summary does not yet say what sort of training will be required. The Summary simply says that the new Condominium Authority will designate the training course(s) that directors will be required to take (or if there is no Condominium Authority, the Minister of Government and Consumer Services will designate the course(s)).

The Summary also says:

I. The cost of the training would be covered by the condominium corporation.

II. The required training would only apply to directors elected or appointed after turnover.

III. The training requirement is expected to come into force on July 1, 2017 (provided the required course(s) have been designated by that time).

IV. The required training would only apply to directors elected or appointed after the new training requirements come into force. [I believe that being “elected” would include being “re-elected”.]

V. New directors would have six months (following their election or appointment) to complete the required training.

VI. The training would be good for seven years. Thereafter, a director would have to “re-take” the training if he or she is again elected or appointed to the Board.

VII. The Condominium Authority will keep records of the persons who have completed the training. A condominium corporation would have the right to see those records respecting the corporation’s own directors.

VIII. A director who completes the training would also be required to send evidence of such to his or her condominium corporation(s).

Stay tuned for our next blog in the series which will review what the Summary has to say about “information certificates” that the condominium is required to send to owners (and mortgagees).

Is your Self-Managed Condominium Corporation exempt from the new licensing requirements under the CMSA? What is the meaning of “compensation or reward, or the expectation of such”

We will be publishing some blogs to address some of the pertinent issues that may affect self-managed Condominium Corporations under the new Condominium Management Services Act, (CMSA) when it comes into effect. This Blog discusses the meaning of “compensation or reward, or the expectation of such” under the exemption from licensing for directors .

As described in our last blog dealing with the impact of the CMSA on self managed condominiums, section 35 of the CMSA  permits exemptions from licensing requirements.  Section 2 of the Draft Regulations, provides the following exemption for directors from the requirement to be licensed:

14.  A person who is elected or appointed as a director of a condominium corporation under the Condominium Act, 1998, including a director who receives compensation pursuant to a by-law made under clause 56 (1) (a) of that Act, unless the person is providing condominium management services for compensation or reward or the expectation of such.

 For many Boards, the wording of this exemption begs the question: What constitutes “compensation or reward” that might disqualify a director or board from the application of this exemption?

In our view, the key question is:  Is / are the director(s) being compensated for providing management services?

Given the wording of section 35, the exemption is clearly intended to apply even if the director is receiving compensation pursuant to a bylaw passed pursuant to the Condominium Act.  [The Condominium Act of course requires that compensation to be paid by a condominium to a director be approved by bylaw.]   In other words, the receipt of compensation or reward, on its own, is not enough to disqualify a director from the exemption.

In our view, given the wording of section 35 of the CMSA, the exemption is meant to include all directors – whether or not they receive compensation – as long as the director is receiving the compensation (or reward) for their service on the Board, and not for otherwise providing general management services.

Boards who do receive compensation or reward, pursuant to a bylaw or otherwise, should therefore not be concerned that they will not be covered by the exemption simply because they receive some form of compensation or reward (including monthly or annual compensation paid to directors and rewards such as gifts for service, or Board dinners).

In our view, the requirement for licensing will only apply to a director where the director is receiving compensation or reward for management services that are provided above and beyond the role of director.

  • While this would likely have to be assessed on a case by case basis, it seems to us that one would generally expect to see a particular director stepping up to provide managerial type services, and to be compensated more (than the other directors) for providing those services.
  • It also seems to us that one might also expect to see some kind of agreement or Board resolution clearly indicating the intention to compensate for management work – not just a small “reward” for the different responsibilities as Directors.

Stay tuned for our next blog on self-managed Corporations, and the Condominium Management Services Act.

 

Summary of Proposed Regulations re: Governance (amending the Condominium Act Regs.) now available to review

We are excited to inform you that a Summary describing the first phase of proposed regulation changes has just become available for review.

The actual draft regulations will be posted  by the Ministry as soon as they are available; we assume that this will be after the public has had an opportunity to consider the Summary.

The  Topics addressed, and their anticipated date of coming into force, are related to Governance, as follows:

  • Communications from Condominium Corporations to owners/mortgagees: “Information Certificates”, record of owners, notice to owners, (July 1, 2017)
  • Mandatory Disclosure and Training for Directors: qualifications, directors training, disclosure obligations for candidates and directors,  (July 1, 2017)
  • Meetings and Voting: notices of meetings, quorum,  voting, proxies, board meetings (July 1, 2017)
  • Record Retention and Access: retention periods, method of retention, access to records, exemptions, penalties (Fall 2017)

The Ministry  is seeking input on these proposed amendments (these are amendments to the existing Condominium Act Regulation O. Reg 48/01.) Comments received by the Ministry will be considered during the preparation of the final regulations.  The government is accepting comments until March 30, 2017.

Stay tuned to our blog as we will be providing comments and considerations regarding these exciting proposed amendments!

Is your self-managed Condominium Corporation exempt from the new licensing requirements under the Condominium Management Services Act?

We will be publishing some blogs to address some of the pertinent issues that may affect self-managed Condominium Corporations under the new Condominium Management Services Act, when it comes into effect. This Blog discusses how self-managed Corporations may be exempted from the licensing requirements.

Condominium Corporations that are ‘self-managed’ are Corporations that have decided not to enlist the services of a paid property management company. Rather, the Corporation (typically the Board of Directors) performs the work associated with the day to day operations of the Condominium.

The new Condominium Management Services Act, 2015 (CMSA) makes obtaining and holding a Management License a requirement for anyone performing ‘Condominium Management Services’. The question is, how will this new requirement affect ‘self-managed’ Corporations, and the individuals at these Corporations, who perform the management duties?

Under the CMSA, someone who provides any of the following services, to or on behalf of a Condominium Corporation, is performing “Condominium Management Services”:

(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;

The CMSA states (Section 34.1) that no person shall provide Condominium Management Services unless they are licensed as a condominium management provider or as a condominium manager. However, there are exemptions to this requirement.

Section 35 states, “Despite Section 34, a licence shall not be required in respect of the provision of condominium management services by the persons or in the circumstances that are prescribed”. Therefore, under some circumstances, an individual may be able to perform Condominium Management Services and not have to be licensed.

The draft Regulations under the CMSA prescribe a list of exemptions to the licensing requirements. For the purpose of this blog, we highlight the exemption that relates to directors.

Exemption for Directors

For the purposes of section 35 of the CMSA, persons are not required to hold a licence if they are a director and are not remunerated (or don’t expect to be remunerated) for providing Condominium Management Services, as follows:

A person who is elected or appointed as a director of a condominium corporation under the Condominium Act, 1998, including a director who receives compensation pursuant to a by-law made under clause 56 (1) (a) of that Act, unless the person is providing condominium management services for compensation or reward or the expectation of such.

Therefore, the answer to whether or not a self-managed Corporation must have a licensed person performing Condominium Management Services, depends on whether the Condominium Management Services are being provided by a director or another individual and, if it is a director, whether or not there is compensation, reward, or the expectation of such, in the provision of those services.

Stay tuned for our next blog, which will discuss the meaning of “compensation or reward, or the expectation of such” and provide suggestions on how a self-managed Condominium Corporation may be able to take steps to avoid coming within the scope of the licensing requirements.

 

Licensing of Condominium Managers-What does it mean to have an address for service in Ontario? (Blog No. 7 in a Series)

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

In this Blog No. 7, I explore the following question:

What does it mean to have an address for service in Ontario?

The draft regulations – Section 30 – state that “a licensee shall maintain an address for service that is in Ontario”.

Furthermore, the Management Services Act – Section 45 – says that licensed managers and management providers must notify the Registrar of any change in the licensee’s address for service (within five days).

Section 73 of the Management Services Act states as follows:

Service
73. (1) Any notice, order or request is sufficiently given or served if it is,
(a) delivered personally;
(b) sent by registered mail; or
(c) sent by another manner if the sender can prove receipt of the notice, order or request.

Deemed service
(2) If service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person’s control, receive the notice, order or request until a later date.

Exception
(3) Despite subsections (1) and (2), the Tribunal may order any other method of service it considers appropriate in the circumstances.

Based on the foregoing, my conclusions are as follows:

I.     The address for service must be a mailing address, in Ontario. [An email address would not be sufficient, because it must be an address that is capable of receiving ordinary / registered mail.]

II.     However, I don’t see any requirement that the licensee reside at the particular address. [I say this because service can clearly be effected by registered mail.]

In summary, I don’t see any requirement that licensees reside in Ontario.  However, they must maintain a mailing address, in Ontario.

It also appears to me that the licensee must plan to regularly check the mail that is coming to the particular mailing address.  In other words, the licensee must have a genuine intention to use the mailing address in the usual manner (for receipt of mail).  I think the licensee must also have a genuine intention to cooperate in relation to delivery of items by registered mail – that is, by confirming receipt of the mailed item (in accordance with the protocols for registered mail).  I think that this is implied when a licensee provides the Ontario address for service (because this is done on the understanding that items may be “served” by registered mail to that particular address).

I could put it this way:  In my view, a licensee could not “neglect” or “ignore” the mail coming to the particular address, and then attempt to claim that service was not effective due to a “cause beyond the person’s control”.

So in summary, it appears to me that the licensee would need to diligently accept and review mail arriving at the Ontario mailing address that is provided to the Licensing Registrar; and the licensee would also be expected to reasonably co-operate in relation to registered mail to that address.

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