Changes Are Almost Here…Important Dates To Keep In Mind

We’ve been waiting for changes to the Condominium Act, 1998 for years. Five years to be exact.  On June 8, 2012, the Ministry of Consumer Services announced that the Government was to launch a “Condo Review Consultation.   On December 3, 2015, Bill 106, Protecting Condominium Owners Act, 2015 received Royal Assent.  Since then, we’ve been watching and waiting as the regulations have been drafted.

After much anticipation (and trepidation) the Phase I changes are coming into force.  Here are some important dates that you need to be aware of:

November 1, 2017:

• Phase 1 of the amendments to the Condominium Act, 1998, come into force. These changes address:

Information Certificates (to be issued by condominium         corporations)

Notices from corporations to owners and mortgagees

Required Disclosure by Directors and Director Candidates

Mandatory Training for Directors

New Procedures in relation to Meetings [If you have a meeting scheduled on or after December 10, 2017 see below for requirements that apply.]

Quorum and Voting

Voting Requirements for By-laws

Record-keeping and durations

Access to records

For more details, click here for Jim Davidson’s article in Condo Contact.

• The licensing provisions of the Condominium Management Services Act, 2015 (“CMSA”) come into force.

• The Condominium Authority Tribunal (CAT) will begin accepting applications. Disputes about records will be the first type of dispute that can be filed with the CAT.

• The Condominium Management Regulatory Authority of Ontario is to be designated as the administrative authority for the CMSA.

November 25, 2017:

Condo Act Primer hosted by Davidson Houle Allen Condominium Law –   Join us as we complete a walk-through of the Phase I Condominium Act amendments, with ample opportunity for questions. For more details, click here.

December 10, 2017

• If you have a meeting of owners scheduled on or after December 10, 2017 (that you did not provide notice of prior to November 1, 2017) you must comply with the new procedures in relation to meetings, including the Preliminary notice requirements and new prescribed forms (expected to be available soon!) for Meeting Notices and proxies.

December 31, 2017

• All Condominium Corporations must be registered with the Condominium Authority of Ontario and fees from September 1, 2017 to March 31, 2018, must be paid. What happens if you don’t register?  Review our blog to see.

• This is the final date for a Corporation to provide a Periodic Information Certificate (PIC) if the last day of the first quarter fiscal end or third quarter fiscal end is on November 1, 2017.

• A PIC must be delivered within 60 days of the end of the first and third fiscal quarter.  Be sure to review the fiscal end date for your first and third fiscal quarter and set reminders that your PICs are due within 60 days of those dates.

[Note: To see if your condominium qualifies for an exemption from producing information certificates, check out our blog respecting exceptions.]

February 1, 2018

• The remainder of the changes to the Condominium Management Services Act, 2015 come into force.

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Appeal Court Confirms Owner’s Obligation to Prove Case When Challenging Lien

In the recent decision Washington v. York Condominium Corporation No. 441, the Divisional Court confirmed that when a unit owner challenges a lien, it is the unit owner’s obligation to establish, on a balance of probabilities, that he or she was not responsible for the alleged damage.  In this case, the appellate judge set aside a lower court decision ordering a condominium corporation to return a chargeback to a unit owner.

This case concerned a plumbing blockage that affected the plaintiff owner’s unit, along with three other units, in the condominium.  The owner (and plaintiff) used his unit to prepare food for Caribbean cuisine dishes for restaurants.  Apart from the plaintiff, no other owners involved used their units in a way that produced food grease.

After discovering the blockage, the plaintiff contacted a plumber to assess the situation.  The same plumber was then hired by the property manager to clear the blockage.  The plumber’s notes revealed the caused of the blockage was from grease or hardened grease.  In addition, the plumber filmed the actual clearing of the blockage in which he states that the blockage is “grease and chicken grease”.

Based on the above information, the Board of Directors concluded that the plaintiff’s unit was the cause of the blockage, and demanded payment for costs incurred in the amount of $17,336.84.  Later, the condominium registered a lien against the plaintiff’s unit.  The plaintiff paid the above-noted amount and commenced an action claiming his unit was not the cause of the plumbing blockage.

The trial judge agreed with the plaintiff and rendered judgment in his favour.  The trial judge reasoned that, based on the totality of the evidence, the condominium failed to definitively prove that the source of the blockage was from the plaintiff’s unit.

The Divisional Court disagreed.  It confirmed that it was the plaintiff’s obligation to establish, more likely than not, that he was not the source of the plumbing blockage.  The Divisional Court also stated that the trial judge failed to consider key evidence: the audio of the above-noted video; and the reasoning of the Board of Directors to conclude the plaintiff was the source of the blockage.  The trial judge had discounted the reasoning of the Board of Directors on the basis that the members were “irresponsible” and “rather flippant” in their decision because their discussion of the subject was “laden with expletives”.  In other words, the members were excessively cursing.

The Divisional Court disagreed with the trial judge’s consideration of the evidence because it did not accord with the required degree of deference to which a Board of Directors of a condominium corporation is entitled, as outlined by the Ontario Court of Appeal.  Following the argument of our very own Christy Allen, the Ontario Court of Appeal in 3716724 Canada Inc. v. Carleton Condominium Corp. No 375 confirmed that courts should be careful not to usurp the functions of the boards of condominium corporations, especially when the Board has acted reasonably, honestly, and in good faith.

Overall, this decision serves as a reminder to condominium corporations that if an owner challenges a lien, it is the owner’s obligation – and not the condominium’s obligation – to establish that he or she was more likely than not, not the source of the alleged damage.  While the owner bears this onus of proof, the condominium is always open to lead evidence that will result in the plaintiff failing to establish his or her case.

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Examination of Records – Do Condominium Owners Need a Proper Reason?

The Courts have said that condominium owners may be required, in some cases, to provide a proper reason for their requests to see records of the corporation.  This is important in order to prevent unwarranted “fishing expeditions” and to otherwise prevent owners from requesting records for improper reasons (for instance, only for the purpose of pestering or bothering the Board).

For instance, in the recent case of Lahrkamp v. MTCC No. 932 (click here to read the decision: Reasons For Judgment of J. Prattas), the decision of the Toronto Small Claims Court included the following:

“In my view, the inevitable conclusion to be drawn from the plaintiff’s conduct and dealings related to his requests for access to records over the years was that the plaintiff was not genuinely interested in looking into certain specific aspects of the financial operations of the defendant but was either oblivious to the fact that he was wasting other people’s time and money or, more likely, that he took a certain delight in pestering the Board and others with his demands.”   

For some of the owner’s requests – for proxies and Board minutes – the Court established a protocol for the records to be made available to the owner, subject to the owner covering costs (set by the Court) for copying and redacting those records.

For other requests – for owners lists, General Ledgers, Accounts Receivable Ledgers, Bank Statements, Portfolio Valuation Summary Details and Transaction Summary Details – the Court rejected the owner’s requests, in some cases because the owner did not have a proper reason for the request.

This legal principle (the need for owners to have a proper reason for their requests to see records) is based upon Section 55 (3) of the Condominium Act, which currently says that owners can examine records of the corporation “for all purposes reasonably related to the purposes of this Act”.  (Requests for records are of course also subject to exceptions otherwise listed in Section 55.) 

Under the coming amendments to the Act, those words – “for all purposes reasonably related to the purposes of this Act” – will be removed from Section 55 (3).   However, there will be new regulations respecting access to Records.  The new regulations will include the following:

Examination of records

13.3 (1) The right to examine or obtain a copy of a record under subsection 55 (3) of the Act does not apply unless,

(a) an owner, a purchaser or a mortgagee of a unit requests to examine or obtain the copy and the request is solely related to that person’s interests as an owner, a purchaser or a mortgagee of a unit, as the case may be, having regard to the purposes of the Act; or

(b) a duly authorized agent of an owner, a purchaser or a mortgagee of a unit requests to examine or obtain the copy and the request is solely related to the interests of that owner, purchaser or mortgagee of a unit, as the case may be, having regard to the purposes of the Act.

(2) Despite subsection (1), a person entitled to examine or obtain copies of records under subsection 55 (3) of the Act is not required to provide the corporation with a statement of the purpose of the request.

So in summary, the new regulations (expected to come into force on November 1, 2017) say that an owner’s request to see records must be solely related to the owner’s interest as an owner…. having regard to the purposes of the Act  But the new regulations also say that the owner can’t be asked to state the purpose for the owner’s request.

It’s difficult to predict how the new regulations will be interpreted and applied by the Courts and/or the new Condominium Authority Tribunal, but here’s how it looks to me:

• Condominium corporations won’t be able to ask for a reason or explanation for an owner’s request for records.

• However, if it appears (based upon all of the surrounding circumstances) that the owner does not have a proper reason for a particular request, then I think that it may still be proper to refuse the request.

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Congratulations to the Newly Constituted Board of the CCI – Eastern Ontario Chapter

As many of our readers know, last night was the Annual General Meeting for the Canadian Condominium Institute – Eastern Ontario Chapter. We are pleased that Nancy Houle, partner with our firm, will have the opportunity to continue to service the condominium community as a member of the Board of the Canadian Condominium Institute – Eastern Ontario Chapter. 

With so many changes to the legislation governing condominiums happening in the coming months, the Canadian Condominium Institute is an instrumental player in engaging and educating the eastern Ontario condominium community. Congratulations to the newly constituted Board!

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What Happens If Your Condominium Corporation Does Not Register With the CAO?

At the CCI-EO Annual General Meeting last night, the following question was asked: What happens if a condominium doesn’t register with the Condominium Authority of Ontario?  We realized this morning that the question was not answered, so we wanted to post a quick blog to answer the question.

As you know, the changes to the Condominium Act, 1998 have created the Condominium Authority of Ontario (“CAO”).  All condominium corporations in Ontario must register with the CAO and pay assessments by December 31, 2017. [Note: Check out our previous blogs for more information about the requirement to register and the proposed fees.  Also, please refer to the CAO website for additional information.]

If your condominium corporation does not register or registers, but does not pay its fees, there are two main consequences:

• The Registrar may make a compliance order against the condominium corporation [Notice of this Order must be given to Owners]; and

• The condominium corporation will not be capable of maintaining a proceeding before the Condominium Authority Tribunal or a proceeding in a court in Ontario except with leave of the Court.

These consequences are severe and can have a wide range of implications for condominium corporations.  For example:

• It could affect an insurer’s right to assert a subrogated claim;

• It can affect the marketability of the condominium corporation; and

• It can affect the condominium corporation’s ability to manage the affairs of the corporation.

In addition to the foregoing, condominium corporations must make additional filings with the Registrar including various returns.  If the condominium corporation is not registered, and thereby does not file its returns, it can be subject to late fees.

In our view, it makes the most practical sense to ensure you register.

In order to register, your condominium corporation needs a unique code.  If your condominium has not yet received a unique invitation code, contact the CAO at

Stay tuned to Condo Law News for more blogs about amendments to the Condominium Act and upcoming events .

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