There’s been considerable dialogue across Ontario on the following: When Section 105 of the Condominium Act is amended, condominium corporations will no longer be able to pass Insurance Deductibles By-laws. But what about by-laws passed before then? Will those existing by-laws still be effective? Will they be “grandfathered”?
We’re pleased to advise that the province has offered some helpful additional comment on this issue.
The bottom line is as follows: No decision has yet been taken about the possible “grandfathering” of insurance deductibles by-laws passed before the new Section 105 comes into force.
As mentioned in my previous blog on this topic, the draft new Regulations say that Periodic Information Certificates (PICs) to be issued by condominium corporations will include reference to insurance deductibles by-laws. The province has confirmed that this doesn’t mean that insurance deductibles by-laws will necessarily be grandfathered. It’s just that Section 105 won’t be amended as part of the first phase of condominium legislation amendments – and the new requirements respecting PICs will be part of the first phase. The point is that existing insurance deductibles by-laws will certainly still be effective – at least until Section 105 is amended (some time in future) – and therefore will need to be mentioned in PICs (at least for the time being). That’s what the new Regulations are saying – nothing more.
However, the province has also said this:
“No decisions have been made as to whether there will be transitional rules and, if so, how they would apply, in relation to the coming into force of the amended s. 105 of the Act. …This is something we intend to consult on as part of later phases of regulation development.”
I think this means that existing insurance deductibles by-laws might be grandfathered.
[This might be achieved, for instance, by saying that the new Section 105 won’t apply in certain circumstances – or in other words that the new Section 105 will only be proclaimed in force for certain situations. For example, the current Section 105 might be allowed to continue in certain cases – for instance, where an insurance deductibles by-law has been passed prior to the date on which the new Section 105 comes into force.]
So again: Existing insurance deductibles by-laws MIGHT be grandfathered. We just don’t know.
What does this mean for condominium corporations?
Condominium corporations might wish to consider passing (or amending) insurance deductibles by-laws (pursuant to the current Section 105) for two reasons:
(a) Such by-laws will certainly be effective for the time being – until Section 105 is amended; AND
(b) Such by-laws also MIGHT be grandfathered (and therefore may continue to be effective even after the new Section 105 is proclaimed in force).
Here’s the added wrinkle: In order to pass such a by-law, we of course need the support of the owners of a majority of the units. It can be tricky to explain these insurance deductibles issues to owners (and to obtain their support). I wonder if this will be even more difficult if we’re required to tell owners that the by-law might only be effective for a limited period of time (i.e. until Section 105 of the Condominium Act is amended).
Stay tuned to Condo Law News for more blogs about amendments to the Condominium Act.