Can Owners Install Clotheslines Under the Green Energy Act?

In a previous blog, we mentioned that regulations under the Green Energy Act (the “Green Act”) will require some condominiums to report on their building’s energy and water consumption starting in 2019. In addition to this, some condominium corporations may also need to review their rules because of section 4 of the same Act.

Under section 4 of the Green Act, designated goods, services, and technologies meant to promote energy conservation will be allowed at condominiums even if a condominium by-law restricts it.

The provincial government has designated that clotheslines and clothestrees can be installed at an owner’s unit if:

• the installation does not impede safety or access to and from the building;

• it is installed in an area where the unit owner has exclusive use;

• it can be installed directly on the ground, on a deck/platform that is accessible to and no higher than the ground floor; OR on a step-stool or similar device that is directly on the ground or a deck/platform (that is described above).

For condominium corporations that have rules regarding this issue, a review may be necessary. The bottom line is that although unit owners are no longer prohibited from installing clotheslines and clothestrees (subject to the conditions in the Green Act), the corporation can pass a rule requiring unit owners to notify the corporation before installing a clothesline or clothestree. This could be a way for the corporation to ensure that whatever is installed does not damage another unit or hamper the use of the common elements.

Our readers in the condominium industry are welcome to contact our firm with any questions about this blog at blog@davidsoncondolaw.ca.

Things to watch for in 2018

Things to watch for in 2018:

  1. All Ontario condominium corporations now have until February 28, 2018 to register with the Condominium Authority of Ontario (CAO) and to pay their first “CAO assessment” (ie. $1 per vote per month, for the period covering September 2017 to March 2018). For more detail, go to the Condominium Authority of Ontario website.

  2. All condominium managers and management providers in Ontario must apply for their licences by January 29, 2018. For more detail, go to the CMRAO website.

  3. The province has prepared a draft new Code of Ethics for condominium managers. The Code of Ethics is expected to be finalized by February 1, 2018.  Furthermore, the proposed new complaints and discipline processes (for complaints against Ontario condominium managers) are expected to be effective beginning February 2018. Again, for more detail, go to the CMRAO website.

  4. The first phase amendments to the Condominium Act, 1998 are now in full swing. For more detail, see our previous blogs on point.

  5. Further amendments to the Condominium Act, 1998 are expected in 2018 and/or 2019. Some of the highlights are:
  • Fines are to be prohibited
  • Many chargebacks (payable by owners) will likely require a provision in the Declaration, to be added to the owner’s common expenses
  • Tendering will be necessary for some types of contracts
  • There will be new procedures for Requisitioned Meetings
  • Significant Changes coming respecting Directors to be elected by “non-leased owners”
  • Enhanced Disclosure Obligations for Declarants – including specifics about first year Reserve Fund budgeting. New Declarations also to say how Declarant arrived at common expense sharing
  • More detail in relation to claims for First-Year budget deficits (including detail respecting calculations for phases of Phased Condominiums)
  • Section 83 information (respecting tenants) to be provided in 10 days rather than 30 days
  • Owners to be notified of budgets and certain budget overages
  • Owner to be notified of specific additions to the owner’s common expenses; Owner then to have a prescribed procedure to challenge this (if desired)
  • Changes relating to Repair and Maintenance obligations, including new Definitions of Repair and Maintenance
  • Reserve Funds: Possible increase in length of study period; Additional permitted purposes; Specific Definition of “Adequate”; Expert opinion required if Reserve Fund balance falls below a certain prescribed amount
  • Common Element Modifications: Revisions to “minor changes” that fall within Board’s authority; Details about calculating the “cost” of a change
  • Insurance Deductibles: Insurance Deductibles By-laws to be ineffective; Will require an amendment to the Declaration; Existing by-laws MIGHT be grandfathered.
  • New prescribed Standard Unit Description (for condominiums that have no description)
  • Clarification respecting permitted investments (CDIC requirement)
  • Unreasonable noise prohibited (by the Act). Other unreasonable disturbances may also be prohibited by regulation
  • New prescribed mediation and arbitration procedures (where corporation has not established procedures by by-law)
  • Arbitration awards to be made public
  • Court orders (for compliance): Clarification of rights to winning party to costs
  • Increased penalties for Offences under the Act
  • TARION – Conversions of existing buildings (to new homes) to be covered by Tarion
  1. The province is considering new laws which would facilitate charging stations (for electric vehicles) on condominium properties. For more detail, go to Ontario’s Regulatory Registry.]

  2. The province has passed the Protection for Owners and Purchasers of New Homes Act, 2017 which introduces important changes to new home warranties and builder licensing in Ontario. The new legislation is not yet in force but may well come into force in 2018.  [Proposed regulations and related public consultation are still pending.]

  3. The City of Toronto has recently passed regulations respecting short-term rentals (in Toronto). Other municipalities in Ontario may follow suit.  Note, however, that such regulations are in addition to applicable provisions in a condominium’s governing documents.

  4. Some condominiums will need to track (beginning in 2018 or 2019) and report (beginning in 2019 or 2020) energy and water consumption. For more detail, see our blog on Obligations under the Green Energy Act.

  5. Cannabis is expected to be legalized across Canada, effective July 2018.  The province of Ontario has also passed legislation to further control and regulate cannabis use in Ontario.  [For more detail, go to the Ministry of the Attorney General’s News Release.]  Condominium corporations can also consider amending their own governing documents to further regulate or prohibit smoking (including smoking of cannabis) on the condominium property.  For more detail about “medical marijuana”, please see our blog. 

Happy New Year from Davidson Houle Allen LLP

As the new year begins, we wish all of our readers the very best for a happy and healthy 2018.

Today also marks the first anniversary for Davidson Houle Allen LLP Condominium Law.  This past year has brought many changes with the start of the our boutique condominium firm, and within the condominium industry as a whole. We would like to take this opportunity to thank each and every one of our readers, clients, colleagues, family and friends for your amazing support this past year as we navigated these changes. 

We are looking forward to another year of exciting challenges and change, and many terrific years to come.

Welcome 2018!

Your DHA Team

Procrastinators Rejoice! Extension on Filing Deadline

Has your condominium corporation registered with the CAO and paid the required dues yet?  If not, you’re in luck, as the CAO has announced an extension of the December 31, 2017 filing deadline.

Condominium Corporations now have until February 28, 2018 to be registered with the Condominium Authority of Ontario and pay the required fees (from September 1, 2017 to March 31, 2018).

What happens if you don’t register?  Review our blog to see. [Note: Your condominium corporation must be registered in order to participate in any proceedings before the Condominium Authority Tribunal.]

Some Condominiums Will Have New Obligations Under the Green Energy Act

A new regulation under the Green Energy Act will require condominium corporations in buildings that are at least 50,000 square feet and have more than 10 units to report on their energy and water use.

The timelines are as follows:

• For condominium corporations in buildings that are at least 100,000 square feet, the first report is due on July 1, 2019;

• For condominium corporations in buildings that are at least 50,000 square feet, the first report is due on July 1, 2020.

All areas inside the building, including the common areas, should be included in the gross floor area. Exterior and open-air spaces, such as parking lots, are exempt. If the corporation encompasses two or more structures, then the gross floor area is the total of the square footage of all the structures.

A corporation will need to provide information on the gross area of the building, the energy and water use in the building, and other information as set out in “Ontario’s Large Building Energy and Water Reporting and Benchmarking Requirement: Data Elements” document. The report must cover details on the previous year. For example, a report that is due on July 1, 2019 will contain information on water and energy consumption from January to December 2018.

The reports are submitted through Energy Star’s Portfolio Manager website. To register an account, the assessment roll number, property code, and an Ontario Energy Water Reporting and Benchmarking ID is required. Property codes for specific building types can be found on Ontario’s Ministry of Energy website while the Energy Water Reporting and Benchmarking ID can be obtained from the Ministry of Energy.

Once the corporation is in its second year of reporting, information about energy and water consumption at the building will be published in the Ministry of Energy’s data catalogue.

For more information, check out the Ministry’s Guide to Energy and Water Reporting here.

Survey for ACMO CCI-EO Conference

The ACMO/CCI-EO organizing committee is already hard at work putting together the  ACMO/CCI-EO 6th Annual Spring Conference.

In preparation for this event, the organizing committee would be grateful if our readers could please take 1 minute to complete this survey.  The survey will help the committee tailor the event to best meet your needs.

As many of our readers know, the Annual Spring Conference brings together industry experts, managers, and directors around condo-centric topics. It is an amazing opportunity to learn but also to network with one another.  With all of the changes to the Condominium Act and with the new mandatory licensing of managers, this year’s conference is going to be a big one!

If you feel inclined,  please forward this survey to your colleagues, managers, directors, or condominium owners. We hope to see them all at the conference.

You can email any questions you may have to info@cci-easternontario.ca.

Helpful Recent Decision About Condominium “Changes”

When a condominium corporation makes a “change” – which essentially is something that goes beyond maintenance and/or repair – involvement of the owners may be required under Section 97 of the Condominium Act.

But the required involvement of the owners (in relation to a change) also depends upon the estimated cost of the change.

For instance, under Section 97 (2) (c) of the Act, if the estimated cost of a change, in any given month, is below a certain threshold, the Board has the mandate to proceed (without owner involvement).

On the other hand, under Section 97 (6) of the Act, if the estimated cost of a change is greater than 10% of the corporation’s annual budget, the change must be treated as “substantial” requiring a 2/3 vote of the owners.  If the estimated cost lies somewhere between the threshold in Section 97 (2) (c) and 10% of the annual budget, the Board can decide to treat the change as non-substantial (requiring notice to the owners, with an opportunity for owners to requisition a meeting to consider the proposed change by ordinary vote).

Here’s the point:  The estimated cost of a proposed change is a critical ingredient in determining if, and how, all owners must be involved in the decision to proceed with the change.

 That leaves the following question:  How does one calculate the estimated cost of a change?

In the Zordel case, the corporation had an existing agreement for bulk cable television service (for all units) – with the related cost added to the common expenses.   The Board decided to enter into a new agreement that provided BOTH bulk cable AND internet services.  The Board did not involve the ownership in this decision.

Certain owners objected.  They said that the new Agreement required owner involvement – that the Board couldn’t go ahead on its own.  And they said that – based on the cost of the new Agreement – there was a “substantial change” (requiring a 2/3 vote).

The Court said:

• Even though new technology was being introduced for the cable television service, there was no change to that service. The only change related to the new internet service.

• The cost (of the change) was therefore the cost for the new internet service. The cost of the cable television service did not figure into this calculation, because it was not part of the change.

• The cost was therefore below the threshold in Section 97 (2) (c). As such, there was no need for the Board to involve owners in the decision.

Further notes:  The threshold in Section 97 (2) (c) will change (increase) when amendments to that section come into force (expected sometime over the next two years).   But the amendments to that section will also introduce some additional criteria for the Board to consider (for that section to apply).  So, the law will change somewhat in these areas.  But that shouldn’t change the basic principle expressed in the Zordel case (namely, that the cost of a change is not the cost of the entire transaction…..but only the cost of that part of the transaction that constitutes a change).

We’re also expecting that the “cost” will be further defined in a future phase of new Regulations….but I would similarly expect that the principles in the Zordel case will be confirmed in those new Regulations. We’ll have to see.

Catch Our Lawyers at the ACMO/CCI-T Condominium Conference in Toronto!

November 10 marks the start of the two day ACMO/CCI-T Condominium Conference, happening at the Toronto Congress Centre.

If you are at the conference, be sure to catch Jim Davidson and Nancy Houle, who will both be speaking at the Conference:

  • Nancy Houle will be a panel member during session 3C, “A Professional Too Expensive?  Try an Amateur!” at 4:00 pm on Friday afternoon
  • Jim Davidson will be a panel member during the Closing Session “Case Law Update” at 1:30 pm on Saturday afternoon

The New Condominium Authority Tribunal Rules Are Out!

Here are some of the highlights of the new CAT Rules:

For every dispute, a five-step process is contemplated:

I. The Process

Step 1:  Filing [CAT Fee:  $25.00]

Step 2:  Joining (ie. where the Respondent joins the case) [No CAT Fee]

Step 3:  Negotiation (an on-line dialogue between the parties, all within CAT’s on-line system) [No CAT Fee]

Step 4:  Mediation (where a mediator joins the dialogue, to try to help the parties settle) [CAT Fee:  $50.00]

Step 5:  Tribunal Decision [CAT Fee:  $125.00]

II. Representation

The CAT Rules say that parties can be represented in the process (if they wish) by:

(a) a lawyer or paralegal licensed by the Law Society of Upper Canada; or

(b) a person who is exempt from the Law Society’s licensing requirements. This includes a friend or family member who is helping the User without receiving any fee, or a licensed condominium manager.

III. Costs

In terms of costs, the CAT Rules state as follows:

Recovery of fees and expenses

The Tribunal may order a User to pay to another User any reasonable expenses or other costs related to the use of the Tribunal, including:

(a) the Tribunal’s fees paid by the other User;

(b) the other User’s expenses or other costs that were directly related to that User’s participation in the Tribunal’s process; and

(c) the other User’s expenses or other costs that were directly related to a User’s behaviour during the Tribunal process that was unreasonable or for an improper purpose, or that caused an unreasonable delay.

 Legal fees generally not recoverable

The Tribunal will not order one User to pay to another User any fees charged by that User’s lawyer or paralegal, unless there are exceptional reasons to do this.

In summary, the “losing party” generally won’t be ordered to pay the “winning party’s” legal or paralegal costs (if any).  And this will of course be a growing issue as CAT is given increased jurisdiction (over more and more types of condominium disputes) in the years ahead.

Some parties may understandably decide, as a result, not to involve lawyers or paralegals in many CAT disputes.  For condominium corporations, one or more Directors or Officers may sometimes be comfortable handling the process.  In other cases, the property manager may be an excellent representative. [NOTE: This may however be an “extra service” for the manager – perhaps entitling the manager to a reasonable, extra fee (which would likely not be recoverable in the dispute).]

But some condominium corporations may still be most comfortable having legal representation in these disputes – despite the fact that the costs will generally not be recoverable.  [Also:  In some instances, the case precedent may be an important factor for the condominium corporation.]

With this in mind, we are planning to train one of the members of our team (whether a condominium law paralegal or junior lawyer) to assist our clients with CAT disputes…in order to make this service as economical as possible for our clients.  That way, we’ll be ready to assist, at reasonable cost, if we are ever asked to do so.

One final comment:  In our view, the condominium corporation’s liability or D & O liability insurance likely would not respond (or provide coverage) in most CAT disputes.  But this might depend upon any specific allegations in a given case.  So, insurance coverage is always something to keep in mind.

IV. The CAT Rules also cover various other matters relating to the CAT process, including:

(a) Methods of Communication, primarily involving use of CAT’s on-line system (or alternative methods of communication approved by CAT);

(b) Presentation of evidence;

(c) Delivery of relevant documents;

(d) Witnesses; and

(e) Public Access.