CCI Celebrates 35 Years!

June 13th, 2017

CCI celebrates 35th anniversary and new chapter

Friday, May 26, 2017

The Canadian Condominium Institute (CCI), a national, independent non-profit organization that deals exclusively with condominium issues, is celebrating its 35th anniversary this year.

Established in 1982 with five chapters, CCI’s objectives include to create and curate content, educate, advocate and facilitate community. CCI assists its members using education, information dissemination, publications, workshops, conferences and technical assistance. It also encourages and provides objective research for practitioners and government agencies regarding all aspects of condominium operations, lobbies provincial and federal governments for improvements to legislation, and advocates for higher standards in all services to the condominium client.

CCI will be celebrating its 35th anniversary all year. Some of the features of the anniversary and associated events it has planned include the Great Canadian Condo contest, an online contest that will be launching soon; two Leaders Forums for CCI chapter leaders in Fredericton and Thunder Bay; a new logo celebrating its 35th anniversary; a social media campaign featuring the 150 greatest condo moments, which will be launched on June 1; and an Anniversary Awards Dinner, which will be held in Thunder Bay in October 2017.

The latest CCI chapter, Grand River, will be the Institute’s 17th chapter. The region that is currently serviced by the Golden Horseshoe chapter has seen rapidly growing membership. As a result, effective July 1, 2017, that region will be serviced by two chapters: the new Grand River chapter, which has 435 members, and the existing Golden Horseshoe chapter.

https://www.reminetwork.com/articles/cci-celebrates-35th-anniversary-new-chapter/

Sharing Email Addresses of Owners

June 21st, 2016

Are Condo owners Entitled to Access the Email Address List of Other Owners?

Condo corporations are increasingly asked to disclose to condo owners the email addresses of the other owners.  Indeed, a condo owner wishing to requisition a meeting of the owners or wishing to otherwise communicate with other owners finds email communications to be far more practical than having to mail a paper letter.  After all, since the corporation is often communicating with its owners by email, why should all owners not have access to this same list?

In a recent Ottawa case, a judge ruled that condo owners are not entitled to access the email address list of other owners.

Pursuant to section 55 of the Condo Act, owners have a right to examine and obtain copies of the records of the condominium corporation. Many courts have indicated that, on this front, the purpose of the Condo Act is to provide owners with an open book into the affairs of the corporation.  However, this right to access corporation records must be balanced with the owners’ expectation of privacy. Indeed, section 55(4) specifically provides that owners are not entitled to access records relating to someone else’s unit.

So, how is an owner to exercise his or her right to requisition a meeting of the owner if he or she is unable to communicate with them? One of the first things the requisitioning owners request from the condominium corporation is a list of name and address of the other owners. The question then becomes: should the corporation also provide the email addresses?

Deputy Judge Whitehall ruled that the corporation’s obligation to disclose the owners’ address of service does not apply to email but only apply to the postal address.  He also agreed with prior decisions that releasing email addresses raised privacy concerns.

We agree. In fact, we even question whether providing a matching of the names and owner addresses also raises such privacy concerns.  While some of this information may otherwise be publicly available, we question whether it is wise for a condo corporation to disclose this information to others, especially considering the exception under section 55 of the Condo Act and the increasing privacy expectation in today’s society. It may be sufficient to simply provide the requisitionists with the postal addresses for service, without providing the names.

These dilemmas always require a delicate balancing act. It is best to involve your corporation’s lawyer early to avoid headaches.

 

http://condoadviser.ca/2016/06/are-condo-owners-entitled-to-access-the-email-address-list-of-other-owners/condo-law-blog-Ontario

Enforcing Payment of Shared Facilities Costs

October 27th, 2015

22 Oct 2015- Condo Reporter

Many condominium corporations share facilities with other condominium corporations or other properties. Usually there is an agreement in place which obligates all parties that use or benefit from the shared facilities to contribute to the costs of operating and maintaining them in accordance with the proportions set out in the agreement.

In a recent case, Middlesex Condominium Corporation No. 229 v. WMJO Ltd., MCC 229 had to commence legal proceedings to collect a portion of the costs of operating and maintaining a private sewage pumping system that also serviced three other condominium corporations and a housing cooperative.

The private sewage system was located on the lands of MCC 229, which was a 43-unit townhouse condominium. The sewage system also serviced a total of 42 townhouse units in three other condominiums and 71 units in a housing cooperative. All of the units of the three other condominiums were owned by WMJO Ltd., the developer of those three condominiums. The developer of MCC 229 and a prior owner of the other three condominium properties had entered into a joint use and maintenance agreement, which included a provision that the each phase of the townhouse project would “be responsible for a proportionate share of the costs and expenses of maintenance, repairs and/or replacement of the joint facilities”. This agreement was registered on title.

For more than ten years, WMJO, through its property managers, paid invoices from MCC 229 relating to the sewage system, although late payments had been an ongoing issue throughout this time. All payments stopped after 2006. The principal of WMJO took the position that it had never agreed to pay any expenses related to the sewage system and that any payments made in the past were paid in error by its property managers.

MCC 229 sued the three condominium corporations, WMJO and WMJO’s current property manager. The court declared that the property manager had no liability to MCC 229 as the manager was acting in its capacity as manager for WMJO. The case against the three condominium corporations was dismissed as they were not signatories to the joint use agreement. Although the joint use agreement was registered on title, positive covenants do not run with the land and therefore the obligation to contribute to the shared costs of the sewage system could not be enforced against any subsequent landowners.

WMJO was also not a party to the agreement that was registered on title. However, the court concluded that WMJO was responsible to pay for its share of the costs on the basis of unjust enrichment. MCC 229 had successfully established the three elements necessary for recovery on the basis of unjust enrichment:

  • WMJO was enriched, as it saved considerable expense by connecting into MCC 229’s sewage system rather than having to construct one to service the units it owned.
  • MCC 229 suffered a corresponding deprivation as it was operating and maintaining a sewage system that was considerably larger than required for its 43 units.
  • There was no juristic reason to permit the enrichment, such as, for example, an intention to make a gift or where a statute denies recovery.

The court rejected WMJO’s position that MCC 229 was seeking to enforce an unenforceable positive covenant by pursuing a remedy for unjust enrichment. Because the positive covenants in the joint use agreement were not enforceable, if it were not for the remedy of unjust enrichment, it would be unfair for WMJO to get the benefits from the sewage system without having to incur any expenses for it.

Most shared facilities agreements are entered into by the developer early on in the development of the project and before all of the condominium corporations in the project have been created. In order to ensure that the condominium corporations will be responsible for the positive covenants, most developers will include in the condominium declaration an obligation to assume and become a party to any cost sharing agreements. In addition, before control of the condominium corporation is turned over to the unit owners, the developer-controlled condominium corporation will enter into the necessary assumption agreements.

 

For Article, in its original format, click here.

Dog Restrictions and Disabilities

June 24th, 2015

Michelle Kelly of Kelly Sutherland LLP writes a Ontario Law Blog (http://ontcondolaw.com)  Below is an article published on her website on June 24, 2015.

I am regularly asked by clients to assist them with enforcement of dog restrictions (i.e. weight limits) or complete prohibitions in a condominium’s documents. Sometimes an owner will claim that he or she needs the dog because of a disability. The mere mention of the word (disability) immediately increases the anxiety felt by the board and manager. It seems many owners are aware of this anxiety-inducing affect and use the word without regard for its actual legal meaning. There was a recent case where an owner did just that, but the condominium refused to back down without adequate evidence of her disability.

Here are the facts. A woman moved into her spouse’s unit with a dog that weighed over 25 lbs. Both the woman and her spouse were aware of the 25 lb. weight restriction. Neither of them sought permission or accommodation from the condominium until they failed in their effort to keep the dog as a therapy dog for the woman’s work with autistic children. The condominium rejected their request claiming the dog had to be a service animal for a resident, not the woman’s work. The woman then obtained letters from a doctor (who was not her regular physician) that suggested that she required the therapy dog because of “emotional needs”, “struggles with stress and past abuse”, and as a better alternative to medication. The condominium asked for permission to speak with the doctor and advised the woman that according to the Human Rights Code she had an obligation to establish a disability and that the dog was required to assist with the disability-related needs. The woman refused to provide the condominium with permission to speak with the doctor. As a result, the condominium rejected her request for accommodation on the basis that there was no objective medical evidence that supported a disability, her needs, and how the dog addressed her needs. The couple refused to remove the dog.

The condominium brought an application to the Superior Court of Justice for an order requiring the couple to remove the dog from the property.

The judge found that the couple had initially acknowledged that the dog was over the 25 lbs. weight restriction, but changed their story later when the condominium rejected their request to keep the dog. The judge was satisfied that the dog weighed over 25 lbs.

The judge went on to review the Human Rights Code, and the applicable case law. The judge confirmed that there is an onus on the person seeking accommodation to establish a prima facie case of discrimination, which in this case required the couple to establish that the woman has a disability within the meaning of the Code and that the weight restriction adversely affects her because of her disability. If a prima facie case is established, the focus shifts to whether the condominium has fulfilled its duty to accommodate her to the point of undue hardship.

The judge reviewed the case law on the term “disability”, which includes mental impairment or mental disorder. However, the judge confirmed that a bare assertion of pain or anxiety is not a sufficient basis to allege a mental disability. The judge concluded that “there is no evidence before this court that [the doctor’s] generic labelling of [the woman’s] diagnosis as a ‘medical condition’ falls under the definition of a ‘disability’” within the meaning of the Code. The judge went on to say that even if the couple had established a disability, there was not satisfactory evidence to support her assertion that the dog was related to her disability-related needs. The judge also stated that although not required given his other findings, he would have found that the condominium had fulfilled its duty to accommodate the woman. The condominium asked for a release to allow it to talk to her doctor, but she refused. The woman failed to cooperate in the accommodation process and the condominium could not be blamed for her refusal.

The judge ordered the dog be permanently removed from the property and granted an order allowing the condominium to inspect the unit on 8 hours notice to ensure the dog had been removed. The costs of the matter have not been determined.

This case is a good reminder that condominiums are entitled to request evidence of the disability, the needs, and how the requested accommodation (i.e. dog) fulfills those disability-related needs. The condominium is not obliged to accept a bare assertion from an owner.

 

Watch for Ticks!

May 22nd, 2015

A Dangerous Tick Season has Commenced

It is expected to last from now until late October in Central Ontario

Warnings have been issued across Canada in multiple jurisdictions.

“It’s wise to talk simple precautions before being outside in grassy, bushy or treed areas, and check yourself and your children and pets for ticks afterwards,”

“If any ticks are found, they should be carefully and promptly removed.” are a few of the warnings.

Lyme  disease which is often a risk attached to tick season, is more common in parts of southern Canada and the U.S. where specific tick populations such as Deer Ticks reside.

Wearing pants and long-sleeved shirts is one of the best preventive measures. Additionally, pull your socks over your pant legs when walking through tall grass. Insect repellent containing DEET or Icaridin can be useful in these situations. Make sure to wear light colours so ticks are easily visible. Finally, do a “full body” tick check daily on yourself, your children and pets.

Situational awareness is critical and Huronia/Georgian Bay Region is a highly susceptible area.

Stay Safe

For more information, visit helppestcontrol.com

Our Condolences

April 1st, 2015

Dickenson Management would like to extend our deepest sympathies to Doug Simpson-Dietrich and family, after the passing of Kevin Dietrich.  Kevin worked in the Condominium industry in many roles and will be missed by many.

AGM attendance is necessary!

March 24th, 2015

Annual General Meetings are held for you, the owners.  Their purpose is to educate the owners, elect the Board of Directors, and address any concerns owners may have.  A minimum of 25% of unit owners are required to attend to attain quorum.  Quorum is the minimum number of voting members that must be in attendance at a meeting for that meeting to be regularly constituted.  Without a quorum, the meeting is never properly constituted; it cannot transact business validly.  Any business transacted where a quorum is not present is null and void except for one item and that is a motion to adjourn.

So please, attend your yearly AGM to remain educated, properly represented and involved.

If you have any questions about your AGM, please fill out a form on our webpage under Contact.  A letter will be sent out weeks before your corporation’s AGM to all owners.

Condo Corporations Should Have Rules to Avoid Headaches

February 3rd, 2015
It is not uncommon for our Condo Group to deal with situations in which one or more residents are engaging in problematic behaviour that the Board wishes to address. However, in many circumstances the conduct does not necessarily contravene a specific provision in the Condominium Act or the condominium corporation’s declaration, by-laws or rules. Boards, fellow residents and management will often get frustrated in such situations, as the problematic behaviour becomes a nuisance and creates administrative and governance headaches. Frequently, the objectionable conduct does not pose a risk to residents, there is no property damage, insurance premiums are not being adversely impacted, and the conduct does not deal with common issues covered in condominium documents like noise and pets.

We have dealt with a wide range of general nuisance situations, including:

  • Relatively minor hoarding within units that does not constitute health/life safety concerns but generates odour or similar complaints.
  • Residents that use an inordinate amount of property management’s time raising personal and objectively minor or trivial issues.
  • Family members of residents who do not have a power of attorney, yet intervene on behalf of residents.
  • Residents making excessive document requests from property management.
  • Short-term rentals/hoteling such as Airbnb.
  • General harassment of management, staff, corporation agents and other residents.

We have found that a particularly effective method of dealing with such situations is to ensure that the corporation has passed rules that are current, detailed and customized to the realities of that particular condominium corporation. Too often, rules are overlooked and corporations rely on boilerplate rules prepared by the declarant. Even rules updated six or seven years ago may be outdated. Alternatively, rules are updated without proper consideration and consultation as to the sort of issues that are currently arising in the condominium.

Section 58 of the Condominium Act authorizes the board to make reasonable rules consistent with the Act, declaration and by-laws with respect to the use of common elements and units. Such rules must either:

  1. promote the safety, security or welfare of owners and of the property and assets of the corporation; or
  2. prevent the unreasonable interference with the use and enjoyment of the common elements, units or assets of the corporation.

While the aforementioned provisions of the Act are particular about the sort of rules that can be passed (and the Act mandates certain notice requirements), the stipulated parameters still allow for a fair amount of leeway to address many nuisance situations.

Having a well-drafted declaration and new by-laws without updating the condominium’s rules is akin to purchasing a bespoke suit without a tailored dress shirt to accompany it. The two pieces of clothing work in tandem and both are fundamental to one’s wardrobe. Similarly, boards and management must pay attention to the corpations rules and ensure that they are current, work in tandem with and complement the declaration and by-laws, and serve the needs of the corporation’s owners and residents. Comprehensive rules will give more teeth to clauses in declarations and by-laws that provide for chargebacks for rule contraventions. It is far more efficient to engage in a proactive consultation process and have legal counsel prepare rules tailored to the nuances and situations particular to the condominium corporation, than to reactively deal with ongoing nuisance situations.

We appreciate that condominium corporations are hesitant to create new documents with the impending passing of the new Condominium Act. That said, from our extensive industry involvement, consultation and review of the proposed Act, there has not been any proposed changes with respect to rules.

Some principles for Board members, from CCI

December 4th, 2014

Some suggested principles for Board members to remember:
– The directors should seek, for the most part, the most tried and tested methods of fulfilling their duties and the duties of the corporation. Things should be done the right way, by the book and without short cuts.

– The Board’s paramount obligation is to do it right, not to do it cheap. All too often this priority is reversed.

– Remember, if the price sounds too good to be true, it probably is. Hire the right people at a fair price and demand that the job be done properly.

Disqualifying a Director Who Has Violated the Directors’ Code of Ethics

August 26th, 2014

By Barbara Holmes

A condo corporation found itself in court (Gordon v. YRCC No. 818) after the Board had disqualified one of the directors on the basis that he had breached the Directors’ Code of Ethics. The Corporation’s By-law No. 9 provided that a director could be disqualified and deemed to have resigned if he/she violated the Code of Ethics on three occasions (after the violations were established by an ethics review by the other Board members).

Mr. Gordon, the disqualified director, claimed that those provisions of By-law No. 9 were invalid as (i) they were unreasonable and thus contrary to section 56(i) of the Condominium Act and (ii) they were inconsistent with the democratic principles of the Act. The Court rejected both of these claims.

Mr. Gordon had also applied for an order that he be reinstated as a Board member even though the vacancy resulting from his disqualification had been filled. While the trial judge concluded that the manner in which the ethics review had been carried out violated the principles of natural justice and procedural fairness (Mr. Gordon was not given adequate notice of the ethics review and the substance of the case against him), the trial judge was not prepared to make his own decision as to whether Mr. Gordon had violated the Code of Ethics. No details were provided in the case decision about the nature of the violations. Instead, the Board was given 90 days to conduct a proper fresh ethics review, failing which Mr. Gordon could then apply to the Court for reinstatement. After the Board conducted a fresh ethics review it once again came to the conclusion that Mr. Gordon was disqualified as a result of the violations of the Code of Ethics. Mr. Gordon’s appeal was unsuccessful as the Court of Appeal agreed with the findings and decision of the trial court judge and awarded costs to the condo corporation in the amount of $8500.

In order for a Board to remove a director who has breached the Directors’ Code of Ethics:

1.The Corporation should have a by-law in place that specifically disqualifies a director for violating the Code of Ethics; and

2.In the event there is a violation of the Code of Ethics, Board members should be consulting legal counsel to ensure that the proper procedures are followed to validly remove a director.

Corporations that do not have a Directors’ Code of Ethics should adopt one.

– See more at: http://www.condoreporter.com/?p=3255#sthash.B1qj0oIZ.dpuf