Ontario Condo Law Blog

Time is the enemy in new condo construction cases

Chris Jaglowitz — Thu, 03 May 2012 11:03:20 -0500

The sheer volume of new condos currently under construction in the Greater Toronto Area means that we at the Ontario Condo Law Blog will be keeping busy for a long time to come. It also means that a new generation of condominiums, boards and unit owners will soon begin the inevitable dance with developers over construction deficiencies.

One of the easiest and most costly mistakes the board of a new condominium can make is to lose the right to sue the developer for construction deficiencies by waiting too long. Although the limitations law in Ontario was changed 10 years ago, too many people still don’t know that claims arising after January 1, 2004 must be pursued with a lawsuit within 2 years of discovering the claim. Condominium boards fall into that trap routinely, as illustrated by a recent Ontario Superior Court case against a condo developer over construction deficiencies in the common elements.

The essential facts in TSCC 1789 v. Tip Top Lofts are as follows:

August 16, 2006: Condo declaration registered, creating the condominium.

It’s unclear when s.43 turnover took place - Likely not important in this case, but often a factor where limitation periods are at issue for a new condo.

March 26, 2007: Condo engages engineers to conduct the s.44 performance audit.

August 15, 2007: Performance audit completed, delivered to condo board 1 day before s.44(9) deadline. Copy given to the developer on same day.

August 2007 to October 2008: Developer commences remedial work that continues until about July 2008, with some additional work being done as late as October 2008.

Late 2007: Talks take place between the parties. Developer proposes a “process agreement” where an arbitrator would decide any remaining issues. Board does not sign the agreement.

Early 2008: Relations between the parties deteriorate. Board not happy with speed or sufficiency of the work, developer complains that it is not given sufficient access to complete the work, which might void some of the warranties.

July 2008: Developer writes to unit owners advising that it had offered to settle the matter with the board and remains willing to finish the work, and that litigation is unnecessary and owners should petition the board to reach a settlement.

June 30, 2010: Condo commences its lawsuit for construction deficiencies. Developer enters a defence arguing that the applicable limitation period had already passed.

October 28, 2011: Court hears developer’s motion to dismiss the lawsuit over expiry of limitation period. Court releases its reasons and dismisses the lawsuit five weeks later.

Most important in finding when the limitation period begins ticking is precisely determining when the plaintiff “discovered” the claim. In this case, the court easily found that the corporation had discovered all of the construction deficiencies included in its lawsuit by reading the performance audit that was issued in August 2007. The limitation period for those deficiencies therefore began at that time and expired 2 years later, in August 2009.

The condo raised an elaborate argument that the limitation period was suspended because the parties had agreed to have an independent third party resolve the claim or assist them in resolving it, which is contemplated by section 11 of the Limitations Act, 2002.   In support of this theory, the condo pointed to the terms of the agreement of purchase and sale, the conciliation process under the Tarion warranty and the draft “process agreement” proposed by the developer (but never signed by the condo board). The court rejected this argument, finding that the parties had never agreed to appoint a third party to resolve or assist in the resolution of the claim and that the agreement of purchase and sale made reference to the Tarion warranty but not specifically to the conciliation process.

The condominium also argued that the limitation period actually began ticking much later, and namely once the developer had abandoned the remedial work, thereby breaching its obligations to the purchasers. The court found, however, that the agreement of purchase and sale contained no clause obliging the developer to remedy or correct certain defects in its work upon being given notice of the defect. Since the developer had no obligation under the agreement of purchase and sale to rectify deficiencies, the condo could not argue that the developer breached a contract when it stopped performing remedial work.

After rejecting these arguments and finding that the limitations period expired almost a year before the lawsuit was commenced, the court dismissed TSCC 1789’s lawsuit against the developer and ordered the condo to pay the developer’s legal costs of $21,000.

A few useful points emerge from cases like this.

First:   As a general rule, the limitation period for construction deficiencies revealed in a performance audit begins when the audit is issued to the condominium's board. The right to recover damages for such deficiencies is forever lost unless a claim is made within that 2 year period.

Second: It may be possible to extend or suspend the 2 year period, but this will require an explicit agreement that must be prepared by legal counsel.   While few details were revealed about the “process agreement” that Tip Top Lofts proposed in late 2007, such an agreement could have potentially suspended or extended the limitation period for a time. Such agreements are a useful tool in helping parties continue trying to resolve their problems while postponing the need for litigation. To be effective, however, these agreements must be carefully prepared and will require the assistance of the corporation’s lawyers.   Boards that rely on verbal or wishy-washy written assurances or, worse, the Tarion conciliation process do so at their peril.

Third:   The dismissal of a corporation's lawsuit does not necessarily mean that the owners have to suck up the loss.   In cases where the board or its professional advisers are negligent in identifying and preserving the applicable limitation period within which to make a claim, the individual directors or the advisors are potentially liable to the corporation and its unit owners. Having adequate errors and omissions insurance available for condo directors is therefore essential, as is ensuring that the corporation’s professionals (such as property managers, lawyers and engineers) are properly licensed (if applicable) and adequately insured.

Fourth: It is critically important for new condominiums to engage legal counsel at an early stage to get advice on construction deficiency issues. Boards or property managers that fail to secure appropriate legal assistance in time to preserve their corporation’s legal rights do themselves, their condominiums and unit owners a huge disservice and are accountable for that failure. For more on the importance to getting legal advice in a timely way, see our July 2010 piece on “10 reasons why condos should get legal advice about warranty claims.”

Keep your eye on the clock.

Microblog posts to 4/30/2012

Chris Jaglowitz — Mon, 30 Apr 2012 11:01:06 -0500

There has been plenty to tweet about since our last compilation post on March 13.

Here's some of the best items.

Remember, for live feed, follow @chrisjaglowitz on Twitter!

COURT AND TRIBUNAL DECISIONS

HRTO refuses to reconsider summary dismissal of unit owner's complaint that condo failed to address noise complaints. http://bit.ly/wfk830

BCCA (3-2) upholds finding that condo bd's solution for fixing design flaw was "significantly unfair" to some owners. http://bit.ly/zpuRcP

NBCA orders developer to finish construction of condo unit shell (eyesore, fire hazard) and prepare it for occupancy. http://bit.ly/zdEtzM

ONCA upholds finding that condo's handling of water leak scenario was not oppressive http://bit.ly/A5cfUL. ONSC ruling: http://bit.ly/z2Gl8e

ONSC approves sale of condo units by developer’s receiver, laments sorry state of the court’s document mgmt system. http://bit.ly/A3zmU5

ONSC: Condo devlpr to pay legal costs of $16K + $10K "top up" per Condo Act s.43(9) for shirking turnover obligations. http://bit.ly/IiRpMF

HRTO: Unit owner's complaint of racism in condo fee dispute has no reasonable prospect of success, summarily dismissed. http://bit.ly/IAsLv2

ONCA: Condo Act s.23 does not preclude unit owners from suing developer for construction defects in common elements. http://bit.ly/HYVnQX

ONCA: Regardless of any claims against condo corporation, owners (even the developer) must still pay condo fees. http://bit.ly/HNDvsa

COMMENTARY

MT @tarleyrobinson: Lawyers on condo/HOA boards shld be "directors" and not commit unauthorized practice of law: http://bit.ly/Hw6bAN

In the wake of Trayvon Martin killing, Watch Out for Neighborhood Watch Programs - http://bit.ly/HFWwJ8 (Northwest Condo & HOA Law Blog)

RT @lawyersweeklyca: Why Ontario's Condo Act is in need of an overhaul http://bit.ly/J00Whf

Governing condo complex is an exercise in slow torture. http://bit.ly/HT4DBB (Hartford Biz Journal)

RT @chris_antipas: Reading @lawtimes The Dirt: $40,000 parrot a red herring for condo law http://bit.ly/IypEUe

Why marijuana grow-ops pose a challenge for remediation and demolition [for condos, too]– Daily Commercial News: http://bit.ly/K6jxIL

Why co-op, condo residents won't run for the board, and why that's dangerous http://bit.ly/IttyRd (@habitatmag)

ONTARIO NEWS

Condo Culture: An issue that gets residents fuminghttp://natpo.st/wQ3Sme via @nationalpost < Smoking hot topic for #condo #hoa

@BlogTO reveals the changing face of #Toronto's waterfront - What Queen's Quay looked like before the condos - http://bit.ly/xhOEAT

Toronto condos: How close is too close to the Gardiner? http://bit.ly/zwLCwJ < You can flick a cig from your car and hit these bldgs. Nuts.

RT @wiselaw: Ontario couple loses wind turbines property tax case http://bit.ly/I0g0Mb

Growth in Ontario's condo sector prompts legislative review. http://natpo.st/GLmRVk

MT @canetwork: ON: Glass falls from Trump condo-hotel; stretch of Bay St closed http://bit.ly/H1rb40 < That bldg is both ugly AND dangerous.

Guelph condo pays water bill with inexplicable 1,600% spike in usage, then unsuccessfully ask city for compensation. http://bit.ly/GWrniE

The 3-inch condo is here - http://bit.ly/HloA4k < Condominiumized safety deposit boxes, another Canadian innovation.

Condo-dwellers in #HamONT buck double tax hit. http://bit.ly/IyZXQd . @CCIGHC hard at work for condo owners.

Winners of the 2012 Tarion Awards of Excellence for new home builders with amazing customer service announced http://ow.ly/aloNK

RT @Harry_Fine: Talk of co-op being dealt w at LTB has been around for years, but it may be happening. Good for co-ops & paralegals. http://bit.ly/J8Fh3u

Study shows energy savings realized from sub-metering in multi-rez buildings: http://lnkd.in/93_Dxk

Poll: Canadians don't mind paying for perks of condo living - but not very much! http://bit.ly/I5hF1l < Unrealistic expectations abound.

RT @davidhyde2: @Tridel launches new concept in condo security — the virtual concierge: http://bit.ly/K9w2hF via @TorontoStar

Legion looks to unlock its land value with condo-like developments - http://bit.ly/Itj1yN (via @globeandmail)

CANADA NEWS

Crown says cost-cutting cost truck driver his life in Calgary condo construction mishap - http://bit.ly/yy3fSB

Spy-cam found in Winnipeg swimming pool change room: Interviews. http://bit.ly/yLbCD4 < Intrusion upon seclusion in action.

A Woodstock woman warns others about attempted fraud re condo pymts - http://bit.ly/GKaB78

Canadian banks tighten lending for condo construction amid bubble fear - http://bloom.bg/GHeJos

New condo owners buy into Calgary’s urban renewal - http://bit.ly/H4ah6c (@globeandmail) < Plan's success also depends on quality of bldgs.

Brothels soon in your backyard? http://bit.ly/H0Dvlo < Or in your condo?

RT @toronto_life Apparently, there are secret bordellos in pretty much all of the city’s condo buildings http://lif.to/HogXuD

RT @canetwork: BC: Feeling a little gun-shy over my condo living. http://bit.ly/GWSuiQ < Good example of how little condo disputes blow up.

Condo owners face-off in property-rights tiff http://tgam.ca/D55A via @globeandmail

Despite the title, it’s not a condo. All the owners have a fractional interest in one legal title. http://tgam.ca/D55A via @globeandmail

Manager had to crack down on scofflaw condo renters. http://bit.ly/JftqVl (via @RealDealMTL)

Flaherty cites Toronto condos as need for CMHC oversight. http://bit.ly/Ic4k8R < No sense letting an overheated mkt destroy the economy.

U.S. NEWS

Calif. enacts bill allowing electric vehicle charging stations in community assns: HOA Law Blog http://bit.ly/yvXhaV

NYU law school pays $3.6M for faculty condo - News - ABA Journal http://bit.ly/wEB6Hl < This is their third multi-million dollar condo.

RT @toronto_life Apparently, there are secret bordellos in pretty much all of the city’s condo buildings http://lif.to/HogXuD

"They probably have less stringent rules in a penitentiary." Flowers spark legal fight at NH condo. http://bit.ly/FQsDmg

CT: Tenant refuses to remove mezuzah - http://bit.ly/GWVrPF < Condo bd wades into a whole lotta trouble here.

Lawyer returns from vacation, averts crisis by bringing discriminatory condo board back from the ledge over mezuzah. http://cour.at/HS1T5d

MT @CondoandHOALaw: Hawaii jury awards $3.9M to condo unit owners over harassment, abuse by board. http://on.msnbc.com/GW4xGn

More deets on epic jury award against Hawaii condo board after campaign of terror against owners. http://bit.ly/H9hPDL

RT @canetwork: Missile silo becomes condos with Doomsday in mind http://on.wtsp.com/HaZ95d < I think prices will drop after 2012!

Via @nprnews: Trayvon Martin's Parents Plan To Sue Homeowners Group http://n.pr/HIrmCn - Ken Direktor's advise to #condo & #hoa leaders

Ohio city ponders collecting 20yrs of under-billed water usage discovered when condo asks for reduction. http://ohne.ws/HhaBgf H/T@canetwork

Illinois A-G sues condo board for evicting unit owner's depression therapy dogs « CBS Chicago http://cbsloc.al/HM8wq6

RT @canetwork: IL: Man Hired by Condo to get rid of Geese Drowns After Apparent Swan Attack (I don't make these things up) http://bit.ly/HPgels #condoHOA

A-G backs off on requiring digitized condo plans | Crain's New York Biz http://bit.ly/Iia8wu

Downtown Chicago residential high-rises prepare for NATO summit - http://trib.in/KicCaw

Recap of live tweeting from 2012 ACMO AGM

Chris Jaglowitz — Sat, 28 Apr 2012 10:41:01 -0500

The Association of Condominium Managers of Ontario held its AGM on April 20.

A record number of Registered Condominium Manager members attended, as did your humble scribe.

Here’s a recap of some of the live tweeting that took place.

Attending the @ACMOnews AGM with @chris_antipas @deanmccabe @Rob_Weinberg.Big turnout here.
— Chris Jaglowitz (@chrisjaglowitz) April 20, 2012

Also here at @ACMOnews AGM: @jasontowerman @lyndsey_mcnally and more!
— Chris Jaglowitz (@chrisjaglowitz) April 20, 2012

At ACMO AGM. It is fantastic to see such a great turnout , support and commitment from our membership.
— Chris Antipas (@chris_antipas) April 20, 2012

Pic of @ACMOnews AGM. I see @Malvernguy and many more. twitter.com/chrisjaglowitz…
— Chris Jaglowitz (@chrisjaglowitz) April 20, 2012

The numbers at the ACMO AGM ...161 in person and 121 by proxy. Absolutely fantastic !
— Chris Antipas (@chris_antipas) April 20, 2012

And the drum roll begins for the ACMO board of directors elections.....
— Jason Tower (@jasontowerman) April 20, 2012

Elected to @ACMOnews bd : Donna Farr, Heather Savory and @deanmccabe. Congrats!
— Chris Jaglowitz (@chrisjaglowitz) April 20, 2012

@chrisjaglowitz thanks Chris for your hard work and support of the association. twitter.com/lyndsey_mcnall…
— Lyndsey McNally (@lyndsey_mcnally) April 20, 2012

Still laughing after @davehemstad show at Friday's @ACMOnews luncheon! Great way to end a Friday. Thanks for the laughs!
— WOWnetwork (@wownetwork) April 23, 2012

GMA Condo Alert! (Winter 2012 edition)

Chris Jaglowitz — Sat, 14 Apr 2012 12:25:11 -0500

Now that "the winter that never was" is finally over, we can safely reveal the Winter 2012 edition of our newsletter, featuring the Top 10 Condo Law Cases of 2011.

Click this link or the picture at right to download your pdf copy today.

Those of you contemplating a lawsuit or already up to your neck in condo litigation this year can easily check this edition to see whether your case is novel or old hat. Unless you're made of money or are a glutton for punishment, remember that there's no sense in reinventing the wheel.

On the demise of the penny

Chris Jaglowitz — Sat, 31 Mar 2012 12:08:46 -0500

One of the notable aspects of the 2012 federal budget is the plan to withdraw the penny from circulation as currency.

While its practical utility has diminished into irrelevancy over time, the copper coin has earned a special place in our lexicon. To be sure, check brainyquote.com's list of some of the most famous “penny quotes.” The ones most often heard in the realm of condominiums include:

“penny wise, pound foolish”
“pinching pennies”
“a penny saved is a penny earned”
“won’t pay a penny more”
“collect every penny”
“worth every penny”

Given the tough economic times and the frugality that perpetually pervades condominium finances, the one cent coin will likely hold its place in our society’s linguistic repertoire for decades to come, long after it vanishes from our pockets and purses.

Before it disappears for good, however, people emptying their piggy banks and coin jars may be inclined to unload their treasure trove upon some unsuspecting merchant or, god forbid, condominium corporation. But is a recipient legally obliged to accept a large number of coins as payment of a debt?

The answer, in a word, is “no.”

According to section 8 of the federal Currency Act, a tender of coins is indeed legal tender, but only up to the following daily maximums:

$40 if paid in coins with a face value of $2 to $10;

$25 if paid in loonies;

$10 if paid in coins with a face value between 10 and 99 cents;

$5 if paid in nickels; and

$0.25 if paid in pennies.

If faced with a payment of coins greater than these maximums, one can simply refuse to accept the payment by virtue of this section and direct the payer to visit a bank to trade the coins for bills or a draft. This is the perfect answer to some ne'er-do-well's diabolical scheme to ruin a property manager's day by paying this month's common expenses in pennies, nickels and dimes.

In our increasingly cashless society, the better practice for condominium corporations and their management firms is to refuse cash entirely. This helps simplify accounting and reduce fraud. Other than in vending or laundry machines, cash and coins have no place in condos anymore.

A penny for your thoughts?

A hat tip also to the Centre for Public Legal Education Alberta for highlighting this obscure statutory provision just three weeks before budget day. An uncanny prediction!

Microblog posts to 3/13/2012 - Pt. 2: News and focus on Alberta

Chris Jaglowitz — Wed, 14 Mar 2012 08:19:46 -0500

Here is a compilation of condo-related news items we've tweeted about over the past seven weeks, sorted by jurisdiction or by theme.

It appears that the Province of Alberta has suffered a disproportionate number of condo-related catastrophes and a streak of shoddy construction by feckless developers. We've gathered those items together with a few thoughts of our own. We'd be interested to hear your two cents as well.

ONTARIO NEWS

The condo board, the lawsuit and the $40,000 parrot - The Globe and Mail - http://bit.ly/xWipJ7

GuelphMercury editorial - Condo owners seek tax relief or civic service upgrades - http://bit.ly/yaCXyr

RT @CliftonKokLLP: Sara Finoro is co-editor of @CCIGHC's Condo News. Here she speaks up on fair taxes for condos. http://fb.me/12l1qWSjW

Car break-ins rock west Ottawa condo | CTV Ottawa http://bit.ly/Az26zw - Owners blame mgmt, board for not warning of crime wave.

TheStar: Falling glass lawsuits filed: http://bit.ly/AvHsdL

Ottawa Public Health Bd. honours smoke-free condo - http://bit.ly/xmiWwU < A nice touch for Nat'l Non-Smoking Week.

The unstoppable Harry Stinson moves on to next project - Hotel Niagara owner shares plans for building’s redevelopment. http://shar.es/fewA0

Ritz-Carlton 5-star condos proving a tough sell - http://bit.ly/zHvEUj < Surprise! Toronto's luxury condo market has a saturation point!

GMA IN THE NEWS

Thinking about fighting your condo? Read this first. Condo battles can be costly | Toronto Sun - http://bit.ly/xWv8vE

I'll be on CBC Radio's @Ottawamorning show Friday at 7:10am, talking about electric vehicle charging stations in condos. Electrifying!

Ottawa condo owner must pay for meter or unplug electric car - CBC News: http://bit.ly/zeotbA

Interviewed by CBC @Ottawamorning about the condo EV charging story. See my blog piece with links and commentary: http://lnkd.in/qEyANk

CANADA NEWS

Condo owner calls for changes - CBC New Brunswick - http://bit.ly/zuX736 < This whiner doesn't get it. Reserve will save his skin later.

Wpg condo developers dissatisfied with size of grants - http://bit.ly/AebdUe < City hopes to ease off on taxpayer-subsidized gentrification.

Urban Canadians embracing condo craze. http://bit.ly/AsgcWm

Bank watchdog targets condo speculators - The Globe and Mail. http://bit.ly/wLGnWl

NWT Govt says no interest-free loan to troubled Yellowknife condo corp - CBC North - http://bit.ly/wOaVZz

U.S. NEWS

NY court directs condo developer to return $16M to buyers. http://bit.ly/zWYIhi

Condo board denies responsibility for Nick Santino’s suicide after he put pit bull to sleep - http://nyp.st/zvWV9G

N.Y. Orders Developers to Digitize Co-Op, Condo Offer Plans - Businessweek: http://buswk.co/wRjOKC < Digital disclosure is long overdue.

Another condo loan fraud. NY realtor accused of ripping off condo bd to fuel gambling jaunts. http://lohud.us/xOPLNd

Another state grapples with dispute resolution in its condo law. The other side of condo living in CT. http://bit.ly/yL0bmQ

QUEBEC CONDO LAW REFORM

Quebec condo buyers out in the cold. http://bit.ly/ApsN0S < Little security for deposits in their condo law.

Condos: From France, a lesson on the need for regulation. http://bit.ly/wtaXJo (from Montreal Gazette)

Quebec govt set to review its condo law. First time in a lonnnng time. Lots of catching up to do. http://bit.ly/A5kC2N

Compare Quebec and Ontario condo laws - http://bit.ly/AzTFKX

ALBERTA AS CONDO HELL?

Are you going west, young man? If so, think twice before buying a condo unit there.

A string of condo fires and the mandatory evacuation of yet another poorly-built condo round out a lousy few weeks of condo-related news from Alberta. The condo law in that province has come under increasing scrutiny and is seen as providing too little protection to purchasers and unit owners and insufficient teeth to persuade developers to build quality projects. Government has reportedly been slow to react and more and more people are finding themselves in difficult situations as the dust from the great condo boom begins to settle.

Albertans who are sick of being victimized by scoundrels and underserved by provincial laws might look to Quebec and to Ontario where significant reviews of the condo legislation are now underway or soon will be. How many more people must lose their homes, their possessions and their investments before something is done?

While there are some good developers and high-quality condos in Alberta, and while there are also bad ones everywhere else, this recent line of news stories and the apparent severity of the problem suggest that Albertans tempted to buy a condo may be better off to find a freehold house or rental apartment to call home.

What do you say?

Edmonton: Damage hits $10 million in Edmonton fire Condo blaze leaves 100 homeless http://bit.ly/w8xzFq

Edmnton condo residents smoking mad: http://bit.ly/zcLpHo < Idiot plumbers cld be charged for not calling 911 sooner after sparking blaze.

Re last: Why didn't owners call 911 abt smoke in hallways? They're told "Everything's ok." Hello? Costa Concordia? History repeats itself.

Unsure abt AB reqmts. RT @causalitybrunch: A condo of 82 suites isn't req'd to have a fire alarm monitoring system? Sprinklers? Alrm drills?

Another Alta condo fire this week. The difference? Lesson learned: Call 911 at the first sign of trouble - http://bit.ly/AvUML4

911 called promptly this time, but cause was infinitely avoidable. Investigators reveal cause of Wednesday's fire - http://bit.ly/wkjdgY

Another newly-built Alberta condo condemned. Residents evacuated from Leduc condos. http://bit.ly/yMZLlq

Video: Residents react after Leduc, AB condo is condemned. http://bit.ly/w2J4jy

Leduc condo developer’s whereabouts unknown. http://edmjr.nl/yXWuH1

Alberta condo construction woes flagged 3 yrs ago - Gov't offers sympathy but no action on report's recommendations - http://bit.ly/xYUnKn

Leduc condo residents forced to leave their homes get few answers at meeting. http://bit.ly/xSGwta

A helluva mea culpa. Developer takes blame for Edmonton condo 'disaster' http://bit.ly/xcdrVN

Receiver takes over troubled Leduc condo - CBC Edmonton - http://bit.ly/zEe8ub

Ft McMurray condo woes unresolved a year later - http://bit.ly/wg1ULj < Grim foreshadowing for owners of other AB condo ordered to evacuate.

Calgary condo developer fined $58K for breaking #firesafety rules. http://bit.ly/xwKd11

Arsonist who drank beer as condo burned handed four years in jail. http://bit.ly/wT0WCd (via Calgary Sun)

Follow me on Twitter for live feed and to join the conversation. As always, we welcome your comments here on our blog site too.

Microblog posts to 3/13/2012 - Part 1: Cases and Commentary

Chris Jaglowitz — Tue, 13 Mar 2012 10:26:25 -0500

In the seven weeks since our last microblog posting, there has been a whole bunch of condo-related court decisions and interesting news stories for us to tweet about. Given the large number of items, we’ll break them into two segments.

In this first installment, we will highlight the Court and Tribunal Decisions and also the Commentary and Cool Stuff.

COURT AND TRIBUNAL DECISIONS

An interesting trend emerges from several of the cases mentioned below. Judges appear to be closely scrutinizing the steps taken by condo corporations in enforcement cases and rapping the boards’ knuckles where the enforcement is not conducted reasonably. This is welcome news and is likely in response to the rash of nightmare scenarios in recent months where condo boards or their lawyers over-litigate enforcement cases and use David and Goliath techniques against owners.

Condo boards that choose not to approach rule enforcement cases in a conciliatory manner are doing their owners a disservice and are needlessly risking a reduced costs recovery or, worse, an adverse costs award. One condo board was smacked with a personal costs award against its directors for wilfully breaching a settlement made with unit owners.

A couple practical lessons that immediately come to mind include:

First: Managers should write more letters to owners before rule enforcement cases go to the lawyers and managers should document the efforts they made to attempt to resolve the matter in-house before escalating the enforcement.

Second: Informal meetings, negotiation and mediation should be offered or attempted prior to commencing litigation in almost any enforcement case, and counsel for all parties should be constantly exploring the possibility of settlement throughout the piece.

Here are the cases. Watch for the trends and, above all, enjoy!

ABPC: Vendors responsible for condo special assessment after failing to advise purchaser. http://bit.ly/wtSw7L

ONSC: Condo Act s.134(5) is not an invitation to counsel to aggressively work a file or unreasonably build up costs. http://bit.ly/wtGil9

ONSC: Condo's enforcement of parking rules not oppressive. No vendetta. Unit owner ignored van restrictions. http://bit.ly/A5NWDK

NSSC: Condo loses bid to “negotiate by litigation” over neighbour's refusal to share snow-clearing costs. http://bit.ly/zimwu3

ONSC awards full indemnity costs after condo obtains compliance order. Cash-strapped owners given 4 yrs to pay. http://bit.ly/zfzjfr

BCSC: Realtor negligent in leaky condo purchase, but plaintiffs fail to prove damages (they actually profited). http://bit.ly/yVOaHd

HRTO: No substance to unit owner’s claim that condo bd discriminated by refusing to accept further noise complaints. http://bit.ly/xU1nMt

HRTO: Owners refusing to re-elect a director making human rights complaint vs condo corp is not reprisal by the condo. http://bit.ly/xKvgS0

ONCA quashes unit owners’ appeal from ONSC’s refusal to grant leave to appeal a condo arbitrator’s decision. http://bit.ly/wT1B32

ABCA: Construction lender potentially liable to purchasers, condo corp for faulty design/build. Most claims to proceed. http://bit.ly/zWFClJ

ABQB upholds default judgment vs. condo. Bd completely asleep at the switch in responding to lawsuit served in 2009. http://bit.ly/ybmNWF

ONSC: 6 lawsuits to proceed vs Channel Prop Mgmt, Khan re $17M condo loan fraud. Lender is pursuing victimized condos. http://bit.ly/yIaOlu

ABQB denies condo's costs in pet removal case where pet already removed; condo should have checked before suing. http://bit.ly/yfZdCa

ONSC: Condo directors to pay legal costs personally for acting in bad faith by breaching settlement with unit owners. http://bit.ly/z45g7h

ONSC: Unit owners wrong to alter the common elements, but condo wrong to litigate before talking. http://bit.ly/yL76gO

COMMENTARY AND COOL STUFF

Pretty cool time-lapse photography movie of a Toronto condo being built. http://bit.ly/wXgrJD

Google+ Hangout - The Future of HOA Board Meetings? http://bit.ly/zCHCPY

Being a condo director a big responsibility - Lots to know, but you’ll be in on all the decisions - http://bit.ly/A3hI6f

When it comes to dog rules, grandfather clause offers bite - London Free Press http://bit.ly/xor6pR

Condos should get ahead of the wave. Electric vehicles are coming « wbcondo. http://bit.ly/ytyeqL

Dealing with condo and HOA member apathy – HOA Brief: http://bit.ly/zaaMBp

Beware of the "Service Dog Scam": Florida ROC blog - http://bit.ly/ww04Vg < Not easy to verify true service animals.

Should homeowners' association managers be licensed? http://bit.ly/yDleyV

High-rise condo living that's been brought back down to earth. http://bit.ly/wnUSFU < Update on Tokyo condo trends, post-quake.

Secret ballots are pretty much dead in Texas HOA elections - http://bit.ly/wxVM8E < An answer to a question no one asked?

RT @canetwork: Home Ownership and Second Hand Smoke: the American Dream or a Health Nightmare?

RT @cohoalaw: Don't Elect the Convicted Felon to Your HOA Board. http://bit.ly/A6ImkM < No redemption for ex-cons when it comes to condo bd.

Love condos and urban fantasy novels? "The Last Condo Board of the Apocalypse" releases today. http://bit.ly/zTApa2

Recap of live tweeting from Minister Best's address to OBA Institute

Chris Jaglowitz — Mon, 13 Feb 2012 08:38:42 -0500

Ontario's Minister of Consumer Services, the Hon. Margarett Best, was a guest speaker last week at the real estate section of the Ontario Bar Association's annual Institute. She spoke on the topic of "Do we need a new Condominium Act?"

The topic is timely, even though our Condo Act celebrated its 10th year in force just last year. Several parties have indicated displeasure with various aspects of the Act for some time and a lot has changed in 10 years.

Naturally, representatives of the real estate and condo law bars attended this special event, as did stakeholders like the Canadian Condominium Institute (represented by legislative commitee chair Armand Conant) and Association of Condominium Managers of Ontario (represented by President Dean McCabe). See photo of the principal ringleaders, at bottom.

Like many conferences these days, the OBA Institute featured some live tweeting from participants in the sessions. Here's a recap of some of the best tweets of the Minister's address.

I’m at real property session at @OBAToday's #Institute2012 to hear @OntarioConsumer minster @MargarettBest on “Do we need a new Condo Act?”
— Chris Jaglowitz (@chrisjaglowitz) February 9, 2012

This morning's Real Property Law, Condominiums, Clients and Closings: Handling a New Condo Purchase at #Institute2012 twitter.com/OBAtoday/statu…
— Ontario Bar Ass. (@OBAtoday) February 9, 2012

Minister Best addressing the OBA on the status of the Condominium Act. yfrog.com/odc3tkfj
— ACMO News (@ACMOnews) February 9, 2012

. @ontarioconsumer minister @MargarettBest takes the stage at #institute2012. twitter.com/chrisjaglowitz…
— Chris Jaglowitz (@chrisjaglowitz) February 9, 2012

Best: Condo ownership and purchase stats way up.Est. 525k dwelling units in Ont. #institute2012
— Chris Jaglowitz (@chrisjaglowitz) February 9, 2012

Minister Best: condominiums in ontario have evolved since Act was written
— ACMO News (@ACMOnews) February 9, 2012

Best: Condos have evolved since Condo Act 1998.Time for review. Input recd from CCI and @ACMOnews and condo lawyers.
— Chris Jaglowitz (@chrisjaglowitz) February 9, 2012

.@margarettbest: Condo owners survey reveals problems with several aspects of condo operation and management. #institute2012
— Chris Jaglowitz (@chrisjaglowitz) February 9, 2012

Minister Best: "governments job is to assess the needs and respond..."
— ACMO News (@ACMOnews) February 9, 2012

Best: @ontarioconsumer responsible to ensure consumers are properly informed, treated, but must balance interests of builders.
— Chris Jaglowitz (@chrisjaglowitz) February 9, 2012

Best: Gov't seeks input from stakeholders like @OBAtoday, condo law bar to help update Condo Act. @ACMOnews too! #institute2012
— Chris Jaglowitz (@chrisjaglowitz) February 9, 2012

All stakeholders will be heard as the Government moves forward in reviewing the current Condominium Act says Minister Best
— ACMO News (@ACMOnews) February 9, 2012

Minister confirms review of Act is ongoing but stops short of providing timeline for drafting changes
— ACMO News (@ACMOnews) February 9, 2012

Addressed the Ontario Bar Association Institute -- re the evolution of condos in Ontario and our government's review of the Condominium Act.
— Margarett Best (@MargarettBest) February 9, 2012

With @deanmccabe and Armand Conant at OBA #Institute2012. twitter.com/chrisjaglowitz...
— Chris Jaglowitz (@chrisjaglowitz) February 9, 2012

New name, bigger teeth for invasion of privacy

Chris Jaglowitz — Wed, 08 Feb 2012 10:45:44 -0500

Since the landmark case of Jones v. Tsige was released on January 18, 2012, the legal press and blogosphere have been buzzing about the newly developed tort of “intrusion upon seclusion.” The case represents a major development in privacy law and provides people whose privacy has been breached with a new way to seek redress.

Since this case will have practical implications for condominium corporations, it was a pleasure for me to report on this case to a whole roomful of condominium managers just two days after it was released.

These are my speaking notes for the talk I gave at a legal grab bag luncheon for the Association of Condominium Managers of Ontario on January 20, 2012. ACMO members can soon watch the video of the entire luncheon presentation online (login required).

Enjoy.

Those of you who have attended many of these luncheons and condo conferences over the years will have heard a lot about privacy. What’s remarkable is that we have not seen or heard much in the way of lawsuits or awards of damages for breaches of privacy, whether in the condo world or even in the business world.

That’s largely because our courts consistently held that there was no common law right to bring a lawsuit where the only claim is for damages for invading personal privacy. As a result, people typically couldn’t come to court and, instead, they had to go to a privacy commissioner or make claims under a specific piece of legislation in order to raise complaints, and that has not proven to be a very user-friendly or effective for complainants and so far it hasn’t been a big deal for respondents. Privacy cases against condos have been few and far between.

But that was then.

In what is described as landmark decision, released on January 18, 2012, the Ontario Court of Appeal has, for the first time, confirmed that people have the right to bring a lawsuit in court for damages for invasion of personal privacy.

While it’s not a condo case, this decision will affect condos, property management firms and just about every other sector and business in our province.

The case is called Jones v. Tsige (and Tsige is pronounced: “SIGGAY”).

The basic facts are these:

Jones and Tsige worked at different branches of the same bank. Jones kept her accounts at that bank. The two women did not know or work with each other, but Tsige became involved in a relationship with Jones’ former husband. And then for about four years, Tsige used her workplace computer to access information about Jones’ personal bank accounts.... on at least 174 occasions. The information displayed included bank transaction details and personal information like date of birth, marital status and address.

Tsige did not publish, distribute or record the information in any way.

When the bank detected the unauthorized access (presumably on the 174th time) and confronted her about it, Tsige admitted that she had looked at Jones’ banking information, and she apologized. Because she had breached the bank’s policies, Tsige was suspended without pay for a week and lost her yearly bonus.

Jones then sued Tsige in Superior Court for damages of $70,000 for invasion of privacy and breach of fiduciary duty, and $20K for punitive and exemplary damages.

The lawsuit was dismissed at an early stage when the court found that there was no issue of fiduciary duty and, further, that there was no right at common law to sue for damages for breach of privacy. Court found that Jones could only make a complaint under privacy legislation. Generally speaking, that legislation doesn’t let you do very much or recover very much.

At the court of appeal, a review of 125 years of case law and legal scholarship revealed that the concept of “breach of privacy” actually has four separate components. The one that was most applicable to this case was the tort of “intrusion upon seclusion.”

It sounds weird, but the concept of “intrusion upon seclusion” makes sense when it is summarized as follows:

A person who intentionally intrudes, physically or otherwise, upon the seclusion of another person or his private affairs . . . is subject to liability for invasion of privacy if the invasion would be highly offensive to a reasonable person.

After considering the state of technology as it exists today and how much personal information about all of us is “out there” in electronic format, the court found that it is appropriate to now confirm the existence of a right to sue for intrusion upon seclusion in Ontario, and that this is a reasonable way for the court to develop the law as technology and the needs of society change over time.

Now, to clarify the parameters of this new right, the court established three elements that must be present in order for a claim to succeed for intrusion upon seclusion:

First, the defendant’s conduct must be intentional or reckless;

Second, the defendant must have invaded the plaintiff’s private affairs without lawful justification; and

Third, a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.

It is not necessary to prove that the plaintiff suffered economic harm as a result of the defendant’s acts. Also, it is not necessary to show that the defendant spread any information to other people. The invasion itself is sufficient.

Recognizing that confirming a new tort is like opening Pandora’s Box, the court gave some further clarification on this new right to sue by saying that:

A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims by individuals who are sensitive or unusually concerned about their privacy are excluded. Further, it is only to matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence, that, when viewed objectively by a reasonable person, can be described as highly offensive. [Emphasis added.]

From this passage, the court appears to have set a threshold high enough to provide aggrieved people with a remedy while offering defendants protection from frivolous claims. Each case must be decided on its own facts but this decision is clear that there must be something very significant about the circumstances of a case to justify the court giving an award of damages to compensate the victim and punish the offender.

Turning to how damages should be quantified when a claim is successfully established, the court held that that damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.” In cases where the plaintiff has suffered no economic loss, the damages should be “modest but sufficient to mark the wrong that has been done.” This tells us that there won’t be Louisiana-style jury awards of a gazillion dollars. That’s good news.

In getting down to the figures in the instant case, the court examined awards given in cases of a comparable nature, which ranged from $500 for superficial infractions to over $50,000 for egregious cases. Five factors were cited as a tool to help court decide the appropriate amount of damages in cases like this. Those factors include:

1. the nature and frequency of the invasion;
2. its effect on the plaintiff’s health, social, business or financial position;
3. the nature of any relationship between the plaintiff and defendant;
4. any distress, annoyance or embarrassment suffered by the plaintiff; and
5. the conduct of the parties, both before and after the invasion, including any apology or offer of amends made by the defendant.

After applying these factors in the Jones v. Tsige case, and recognizing that while Tsige was apologetic for what she did, the court found that her actions were deliberate, prolonged and shocking, and that this case was crying out for a remedy. For these reasons, the court set aside the dismissal of the action and awarded Ms. Jones damages of $10,000 for intrusion upon seclusion. And, with that, a new kind of lawsuit is born.

We will be watching to see how this case trickles down for all of us in condo land. While it’s unlikely that the flood gates will open up, we do expect that we’ll be seeing claims like this nature in the future, probably in the small claims court, which can give damages of up to $25,000. The issues that we’re most likely to see in condominiums might include things like:

• For Records – Letting unauthorized people view the owners’ preauthorized payment info – that’s trouble.

• For Entering units -- Barging into a dwelling unit in the middle of the night with no notice and for no good reason is probably going to give rise to a problem.

• For Surveillance & security – Placing cameras (or hidden cameras) in fitness areas or washrooms will all fall under this new tort.

Any property manager can probably come up with plenty more good examples.

Here are three points to take away to help you minimize the risks:

First: If your management firm or individual condo corporation does not already have a privacy policy, make one or get one from your lawyers. If you’ve already got one, check it, make sure it works for you and, more important, that it’s being followed and that it covers what you need it to. Tweak the policy as necessary.

Second: Managers or boards who discover a significant breach of unit owners’ privacy should try to get in front of the problem so that the breach can be sealed and the situation can be deescalated and diffused. Get legal advice. Remember that Ms. Jones did not sue the bank. She sued Tsige, who did the evil deed. Things might have been different if the bank’s management knew of the privacy breach or didn’t take any action once they found out about it. By being proactive, a condo might be able to extricate itself from a messy situation where the breach is caused by a director, contractor or other unit owners.

Third: When making entry to units, remember that section 19 of the Condo Act requires “reasonable” advance notice to be given. You’re wise to give that notice in writing and make sure you’ve got a way to show the date/time the notice was given and the method used to give it. And when making entry, people should announce themselves loudly so they don’t “intrude” upon someone’s “seclusion.” Wink, wink.

That’s just a quick summary of this case which is hot off the press. You’ll be reading more about this case soon, but those of you who attended this ACMO legal panel luncheon heard about it first!

Stupidity compromises safety -- 2 cases in point

Chris Jaglowitz — Mon, 06 Feb 2012 09:42:09 -0500

As the world learns more of the gut-wrenching details of the Costa Concordia disaster and the utter recklessness and stupidity shown by the ship's captain, a similar story has emerged here at home which should concern any person living in an apartment or condominium building.

The Costa Concordia's captain will live in infamy not only for the daredevil stunt which caused the ship to hit a reef, but also for his decision to delay the evacuation order and advise passengers that the catastrophic damage to the ship’s engine and power plant was a trifling electrical problem that was under control. Evacuation did not begin until over an hour later, when the ship was already sinking and in much more serious trouble. This made evacuation far more dangerous and some people could not escape safely or at all. At least 17 people died, 17 are still missing and many more were injured.

On January 19, six days after the Costa Concordia ran aground, a fire broke out in an Edmonton condo building. It took 70 firefighters 15 hours to contain the blaze, which completely destroyed 50 of 82 suites. Damages are estimated to exceed $13 million. Luckily, there were no injuries but almost 100 people were left homeless.

After their initial investigation, Edmonton fire officials reported that the blaze started after a plumber's torch ignited insulation in the boiler room at about 11 a.m., but no one called 911 until almost four hours later. By that point, the smouldering remnants of the initial fire had spread into walls and ceilings and then burst into flames. Apparently the workers had tried to contain the fire themselves, rather than call for help. This was a dumb move, and the first of three very costly mistakes.

To illustrate the foolishness of the plumbers' decision not to call for help, fire officials point to an identical incident two days later. In that case, another plumber using a torch started a fire at another condominium in Edmonton. The difference? The second plumber called 911 immediately, with the result that fire damage was limited to $200,000, with only two suites affected. Fire officials are now considering charges against the plumbers who waited four hours before calling for help.

Making the Edmonton story even more bizarre are reports that the building's fire alarm was activated shortly after the fire began and was then silenced, and residents were advised that the situation was under control, even while smoke entered corridors and suites.

The Edmonton Sun quoted a resident whose suite and possessions were completely destroyed in the fire, who said:

“There were people there while this whole thing was transpiring. There was smoke in suites, there was smoke in the hallways,” he said.

“Everyone in the building was aware of it, and yet they were being told that it was under control.”

This was the second mistake. Whoever made those announcements and turned off the fire alarm should be thankful that no one was injured or killed. Then they should hang their heads. Then they should call their insurance company.

There's more.

The cruise ship and the condo stories are strikingly similar in terms of misleading announcements being made to pacify the guests or residents while critical time passed. But unlike the helpless passengers on the doomed ship, the condo residents had a greater opportunity to take control of their situation. Anyone in the building who detected the smoke and heard the alarm could have picked up the phone and called the fire department.

It is not clear precisely who told residents that the situation "was under control," but residents were clearly convinced since none of them chose to call 911. It is hard to suggest that people should second guess the people in charge or that these residents might be partly responsible for their own terrible loss, hindsight tells us that the residents' decision to sit tight was a mistake. They should have called 911 after smelling smoke and hearing the alarm sound (and then stop), even in the face of assurances that everything was under control. This entire scenario should have sounded familiar from the reports from Italy in the preceding week.

There is nothing wrong with acting out of an abundance of caution where the circumstances or potential consequences require it. The possible inconvenience or minor cost of raising the alarm in a potential emergency in is an absolute bargain when compared to the devastation that could occur and which the Edmonton condo residents are now experiencing.

Criminal prosecutions against the responsible parties and the inevitable civil suits to follow might flesh out some of the finer points in the Costa Concordia case and in the Edmonton condo fire, but the most important lesson is already clear: When faced with an emergency, it's better to be safe than sorry. Relay accurate information, summon help quickly and get people out fast.

While people everywhere would prefer to believe that those in charge will exercise proper judgment and do what's best for everyone's safety, history shows that common sense is conspicuously absent in so many of the worst catastrophes. Severe penalties are needed where such palpable negligence results in massive damage, injury or death, so as to make an example. Those penalties and the lessons that flow from such cases must be remembered.

Photograph by: Rick MacWilliam, edmontonjournal.com

Can I approve the minutes of a meeting I did not attend?

Chris Jaglowitz — Tue, 31 Jan 2012 08:52:04 -0500

Anyone involved with condominiums or condo-related associations likely attends a healthy number of meetings of various sorts. With each meeting comes a set of minutes to memorialize what transpired and was accomplished at the meeting. The minutes are customarily approved at a subsequent meeting.

At a recent meeting of one of my committees, I made a motion to approve the minutes of an earlier meeting. A fellow committee member then asked whether it was proper for me to make that motion given that I was not present at that earlier meeting.

For the answer, we turn to the Frequently Asked Questions section at Parliamentary Procedure Online, which is the companion website to Robert's Rules Online. FAQ #30 provides:

Q: Can a member vote on or second a motion to approve the minutes of a meeting that he did not attend?

A: Yes, absolutely! There is no requirement in Robert's Rules of Order that a member have first-hand knowledge of something before voting on minutes or other motions. In fact, a motion need not be made regarding the approval of the minutes. The chair says, "Are there any corrections to the minutes?" Members may offer corrections, and when there are no further corrections forthcoming, the chair says, "If there are no further corrections to the minutes, they stand approved as corrected... the next item of business is..." or if no corrections are offered, "If there are no corrections to the minutes, they stand approved as read... the next item of business is..." Note that there is no second involved in this process. For more information, refer to RONR (10th ed.), pp. 343-344.

Of course, this answer assumes that Robert's Rules are the accepted rules of the organization and there are no statutory or by-law provisions that apply or take precedence.

While it is not necessary to have attended the meeting at issue or even to have read the minutes before approving them, it certainly makes good sense to check that the draft minutes appear to be in order before approving them.

A hat tip to my observant friend and fellow committee member, John Damaren of Malvern Condominium Property Management, for posing the question and calling me out on my absenteeism!

Got any other questions about meeting procedures? Send them in and we'll try our best to give a good answer.

Electric vehicle charging debate moves to Ottawa

Chris Jaglowitz — Fri, 27 Jan 2012 09:54:12 -0500

CBC Radio interviewed me as part of a news story about a unit owner wishing to charge his electric vehicle at his Ottawa high-rise condominium.

I had written about the emerging debate on electric vehicle charging in condo garages last year. It seems that more cases of owners wishing to charge electric vehicles in their buildings are emerging and that condo boards are scrambling to respond. Unfortunately, there appears to be a disconnect between owners and condo boards, with the result that these cases get off on the wrong foot, with confrontation rather than effective communication.

For one thing, owners are acquiring electric vehicles without first verifying that their condominium can actually accommodate their electricity needs. If the required service turns out to be unavailable, the vehicle owner is faced with a difficult situation and few options. Informing the board just prior to taking delivery of an EV is not sufficient because receiving board approval is not assured. The owner must, prior to acquiring an electric vehicle, determine whether the necessary service is available and whether it can be used for the specific purpose of charging a vehicle.

Next, condo boards must carefully consider an owner’s request, perform a delicate balancing act of several relevant factors and then provide a reasoned answer. Boards have a duty to ensure that owners have reasonable use of the condominium premises and services while promoting safety and preventing unreasonable interference with other owners’ use of the common elements and services. Rules governing the use of common elements ~~bad~~ and services must be reasonable.

Boards must also prudently manage the finances and monitor expenses being shared by all the owners. As we have said before, owners who wish to take advantage of additional services should be prepared to pay the freight. After all, the cost of the utility is a significant issue, with rates on the rise and the fact that electric vehicle ownership will likely increase over time. What might be a dollar a day right now can exponentially grow, driving up common expenses fees.

Cost, however, is not the only issue. Owners must keep in mind that condo boards must also consider technical and engineering aspects, safety, aesthetics, impact on other occupants and fairness to the unit owners as a whole. The board must analyze, weigh and balance various issues, competing interests and future implications. Unit owners often do not appreciate the numerous factors that boards consider when making decisions and are consequently surprised and frustrated when they do not receive a positive answer.

Complicating this scenario is the fact that many condominiums are not properly equipped to provide sufficient electrical service to all parking spaces. Indeed, the Ottawa unit owner in question must park in the visitor space in order to use the single plug that has sufficient voltage to run his charger. Where do visitors park? What happens if someone else wishes to charge an electric vehicle? The issues in this story therefore run deeper than just cost.

The situation at each condominium will be different, owing to their layouts, technical capabilities and the wishes of the unit owners as a collective. Each condominium must have a frank discussion as a community, consider emerging technologies and practices and then devise its own solution. Not everyone will be happy with the outcome, but compromise is a hallmark of condo living.

Join the debate. Watch the television piece here, then listen to the radio interview here and then share your thoughts below.

Microblog posts to 1/20/2012

Chris Jaglowitz — Fri, 20 Jan 2012 16:58:44 -0500

Our first microblog post of the year is jam-packed with good stuff, including plenty of pieces on the frenzy that is the Toronto condo market. While we can't yet tell if 2012 will signal the end of the upward swing, it will definitely be one hell of a ride.

COURT AND TRIBUNAL DECISIONS

ONSC: No discrimination in condo refusing owner's request to alter parking space to accommodate undocumented disability. http://bit.ly/sVLjyW

ONSC gives useful guidance on materials needed to approve reports & accounts of condo administrators and their lawyers. http://bit.ly/sFTQnY

ONSC: Unit owner improperly altered common elements, must sign s.98 agreement; condo's chargeback claim statute-barred. http://bit.ly/vAbfeR

ONSC amends condo declaration to correct as an "error" a sneaky move by the developer to escape zoning restrictions. http://bit.ly/w0Auz6

HRTO denies unit owner's bid to adjourn hearing, allow more time to resolve his complaint vs. condo. http://bit.ly/zlpx0x

HRTO: Hearing to continue despite unit owner’s procedural wrangling after sensing that his case is doomed. http://bit.ly/wSnOVa

HRTO: Disabled unit owner's complaint vs condo dismissed for duplicating a poorly-drafted court claim. http://bit.ly/zRsXbi

ONSC waives med/arb reqmt, rejects selective enforcement argument, orders removal of dogs from condo unit. http://bit.ly/yPyfPO

ONSC: Condo's construction deficiency lawsuit (commenced 3 yrs after performance audit issued) is statute-barred. http://bit.ly/yaBa4p

BCSC orders sale of strata unit after years of antisocial behaviour by owner's son. 1st time in BC. http://bit.ly/vZP5ry

ONSC upholds condo turnover election. Declarant was tardy and failed to deliver turnover docs. http://bit.ly/AExTGf

COMMENTARY / ARTICLES

Condo boards spark flames by extinguishing smoking in their communities http://bit.ly/uAAgXt (via Condominium Insurance Law blog)

Is that new condo a good investment? - http://bit.ly/szy1CV - Excerpt from @BrianPersaud's must-read book for newbie condo buyers.

RT @CCIGHC: A Holiday Message from our Fair Tax Team! http://ow.ly/i/nuq6 < 12 days of Condo Christmas. Priceless.

Top 5 disadvantages of living in a brand new condo - http://bit.ly/AxC391 (via @AndrewLaFleur)

RT @CDJNEWS: Condo Board May be Negligent for not Filing Construction Defect Suit in a Timely Fashion http://t.co/4Uxda8Dp

Handling the jerk next door | MoneySense http://bit.ly/vuz7Zi < Good tips on solving neighbour problems fast.

RT @BusinessMN: Legal Matters: Condo/townhome living can lead to unusual disputes - http://bit.ly/rW9hb3 Annnd how!

New at CondoLawGuru: What Happens When Too Many Complain and No One Wants to Serve on the Board? http://bit.ly/s8RwWS

Mediation: Less expensive and just nicer than taking neighbors to court - http://bit.ly/uthS5F < Co-op/Condo mediation basics in @HabitatMag

Link to the OBOA's pamphlet on changes to the Ontario Building Code that are effective Jan. 1, 2012: http://bit.ly/y3uWvK

Policies, procedures, rules, regulations and resolutions: What’s the difference?? - http://bit.ly/Aoa22Y (via @CCALawyers blog)

Crunching #condo fee figures - http://bit.ly/AcE5Qs

RT @canetwork: Rewarding Incompetence: A Common Management Snafu http://bit.ly/At7slT < The Peter Principle is alive and well in condoland.

Condos have various energy saving management tools – Daily Commercial News: http://bit.ly/xhlTrR

ONTARIO NEWS

Toronto auction of Muskoka condos causes more bitterness than buzz - http://bit.ly/vIbAWD

Investors fight to back out of Trump tower condo in #Toronto - http://bit.ly/tO62xJ

Angry Trump condo buyer wants out - http://bit.ly/uVb3Qq < Developer: "The world is not black and white" [except for our contract!].

Gadhafi son owns Toronto condo, National Post reports - http://bit.ly/soUpjE < Wonder whether being on the lam is against the condo rules.

Saadi Gaddafi's #Toronto condo frozen by Ottawa - http://natpo.st/zx18sW

Rush to get condo plans approved amid fears of #Toronto labour disruption http://natpo.st/xji9A4

Condo developers fret over city work stoppage - http://bit.ly/zi4bUe (via @CBCToronto) < Will bldg inspectors be affected too?

Most Ontarians want smoking banned in apartments and condos: Survey - Barrie Examiner - http://bit.ly/tAF6fO

Distressed man who lost condo then posted pics of councillor w/ word “murder” meant no harm, court rules - http://bit.ly/x2Vqzn

In 2010, I blogged abt the lawsuit that sealed the fate of that "distressed man" man who lost his condo. Sad case. http://bit.ly/yIfV9G

Speculators, foreign investors, betting on #Toronto condo market http://natpo.st/vlznrH < Condos are "pockets of air in the sky."

Most of $7.5B increase in Toronto's property tax base in 2011 came from new condos. Condo boom helps city’s finances: http://bit.ly/uWVwhU

One Bloor East reveals #Toronto's unquenchable thirst for condos http://bit.ly/AfGhm9 via @globeandmail < A head-shaker!

The Star: 2011 is Toronto’s year of the highrise - http://bit.ly/skyd0B

CANADA NEWS

Edmonton condo owners left hanging in reno dispute - CBC News http://bit.ly/rUiJTH < Looks like a failure to communicate!

New strata property regulations introduced in B.C. - http://bit.ly/tjwjwv

Evicted mom in BC plans to fight ruling requiring sale of her unit -http://bit.ly/xas8bk (H/T: @CANetwork)

US / INTERNATIONAL NEWS

Palos, IL Condo Board Race Gets Oily, say Police - http://bit.ly/vnynIe

Foreclosed Michigan condominium a health hazard and danger to others - http://bit.ly/ungExR

Epic Businessweek exposé on weird condo fraud: Las Vegas real estate scam goes bust - http://on.today.com/tLpCxV

Hoarders strike again. MA condo condemned after 1.5 year dispute - http://bit.ly/umUyln (H/T @247Condo)

Former property manager admits embezzling more than $400K from NJ condo association | The Republic http://bit.ly/rrxbga

FL: As community squabbles, Hanukkah begins http://bit.ly/tXsRcG

NC: Hoarding may have trapped man in deadly condo fire http://bit.ly/uhsB28

RT @canetwork Interesting look at former condo attorney, now politician, in Illinois (author's obviously not a fan)

Illinois circuit court judge candidate haunted by his gig as a condo lawyer; not remembered fondly by unit owners - http://bit.ly/zWTAIU

MAD TALK Gun etiquette: "Many condo association board members are interested in prohibiting concealed handguns... http://bit.ly/tX95eL

Disbarred FL attorney says his law firm had condo for sex with prostitutes » http://bit.ly/xb5x8w < Their idea of a work-life balance fix?

Crooked FL lawyer provided condo, free sex for clients - http://bit.ly/vZPMMa < Well, the pundits tell professionals to offer value-adds!

Condo may be liable for mishandling service dog - http://bit.ly/xQUKgJ (via Courthouse News Service)

Chicago turns vacant condo buildings into affordable rentals - http://trib.in/AhichJ < 150 condos already being converted.

RT @f_andreone: Aussie #strata smokers have more worries ... http://bit.ly/zuf7dN < Smoking in condos under siege down under

'John Condo' charged with defrauding developers - South Florida Business Journal - http://bit.ly/AtGeeQ < Ha! Was his middle initial "Q."??

Philippine Chief Justice denies owning 45 condo units - http://bit.ly/zHm7am

Top 10 condo law cases of 2011

Chris Jaglowitz — Fri, 30 Dec 2011 08:31:40 -0500

As one of our annual traditions, it is time to unveil our picks for the top 10 cases of the year gone by. 2011 brought us a bumper crop of condo-related cases by Ontario courts and tribunals, with almost 50 reported decisions cited in the @ChrisJaglowitz Twitter feed and frequently summarized in our microblog entries.

Here are our selections:

#10 -- York Region Condominium Corporation No. 890 v. RPS Resource Property Services, 2010 ONSC 3371

News of several condo frauds broke in 2011 but there was only one reported court decision on the topic, for a fraud between 2003 and 2005. The management firm here “borrowed” money from one condo to finance its own operations and those of its other condo clients and then repaid the money before year-end so as to avoid detection by the condo’s auditors. The plot unravelled when the condo changed managers and the fraudster was short $370,000 at year-end. The management firm and its principal were liable for breach of contract, breach of trust and conversion and were ordered to repay the $370,000. The condo’s claim against its bank was dismissed. We commented on this case and listed a number of takeaway points.

#9 -- York Condominium Corporation No. 26 v. Ramadani, 2011 ONSC 6726

The court granted a compliance order requiring the removal of a dog accused of peeing on a balcony. Despite the owner’s arguments, the condo was found to have acted reasonably in demanding the dog's removal. Condominium boards and managers must act reasonably in enforcing condo rules and what is “reasonable” will be decided on a case by case basis, but courts will not substitute their own opinion for that of the board or manager. Justice Strathy gives a good overview of the current law related to condo rule enforcement and his decision stands for the proposition that unit owners who think that a condominium must prove an owner’s wrongdoing beyond a reasonable doubt before taking steps against them are just fooling themselves and needlessly risking their financial security. The case also confirms that the court has a broad discretion in fashioning an appropriate remedy which minimally affects the unit owner but which effectively solves the problem.

#8 -- McFlow Capital v. Simcoe Condominium Corporation No. 27, 2011 ONSC 7389

The number of condominiums under court administration has grown over the past year, as has the number of reported decisions dealing with appointment of administrators and related issues. In this case, a motion for directions in an ongoing case that was named #8 in our top 10 list last year, the court gives useful guidance as to the materials that must be prepared and filed when condo administrators seek approval of the reports of their activities and the accounts for their fees and their lawyers’ fees. This is a good read for anyone trying to understand how a court-appointed administrator should report their activities and fees and the principles behind a court’s approval of those reports and accounts.

#7 – Three-way tie: Walji v. York Condominium Corporation No. 455, 2011 HRTO 1365, Parkinson v. Carleton Condominium Corporation #43, 2011 HRTO 1209 and Dai v. Metropolitan Toronto Condominium Corporation No. 971, 2011 HRTO 876

Here’s proof that the Ontario Human Rights Tribunal has become an increasingly popular venue for frustrated condo unit owners to bring grievances against condo boards and property managers. These are just three cases among a whole bunch of complaints that were summarily dismissed as not disclosing an actionable human rights violation or as having no prospect of success. The first case relates to statements by a board member that the owner’s unit smelled of urine. The second case alleged harassment when the condo required unit owners to remove protective weather stripping from their unit doors. The third case was brought by a married woman offended by the condo president addressing her as “Miss.” While these three cases were dismissed, the unit owners who brought them felt sufficiently aggrieved by shoddy treatment by the board or management. Condos can and should avoid these kinds of proceedings by treating their owners respectfully and managing disputes more proactively.

#6 -- Jakobek v. Toronto Standard Condominium Corporation No. 1626, 2011 HRTO 1901

Just because complaints to the Human Rights Tribunal are often unmeritorious doesn’t mean they can be ignored. In this case, the condo corporation and its management firm failed to provide a meaningful response and did not participate at the hearing of a unit owner’s complaint related to the condo’s refusal to accommodate a disabled person. After hearing the unit owner’s evidence (no one from the condo attended), the Tribunal smacked the condominium and its management firm with a $5,000 fine, ordered the condo to amend its bylaws to permit parking mobility-assisting scooters in the garage and ordered the condo and its manager to read up on the duty to accommodate. Condo corporations that don’t actively respond to and manage HRTO proceedings are playing with fire.

#5 -- Pantoliano v. Metropolitan Condominium Corporation No. 570, 2011 HRTO 738

This was a human rights complaint by a unit owner over condo pool rules that set separate swim hours for kids, prohibited children under age 2 from using the pool and completely banned diapered individuals (baby or adult). The Tribunal confirmed that age restrictions in recreational facilities at condominium complexes are discriminatory on the basis of family status and consequently struck down the offending rules and awarded the complaining unit owner $10,000 as damages injury to her dignity, feelings and self-respect in response to a hostile environment created by the board during the proceedings. This case reminds us that the concept of adult-only buildings is utterly dead in Ontario.

#4 -- Waterloo North Condominium Corporation No. 168 v. Webb, 2011 ONSC 2365

In what is probably only the fifth case of its kind, the Ontario Superior Court granted the extraordinary remedy of forcing a unit owner to sell and vacate a condo unit. In this case, featuring a very brief decision, the court cited years of aggression, violence, threats, vandalism by the unit owner as justification for the remedy. What’s noteworthy is that this case, like the Korolekh decision of 2010, appears to have been decided on its first appearance, but for an even more modest cost. This case is a good example of how an efficient, economical and effective compliance application can deal with anti-social behaviour by problem unit owners. More like these will follow.

#3 -- Pate v. Sinclair, 2011 ONSC 3997

Condo resale agreements often include a condition allowing the purchasers to back out of the deal if their lawyer is not happy with the status certificate issued by the condo corporation. At issue in this simple discovery motion in a lawsuit over an aborted condo purchase was whether purchasers must answer questions about their lawyer finding the status certificate to be unsatisfactory. In a nutshell, while a lawyer’s opinion and advice to purchasers would normally be protected by lawyer-client privilege, the privilege related to the opinion itself was waived by the purchasers when they pleaded in their defence that they relied on the lawyer’s opinion in terminating the transaction. Any advice given by the lawyer as to whether the agreement could legally be terminated would be protected by privilege, but issues surrounding the purchasers’ instructions to their lawyer to terminate the transaction and the issue of “whether” the lawyer gave any advice are not protected and questions about those aspects must be answered. While it’s not very sexy, this case is a gem for real estate litigators who will get busier when the local real estate market corrects and purchasers seek to nix their deals. The case also reminds purchasers relying on this clause that they cannot use it in a capricious manner or in bad faith.

#2 – Schneeberg v. Talon International Development Inc., 2011 ONCA 687

In a case related to the new Trump Tower in Toronto, the Ontario Court of Appeal agreed that a purchaser was entitled to terminate his new condo purchase agreement because the developer failed to provide occupancy and close the transaction on the specific closing date set out in the agreement. After a good overview of the law of contract interpretation, the court said that “[t]he proper functioning of the complex and rapidly growing condominium industry depends on agreements that set out all rights and obligations of the parties in a clear fashion.” Purchasers at other projects shouldn’t get too excited, however, because the wording of the contract in this case had a gaping hole through which the lucky purchaser beat a hasty retreat when the project got delayed and the economy turned south. “The Donald” likely isn’t very happy with the lawyers who drafted the agreement for this project.

#1 -- Orr v. Metropolitan Toronto Condominium Corporation No. 1056, 2011 CanLII 66010 (ONSC)

Weighing in at 422 paragraphs on 75 pages, it’s only fitting that this behemoth decision, the product of 12 years of litigation ending in 40 gruelling days of trial, makes the top of our list. At issue in the case was an unauthorized third floor built into the common elements by a previous owner who sold the unit to a purchaser who believed that the third floor was part of her unit. See Bob Aaron’s column for a short summary of the facts. To briefly summarize the result, the court dismissed the purchaser’s claim for an order legitimizing the third floor, granted the condo’s request for an order requiring the purchaser to close up the third floor, and awarded damages against the purchaser’s lawyers for negligence in failing to check the floor plans and tell the purchaser that the third floor was not part of the unit. This single case is worth an entire series of smaller posts on a large number of issues, chief among them being the higher standard by which lawyers will be held in handling condo purchase transactions. The effects of the case are only beginning to manifest themselves in the real estate bar and will likely give rise to an increase in costs for consumers. Rumour has it that this case has been appealed, making it possible that our Court of Appeal might comment on some of the more salient legal issues, so there will likely be more that we can write about in the future.

And that concludes our list for this year! Which of these cases are your favourites? Would you have chosen any different cases? Do you have any observations about the trends in the cases we’ve chosen? Submit a comment below to give us your two cents.

For you impatient types who would rather not wait until next December to see the top cases of the coming year, follow @ChrisJaglowitz on Twitter and watch our microblog posts to receive frequent updates during the year.

Thanks for following our blog this year and for all your comments, kudos and support. Visit us again in January when we dust off our crystal ball and make some predictions about which issues will define condo law in 2012.

My nominations for 2011 Clawbies

Chris Jaglowitz — Fri, 23 Dec 2011 12:03:21 -0500

As another year-end draws closer, it’s time to submit nominations for the annual Canadian Law Blog Awards. The “Clawbies” recognize the work of Canadian legal professionals who share their insight and expertise through a blog.

Details about the awards, the nomination process and previous winners can be found here. You can also keep track of this year’s nominations by searching #Clawbies2011 on Twitter.

Here are my three nominations for the 2011 Clawbies, in no particular order:

Thoughts on Ontario’s Landlord & Tenant Law by Harry Fine

Most lawyers in the trenches have done some residential landlord/tenant work at some point in their career. While the annotated statutes cite the latest leading authorities on a particular point, those annual tomes provide little insight into what happens at the tribunal, what’s going on at Queen’s Park or the backrooms of the industry associations. Enter Harry Fine, a paralegal and former member of the old Landlord and Tenant Board. Harry shares his view on the imbalance in our landlord and tenant law and the legislative thought process going on in the background. He also provides rare commentary on trends at the tribunal and in the marketplace generally. Groundbreaking case law is also highlighted. Any legal professional working in landlord tenant law would find this blog to be useful. Further, if you’re thinking of becoming a landlord, do yourself a favour and peruse Harry’s blog before you take the plunge.

SQP jeunes avocats | virtual mentor for new lawyers by Lee Akazaki

Lee Akazaki is one of those tireless people who can’t rest on his laurels or take a minute away from doing good things. Fresh off of his stint as President of the Ontario Bar Association, Lee has set up a blog to provide mentorship to an entire generation of young lawyers and which offers deep insight into trends affecting the legal profession, case comments, war stories and calls to action on hot topics. In addition to providing high quality stuff, the delivery method is far more efficient than traditional mentorship in that it can reach thousands of people and stand as a valuable resource for years to come. Even more, the benefit of Lee’s efforts extends far, far beyond the newbies and is of interest and practical use to even the more seasoned practitioners.

Canadian Charity Law by Blumberg Segal LLP

With the holiday season upon us, charities and their supporters are operating in red alert mode. They doubtlessly spend the rest of the year getting ready for these busy few weeks. To be at the top of their game, charities (and their lawyers and any donors wanting to avoid charity scams or pitfalls) should follow Mark Blumberg’s blog for breaking news and resource materials in this niche area of law. This unassuming little blog is nicely searchable and has been frequently updated since its launch in late 2007.

These are but three of many top notch Canadian law blogs out there. If you need a break from the egg nog during the holidays or have a problem that needs solving, visit “the” authoritative list of Canadian law blogs at www.lawblogs.ca. You’re sure to find something of interest there.

Best of luck to all nominees!

Toronto condos a refuge for the damned?

Chris Jaglowitz — Tue, 20 Dec 2011 08:54:33 -0500

Toronto’s reputation as an international city and condominium capital knows no bounds.

The National Post reports that a Toronto condo unit owned by the son of the late Libyan despot Muammar Gaddafi has apparently gone unnoticed by whoever enforces UN-imposed sanctions in our country. Ownership of the $1.6 million penthouse at 10 Navy Wharf was held in Gaddafi Junior's own name or some variation thereof.

The Post’s exposée on the Gaddafi penthouse is here:

Saadi Gaddafi owns a $1.6M penthouse in Toronto

Ottawa asks RCMP to investigate Gaddafi son's Toronto condo

Libya lays claim to Gaddafi's condo

The latest news is that the new Libyan regime is looking to claim the unit as an asset of the state. If that bid is granted, hopefully the condo board will send the Libyan embassy a copy of the building’s by-laws, rules and elevator booking policy before a problem arises and turns into an international incident.

In possibly-related international news involving Canada and Libya, there is no indication that Cynthia Vanier, the Canadian citizen implicated by Mexican authorities in the plot to help the Gaddafi family flee to Punta Mita, planned to use the Toronto condo as a safe house at any point. Mexican investigators will no doubt look long and hard at this growing Canadian connection in deciding whether to stage some elaborate “prosecution.” Vanier's family says she is innocent.

And before leaving the topic of playboy sons of dead tyrants, has someone checked the land registry records for condo units owned by Kim Jong-un? If not, local condo managers might keep watch for any raucous wakes held in their party rooms for the late North Korean strongman Kim Jong-il. Just report your findings to the nearest UN office.

Microblog posts to 12/10/2011

Chris Jaglowitz — Sat, 10 Dec 2011 09:40:15 -0500

What a crazy few months it has been. While we haven’t been posting as many blog entries as we’d like, there’s been plenty of action on the Twitter feed. In case you're not receiving the live feed, here’s a compilation of the best stuff from recent weeks.

Courts / Tribunals

ONCA: Declarant’s failure to set up cost-sharing regime for mixed-use multi-condo complex not oppressive. Buyer beware. http://bit.ly/v5h9Km

ONSC denies prchsrs bid to legalize common element attic. Real estate lawyer liable for not checking condo floor plans. http://bit.ly/urnj0V

HRTO fines condo $5K for tardy answer to disabled owners' request to store scooter in parking unit; orders bylaw change. http://bit.ly/tb9rbR

SCC: Loser Pays principle doesn't apply to Canadian Human Rights Commission - http://goo.gl/l6iph (H/T @APribetic)

ONCA: Proper functioning of complex, rapidly growing condo industry needs clear agrmts setting out rights, obligations. http://bit.ly/tH715q

ONSC nixes developer’s bid to dismiss condo construction deficiency suit. Tarion decision doesn't bar such lawsuits. http://bit.ly/tUUdIR

ONSC orders unit owner to remove dog accused of peeing on balcony. Condo acted reasonably in demanding dog's removal. http://bit.ly/t5CMVc

ONLRB: Condo employees to vote on union representation after condo doesn't respond to certification application - http://bit.ly/sjaZz9

ONCA: Test for bias by a municipal by-law officer is "reasonable apprehension," but test not to be applied "strictly" - bit.ly/sZ56OO (H/T @ABMunicipal)

ONSC sets referendum rules for owners at dysfunctional condo to decide whether to continue court administration. http://bit.ly/usxjbk

Ontario News

YorkRegion Article: Condos cash in on cell antennas - http://bit.ly/pQ9etJ

Quiet riot: Condo developers catch on to the electric vehicle | National Post http://bit.ly/oDLurv

As condos get smaller, downsizing boomers fret: http://bit.ly/vtezGh (@Moneyville)

Muskoka Wharf puts condo-hotel units on auction block - Yourhome.ca http://bit.ly/w44Ehg

Going once, going twice ... Muskoka Wharf suites to be auctioned off - The Globe and Mail http://bit.ly/trNPjQ

Muskoka condo auction starting at $85,000 - Moneyville.ca http://bit.ly/soRNIv

Our #condo frenzy continues unabated. MT @BuzzBuzzHome: In Toronto there is a condo sold every 20 minutes!! INSANE! -> http://ow.ly/7kiNL

Condo tower to be built on dormant city-owned property http://natpo.st/tT6fnY < Good on #Toronto for cashing in on the condo frenzy.

RT @davidhyde2: Condo security guard shot on Toronto's harbourfront. Crime prevention should be a top priority in the condo environment globaltoronto.com/three+men+stab…

"Disposable" Condominiums

Toronto's glass condos face short lifespan, experts say - Toronto - CBC News http://bit.ly/spqOXz

Ontario should consider emergency change to building code on balcony glass: Report – http://bit.ly/sBGAAJ

Cdn Condominium Institute says planning, education, industry & govt initiatives needed to address glass tower issue: http://mwne.ws/vyJs2b

What's the matter with Toronto's condos? | OpenFile http://bit.ly/vw1U4R

Canada News

MT @LawTimes: Tougher penalties for white-collar crime come now in force http://bit.ly/s8yedB < Restitution orders possible in fraud cases.

RT @strata101: Council blames the manager; manager only takes council direction. Both need consequences for bad behavior: shar.es/bxfuk

Condo owners [waiting to reap the windfall of a multimilliondollar lawsuit] vote to rebuild http://bit.ly/sxPI9D < Good luck with that.

Calgary company's online tool helps businesses [and condos] avoid paper invoices and cheques: http://bit.ly/tsy2Q3

Montreal condo-building frenzy ‘not sustainable’ http://bit.ly/rybJX1

Newfoundland proclaims new condominium act - http://bit.ly/sAIMKI

Bank of Canada to condo investors: Possible correction ahead - http://bit.ly/slgtiF

US News

Lawyer pleads guilty in scheme to elect condo directors favoring construction lawsuits - ABA Journal http://bit.ly/rHCSaZ

Developer linked to Playboy model to plead guilty to mail fraud - TheSunNews - http://bit.ly/utOsfu

RT @syladurantaye: NYTimes: Law firm's surprisingly stupid Halloween costumes make fun of their foreclosure clients. nyti.ms/utyk0s

Chris Brown moves out of condo; Neighbors say: Good riddance! http://bit.ly/vseyOQ

Proof that being nice doesn't always work: Charges laid after NY condo fails to end 6-yr rampage by alleged pervert. http://lohud.us/titYLN

HUD charges VA condominium association with discrimination over service animals: http://bit.ly/sJiqGf

Misc. Commentary / Articles

Arbitration becoming the tool of choice for construction dispute resolution – Daily Commercial News http://bit.ly/onemkP

Get used to unfolding those condominium plans http://bit.ly/p2F5KTvia @LawTimes < Seismic shift in how lawyers handle condo conveyancing.

Nasty neighbours dispute resolved on the public purse: The lessons learned. http://bit.ly/v9xUBO < Good lesson for condo boards, too.

Ok. I won't wear dracula costume to client meeting. MT@lawyersweeklyca: Planning your Halloween costume? Some advice: http://bit.ly/nF74O2

RT @CondoandHOALaw: Failure to address elevator maintenance comes back to haunt Condo Association bit.ly/ru8kHe

RT @harry_fine: Toronto Sheriff not breaking 4 holidays 4 evictions this year. They can’t believe volume increase, say its cause tenants know all the tricks.

Condominium repair, maintenance are lucrative markets for construction – Daily Commercial News http://bit.ly/sFF53R

Annual Meetings 101 - http://bit.ly/vUVwLL < Good piece for AGM season by @TheCooperator mag.

Water leaks deliver flood of problems in condo maintenance – Daily Commercial News: http://bit.ly/sn5Fu8

About condos and the blog entry that never dies - http://bo.st/t20X86 < How can well-meaning, sane people work effectively with a condo bd?

What makes bed bugs so resilient? Blame inbreeding. http://bit.ly/rBhqiL

Does your community ass'n have a social media policy? - College of Community Association Lawyers Blog: http://bit.ly/uI1OPo

RT @chris_antipas: This couple had a two-dog condo problem - Moneyville.ca: bit.ly/sR7Qm6

2011 CCI-T/ACMO Condo Conference

See you at the condo conference! @GMALaw lawyers are featured at sessions 2A, 2B and 2C. http://fb.me/1rzyYNGWh

Get the mobile app for the 15th annual #CondoConference Nov 4-5 in Toronto: http://bit.ly/uAUaio

Condo Conference Features Sessions on Risk Management, Chaos, Environmental Issues http://mwne.ws/swVIEG

Hats off to @Associa for sponsoring the Night at the Races for the CCI/ACMO Toronto #condoconference!

RT @theMarcDonald: Met @chrisjaglowitz tonight. Handsome condo lawyer stud. Look out folks, he is kickin ass, and taking names.<Ha! u2 Marc.

Inspiring keynote by Frank O’Dea at #condoconference.

RT @theMarcDonald: Great presentation from Frank O'Dea, founder of second cup. Homeless to world changer - great story. #cci

RT @CCIGHC: Great Conference and Tradeshow CCI Toronto and @ACMOnews we look forward to next year!

Ottawa Condo Rule Story

Rent to families only, condo tells landlords - http://bit.ly/w0rPIX < Rule unnecessary if declaration requires single family use.

Students feel discriminated by condo executives - Ottawa South Local Community News http://bit.ly/t8bVvs <Welcome to school of hard knocks.

YourOttawaRegion Article: Condo AGM postponed after students submit petition http://bit.ly/uIKA6v < Condos as the sandbox of democracy?

Students lose vote to overturn “discriminatory” condo rule http://bit.ly/sCHLDY

Ottawa condo board prez denies discrimination re single family use rule: http://bit.ly/sMgZVg

GMA in the news

RT @LawTimes: Focus: Liens a key option for condos http://twurl.nl/x8ihg3 < Notable quotes from GMA's Bob Gardiner.

Toronto #Remembrance Day ceremony as seen from @GMALaw office. Sun shining up Bay St onto cenotaph. Big crowd. http://yfrog.com/nw9hewyj

I'm featured in the recent CondoBusiness video report on condos using social media responsibly. http://lnkd.in/t9NnGd

Gerry Miller consulted in Hamilton Spec story on owners' obligation to pay condo common expenses by PAP. http://fb.me/FAvRMlFJ

Chris Jaglowitz quoted in Sept 19 Law Times on NDP plan for the Condo Act and on growing power of condo voting bloc. http://fb.me/ODXtQ4eG

GMA Condo Alert! (2011 Condo Conference edition)

Chris Jaglowitz — Thu, 17 Nov 2011 11:38:59 -0500

Each of the 1,000+ attendees at the spectacular ACMO/CCI-T Condominium Conference earlier this month received a complimentary copy of the Conference Edition of our Condo Alert! newsletter in their delegate bag.

In case you missed the conference, you can pick up this special edition newsletter (in pdf) here or by clicking the picture on the right.

Topics include:

Tendering
Hoarding in condo units
Human rights vs. Health and safety in pools

Our thanks to everyone who attended the educational sessions hosted by GMA lawyers or who stopped to chat with any of us on the conference floor. We were thrilled to see so many friends (old and new) and we're already looking forward to next year.

CCI wants to know: Does the tax man cometh?

Chris Jaglowitz — Mon, 31 Oct 2011 12:19:08 -0500

Condo corporations just can't seem to catch a break these days. First there was HST. Then there is proposed federal flag-flying legislation intended to restrict condos' ability to enforce their rules. Now more financial grief.

The latest from Ottawa is that Canada Revenue Agency is suggesting potentially new tax treatment of various income streams that most condos receive and the possible loss of the not-for-profit status of condos receiving such income. If acted on, this proposal would have major repercussions on condominiums and would require greater financial reporting, additional tax returns and collection/remission of taxes when it might not be necessary or worthwhile. This is just one more costly headache that will complicate the lives of condo directors.

Luckily, the Canadian Condominium Institute is on the case. Their national finance committee is looking to gather and compile information to help spread the word and, presumably, to help develop a position on CRA's proposal and advocate on behalf of condos and their owners.

See below for CCI's call for information that was circulated today. Please submit whatever useful information you can and be sure that your condo joins the local CCI chapter nearest you.

CCI National has become aware that some of our condominium corporation members have recently received letters from the Canada Revenue Agency (CRA) stating that certain types of income earned by the corporation (e.g. rental income from roofs, parking spaces, antennas, etc.) may now be considered taxable. This may potentially cause the condo to lose its NFP status. Such loss of status would have a serious financial impact on condo corporations, as they would become liable for income tax and GST/HST.

As a professional member in the legal/accounting field, we would appreciate knowing if you have experienced this, and if so, would you kindly forward to National Office any correspondence you have received from the CRA (with names blacked out for privacy) so that the CCI-N Finance Committee can compile this information.

It is our hope to get a better picture of what is taking place and to ensure that we can keep our members better informed of any new developments.

We thank you for your assistance.

F. Diane Gaunt
National Executive Director
Canadian Condominium Institute
2175 Sheppard Ave. E., Suite 310
Toronto, ON M2J 1W8
Email: cci.national@taylorenterprises.com
Fax: (416) 491-1670

Where did all the Condo Act forms go?

Chris Jaglowitz — Mon, 24 Oct 2011 17:30:29 -0500

In the 10 years that the Condominium Act, 1998 has been in force, the prescribed forms needed for the extraordinary events of a condominium’s life and its day to day operations have been reliably set out in the regulations under the Act.

Until now.

Effective September 1, 2011, the two regulations under the Condo Act were significantly amended. The biggest change is that all of the prescribed forms under those regulations are revoked and users are now referred instead to “the form that the Director of Titles specifies” or “the form that the Minister responsible for the administration of that subsection specifies.”

As an example, subsection 33 (3) of the general regulation used to read as follows:

The notice that the board is required to send under subsection 94 (9) of the Act shall be in Form 15.

That subsection is revoked and replaced with the following:

The notice that the board is required to send under subsection 94 (9) of the Act shall be in the form that is entitled "Notice of Future Funding of the Reserve Fund" and dated September 1, 2011, as it appears on the Government of Ontario website.

After several minutes of searching, I was completely unable to find the new forms on the government website. Luckily, my colleague Warren Ragoonanan had somehow found the right page and sent me a link. It is here. Try not to lose it since you’ll be hard-pressed to find it yourself and the new forms are not yet searchable using the government’s online "central form repository."

The old forms can no longer be found in current versions of the regulations and will not be attached to regulations in the future. Thus, the only authoritative source for current forms will be online. All those forms are now deposited here:　

You’ll see that this new forms webpage refers to the "previous form numbers" but the numbers no longer appear on the forms themselves. Those old form numbers no longer have any legal significance and will eventually fade from use, likely at about the same time that we stop referring to the Condo Act 1998 as the "new act". Many of the old timers will, no doubt, continue to date themselves by referring to a "notice of lien to owner" as a "Form 14" for far longer than is fashionable.

In addition to the fact that most of us woke up one morning and found that the old prescribed forms had vanished overnight, condominium professionals are likely perturbed by not knowing for sure whether the new forms are different from the old ones. For one thing, reference to the old form numbers has been removed from the titles of all the new forms. It is therefore conceivable that there are other changes, although a superficial glance suggests that the new forms are otherwise familiar. Do your own quick check.

For full text of the amendments to the regs, see:

O. Reg. 442/11, which amends the “general” regulation known as O. Reg. 48/01.

O. Reg. 443/11, which amends the “description and registration” regulation known as O. Reg. 49/01.

For your convenience, a link to the new Condo Act forms webpage is now permanently available in the links section at the right-side of our blog’s main page.