Legal

December 20, 2021 Published by Eastern Ontario Chapter - By Graeme Macpherson

2021 – Looking Back at Changes and Developments in Condominium Law

From the Volume 30 issue of the CCI Eastern Ontario Condo Contact Magazine

Well, just like that, another year has passed us by. 2021 certainly had its ups and downs and can’t be accused of being a boring one! A lot of big things happened in health, world politics, and of course, condo law. While of course it is impossible to list every condo law development that has occurred over the last 365 days, in our view, some of the main updates can be broken down into four categories:

Masks in Condos

Over the course of the pandemic, condominiums across Ontario began passing mask policies for the protection of its residents and occupants. In general, these policies required occupants to wear masks while in the common elements or while using common amenities.

In March 2021, in Burlington, ON, one of these mask policies became the subject of litigation when two owners at HCC 77 refused to wear a mask in accordance with the condo’s policy.

Ultimately, the owners were ordered not to be on any part of the common elements without a mask, as exercising in the halls or visiting other floors in the building without a mask constituted dangerous activity in breach of section 117 of the Condominium Act. As such, the Court issued a compliance order and a permanent injunction prohibiting the owners from doing so.

However, the Court carved out an exception permitting these owners to transit through limited common elements without a mask, but only for the purpose of egress and ingress by the most direct route.

We learned a few very important lessons from this case:

• Condos have the authority to make and issue health-related policies, including mask policies (so long as such policies are in conformance with local by-laws);
• In the context of the pandemic, developing and promulgating a mask policy is necessary;
• Condo boards have the right, and indeed the obligation, to insist upon conduct by residents that does not place the other residents at undue risk;
• Owners must conduct themselves in accordance with the rules of the community with due respect and consideration for their neighbours. This is particularly acute in the context of a pandemic where not wearing a mask may potentially have serious or deadly consequences for one’s neighbours.

You can read the case for yourself at: https://www.canlii.org/en/on/onsc/doc/2021/2021onsc2071/2021onsc2071.html?autocompleteStr=mitrovic%20halt&autocompletePos=1

Since this case, there have been a few more cases about such polices, which have confirmed the points above, but this was the case that started it all.

Vaccinations in Condos

One of the other big policy questions that condominiums had to consider was whether condos should, or could, require proof of vaccination to allow access to their amenities.

However, the Provincial regulations with respect to vaccines are worded in such a way that the condominium industry has, in general, reached a consensus that condominiums are not required to request proof of vaccination of its residents.

Indeed, the regulations provide that the person responsible for a business or organization must require that each “patron” provide proof of full vaccination at the point of entrance to access certain amenities, including gyms and fitness centres.

The industry has independently come to the consensus, for the time being at least, that the term “patron” does not include condominium residents. As such, the requirement to obtain proof of vaccination does not apply to them.

Does this mean that condominiums are not entitled to request proof of vaccination? Maybe not—although there can be no doubt that vaccination verifications would pose serious logistical challenges for condominiums. These challenges can likely be avoided by opting instead to close amenities during unsafe times.

The Expansion of the CAT

Towards the end of 2020 (on October 1), the Condominium Authority Tribunal expanded its jurisdiction beyond records disputes to include disputes regarding pets, parking, storage, and chargebacks for these items.

It has been incredibly interesting to see how the CAT has responded to this expanded jurisdiction. The main takeaway is that while the jurisdiction may, at a glance, still seem quite restricted, it goes much further than one may initially think.

For example, the CAT’s new jurisdiction has given it the authority to order that:

• Pets (and even service animals) may be evicted from a condominium (check out PCC 96 v Psofimis, 2021 ONCAT 48 and HSCC 490 v Paikin, 2021 ONCAT 95);
• Purported amendments to a declaration were invalid and unenforceable (see TW Cross Investments v PSCC 1052, 2021 ONCAT 58); and
• While a condominium may label something as a “Policy”, it may in fact be a rule, which in turn, may not be enforceable (see Boodram v PSCC 843, 2021 ONCAT 31).

We are also seeing the CAT beginning to award the successful party its legal costs if there are exceptional reasons to do so.

It will definitely be interesting to see how the CAT’s jurisprudence continues to develop in 2022 when its jurisdiction expands again to include nuisance!

Clarification on Legal Fee Chargebacks

As many of our readers will know, in 2020, there was a bit of an upheaval in the condominium industry that has called into question how condominiums can charge back owners for legal fees related to enforcement of the condo’s governing documents.

Most condominiums’ declarations contain a provision confirming that any legal fees that the condo incurs in enforcing its governing documents can be charged back to the offending unit in the same manner as a common expense. In 2020, the Amlani decision casted a shadow of doubt on this. This case has been discussed at length, so we will not summarize it here. However, its ultimate suggestion seems to have been that in order to charge back enforcement-related legal fees in the same way as common expenses, a Court order would first be required.

This case seems to have recently been recently been confirmed in OCSCC 671 v Friend, 2021 ONSC 7379. In this case, the Court found that notwithstanding the condo’s indemnification provision in its declaration, the condo was not entitled to charge its enforcement-related legal fees to an owner in the same manner as a common expense. In order to do so, according to the Court, a court order is first required.

However, 2021 also gave us another very important decision which confirmed that there is a difference between legal fees related to enforcement and legal fees related to collection of common expenses. In O’Regan v CCC 169, 2021 ONSC 945, the Court clarified that condominiums are entitled to charge back the legal fees they incur in association with collection of outstanding common expenses. This includes legal fees associated with collecting on chargebacks.

In O’Regan, the condominium registered a lien against an owner in respect of costs it incurred to repair units and common elements after the owner caused a fire in his unit. The condo naturally charged its associated legal fees back to the unit. The owner contested this in court, unsuccessfully.

So where does this all leave us?

• Condominiums continue to have a duty to enforce the Condominium Act and their governing documents;
• Condos should budget for some legal expenses associated with such enforcement that they may not be guaranteed to recover (especially for smaller compliance matters where a Court application is not required);
• Condominiums can continue to charge back the legal fees they incur that are associated with their collection, or attempted collection, of common expenses.

We know that this is all a lot to unpack. Naturally, we are not able to refer to every development in condominium law in this article, nor are we able to expand fully on each topic referenced. However, we hope this summary of the year provides some starting guidance on these issues.

Here’s to another year and many more interesting ones to come!

---

Graeme Macpherson has been a lawyer at Gowling WLG since 2018, where his practice focuses on civil and commercial litigation, with a particular emphasis on condominium law. As a large part of his practice, Graeme advises and assists condominium corporations, unit owners, boards of directors, and property managers with a number of matters, hosting meetings (both virtual and in-person), collections, rule disputes, and documentary drafting/interpretation. Graeme also represents clients in a wide variety of other commercial litigation matters, including contractual and statutory disputes.