Condo Living

July 12, 2019 Published by Toronto and Area Chapter - By Alex Young

Grounding Potential Resistance

From the Summer 2019 issue of the CCI Toronto Condovoice Magazine.

The Last Word

Grounding Potential Resistance

Navigating the Legal World of Electric Vehicles

On May 1, 2018, the electric vehicle charging system (“EVCS”) provisions under Ontario Regulation 48/01 (the “Regulation”) to the Condominium Act, 1998 (the “Act”) came into force. In short, the new provisions: 1) set out the process for a condo corporation to obtain approval to install an EVCS on the common elements (the “Corporation-made EVCS”) without having to comply with s. 97 of the Act (as necessary in the typical corporation-made common element modification scenario); and 2) set out the process for an owner to request and obtain approval to install an EVCS on the common elements (the “Owner-made EVCS”) without having to comply with s. 98 of the Act (as necessary in the typical owner-made common element modification scenario). The new provisions have created a slew of unique scenarios with interesting legal implications, so the following are some helpful tips for navigating the legal world of EVCSs.

Prior to proceeding with a Corporationmade EVCS, a corporation would be wise to survey owners to gage interest. Under s. 24.3(6), all Corporation-made EVCS costs are a common expense of the Corporation. As such, it is helpful for a corporation to know that there is broad owner support before undertaking a potentially expensive project.

From a practical perspective, it may be more economical for a corporation to install its own communal Corporationmade EVCS rather than respond to and facilitate numerous individual owner requests for Owner-made EVCSs. Unfortunately, under s. 24.5(8) of the Regulation, a corporation may only reject an Ownermade EVCS application if a professional report or opinion obtained by the corporation indicates that the Owner-made EVCS installation: 1) will be contrary to any general or special Act or regulations or by-laws made under that Act (but not including anything in the declaration, bylaws or rules of the corporation); 2) will adversely affect the structural integrity of the property or assets, if any, of the corporation; or 3) will pose a serious risk to the health and safety of an individual or of damage to the property or assets of the corporation. As such, where a corporation is set on implementing its own installations, its best recourse is to try to convince the owner to rescind his/her application by espousing the virtues of the Corporation- made EVCS.

Under s. 24.6 of the Regulation, if a corporation accepts an Owner-made EVCS application, the corporation and owner must enter into an EVCS agreement within 90 days (or such other time period as agreed to by the parties in writing). A corporation should take control of the EVCS agreement process by: 1) obtaining from the owner an upfront retainer for legal fees for drafting, negotiating and registering the agreement on title to the owner’s units; and 2) in conjunction with the corporation’s lawyer, developing a good precedent EVCS agreement. Among other things, the EVCS agreement should be drafted to require the owner to use only a designated licensed contractor or the corporation’s contractor; and to make the owner liable for all reasonable costs in connection with the installation, including, without limitation, for materials, labour, electricity, insurance, permits, licenses, clearance inspections, certificates, damages, liens, taxes, registrations and legal fees.

The Regulation’s new EVCS provisions are a unique feature in the world of condo law. They provide a potentially expedited approach to a very specific type of common element modification. Condo corporations should work closely with their lawyers as they start to receive EVCS applications and contemplate how they want to address owner demand for this burgeoning new technology.