Legal

December 16, 2023 Published by Eastern Ontario Chapter - By James Davidson

CCI-EO – Year in Review 2023

From the Volume 36 issue of the CCI Eastern Ontario Condo Contact Magazine

2023 began with a terrible shadow cast by a tragic event from late 2022.

2023 began with a terrible shadow cast by a tragic event in Vaughan from late 2022. As most people are aware, a condominium owner, who had been involved for years in a dispute with its condominium corporation, killed five residents of the building (including three directors).

The events in Vaughan showed the serious safety risks that are sometimes faced by condominium Directors. Condominium corporations are statutorily obligated to deal with violations, including improper conduct, by persons on the condominium property. In meeting this obligation, the Directors can be exposed to unstable, sometimes violent individuals (as the events in Vaughan so tragically demonstrate).

The events in Vaughan showed the serious safety risks that are sometimes faced by condominium Directors. Condominium corporations are statutorily obligated to deal with violations, including improper conduct, by persons on the condo-minium property. In meeting this obligation, the Directors can be exposed to unstable, sometimes violent individuals (as the events in Vaughan so tragically demonstrate).

In the wake of the Vaughan tragedy, stakeholders in Ontario’s condominium industry – including CCI – have been exploring legislative amendments that might offer greater protection for condominium Directors. Ideas include:

• Enhanced legislative requirements for violence and harassment policies in condominiums.
• Increased controls over access to residence addresses of owners and Directors.
• Increased possibility for intervention by mental health authorities in relation to condominium disputes.
• Increased Criminal Code or Provincial Offence protections for mistreatment of condominium Directors and Officers.

In my view, condominium Boards also need to be vigilant when engaged in any sorts of disputes with owners / residents. An ever-CONDOCONTACT | Volume 36 15 FEATURE present question should be: Is there any risk of violence? Whenever in doubt, Boards should seek input from legal counsel, security experts and mental health experts about any steps that might be taken to manage risks of violence (including the unique risks of violence against condominium Directors). Condominium budgets should include provision to cover any related costs.

LEGISLATIVE AMENDMENTS

Amendments to Ontario’s Condominium Act have “slowed down” in recent years (compared to the frantic pace of amendments that we saw in the late 2010’s). However, there was one set of key amendments in 2023. Effective October 1, 2023, a number of amendments to the Condominium Act came into effect in relation to virtual meetings and related matters. By way of overall summary, the amendments serve to:

• Facilitate the virtual transmission of notices and other condominium documents.
• Allow corporations to conduct virtual/ hybrid meetings (of both the Board and the owners) and to conduct voting either virtually or in hybrid form.
• Make permanent the temporary provisions of the Condominium Act that allowed for virtual meetings, and for electronic voting and delivery of meeting materials, which had been set to expire on September 30, 2023.

A key additional note is that the amendments allow persons to attend a meeting of owners by voting in advance of the meeting.

KEY CASELAW

In terms of caselaw: My main message is that the Condominium Authority Tribunal (CAT) has continued to grow into its role as a reliable and efficient decision-maker in Ontario condominium law. I’m increasingly impressed by the effectiveness of the CAT in handling its expanded jurisdiction, most notably the CAT’s important jurisdiction over pretty much all nuisances in Ontario condominium communities.

In 2023, we’ve seen the CAT make many helpful decisions under a number of categories, including the following:

• Alleged nuisances from noise.
• Alleged nuisances from smoke.
• Other types of nuisances.
• Pets (and related human rights issues).
• Issues related to vehicles.
• Records requests.

However, two cases stand out for me, because they have some important things to say about complaints and about how complaints are to be handled by condominium corporations.

In the cases of Mermut v. York Region Standard Condominium Corporation No. 1381, and TSCC 1978 v. Hackman, the CAT firmly spelled out the duties of condominium Boards to reasonably investigate (not to ignore or discount) complaints from residents. These cases stressed the enforcement, and related investigation, obligations of condominium corporations.

At the same time, the CAT confirmed, in the case of YCC 444 v. Ryan, that complaints must be reasonably expressed. In the Ryan case, the CAT held that the complainant had not met this obligation and ordered the complainant to cease and desist from noise and abusive communications towards representatives of the condominium corporation and towards the alleged violator.

In my view, these cases, taken together, nicely summarize the reciprocal obligations of complainants (to reasonably express their complaints) and condominium Boards (to reasonably investigate complaints that are received).

ONE AREA OF CONCERN

I do have one continuing area of concern in relation to decisions of the CAT. In particular, I’m concerned that some 2023 decisions have shown that the CAT is reluctant to enforce indemnification provisions in a condominium’s governing documents when it comes to responsibilities of landlords for costs caused by their tenants. Instead, the CAT seems to take the view that a landlord is not responsible for “In-CAT” costs caused by a misbehaving tenant as long as the landlord has made reasonable efforts to encourage the tenant’s compliance.

In my view, this is not consistent with the general principle (as also expressed in most indemnification provisions) that landlords are fundamentally responsible for costs caused by their misbehaving tenants, even in cases where the landlord is not personally responsible (in that the landlord has made reasonable efforts). The longstanding principle has previously been that condominium landlords should be 100% responsible for their misbehaving tenants and should protect the other innocent owners from the related costs. I’m hoping that the CAT may be persuaded to return to this longstanding principle in the years ahead.

Subject to this one minor concern, I would say that 2023 was an excellent year for the CAT. 

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By James Davidson, Davidson Houle Allen, LLP