Top Condo Lessons of 2019

Photo by john paul tyrone fernandez on As 2020 approaches I find myself reflecting on the most important news, cases, and events from this past year. There were several notable decisions released this year and a few that I'm sure we would all like to forget! The hardest part of these lists is selecting only ten to speak about. Here is my list of the top ten condo lessons for 2019: Counting Isn't as Easy as 1, 2, 3 The Court confirmed the 10 day notice requirement for liens can be calculated by excluding the date the notice of lien is mailed and including the date of registration. Sending the notice of lien on January 21 and registering the lien on January 31 was acceptable. (Note: this is the minimum; more time is generally better). See CCC 476 v. Wong (2019). Whose Notice is It Anyway?  In another case the court found that a condominium's lien was invalid because notice of the lien was not provided to the owner's spouse who was not an owner or occupant of the unit.  See our previous post about this issue. (Note: the non-owner spouse had registered a notice on title to the unit, which likely played a key role in the outcome of the decision.) Forced Entry to the Units In another case an owner objected to the condominium making entry to his unit because of allegations of rule violations. The court confirmed that a condominium can make entry to the units and exclusive use common element to investigate and confirm non-compliance. The Court of Appeal recently upheld the decision. See Metropolitan Toronto Condominium Corporation No. 1328 v.  2145401 Ontario Inc. (2019).  You can also read our previous post about the case. Leases in Perpetuity The court ruled that a provision in a declaration that required the condominium to lease back parking spots in perpetuity was unenforceable, against public policy, and contrary to the Planning Act. The condominium could terminate the lease. See  2516513 Ontario Inc. v. York Region Condominium Corporation No. 886 (2019). (Note: this case is not without controversy. These arrangements are fairly common and there is an exemption in the Planning Act that was not discussed (some suggest it was overlooked) in the decision. It will be interesting to see how these issues are decided in the future). Reasonable Expectations of Privacy The Court of Appeal (wow, the Court of Appeal was busy with condo cases this year!) recently weighed in on an important issue for condominiums and owners: the limits of the board's authority to grant access to the property to further police investigations. In the decision the Court discussed the reasonable expectations of privacy of the residents in different areas of the common elements and units. The Court held that condominiums can install security cameras in the common elements and allow police to enter upon the property, but they do not have the authority to allow police to install hidden cameras on the common elements without a warrant. See R. v. Yu (2019). Short-Term Rentals The Local Planning Appeal Tribunal upheld the City of Toronto's zoning by-laws that regulate short-term rentals. In Toronto short-term rentals of less than 28 consecutive days are only permitted in a person's principal residence. This decision should be a key one for condominiums with issues related to short-term rentals. See the November 18, 2019 decision. (Note: other municipalities have by-laws that regulate short-term rentals as well and many more are investigating the matter in more detail). CAT Decisions The CAT was busy again this year. It would be impossible to summarize all cases, but here are a few noteworthy decisions:
  • The Tribunal released a decision in which an owner sought access to legal invoices. The condominium claimed it was not obligated to disclose the invoices because they were privileged and subsection 55(4) of the Act exempted them as records related to litigation. The Tribunal found the condominium could not deny the request because it had made various disclosures to the owners relating to the legal advice, but it could redact parts containing legal advice. See Gale v. Halton Condominium Corporation No. 61 (2019) CAT.    (Note: A condominium can unintentionally waive privilege by providing invoices to owners. If the condominium wants to charge the invoices to the owner it should do so by providing redacted copies or speak with the lawyer about other options, such as invoices without a detailed description of services to preserve claims of privilege).
  • The Tribunal confirmed that owners do not have a right to access the email addresses of other owners. Email addresses do not form part of the record of owners and mortgagees, and even if they did, they would be exempt from the right to examine records. See our previous post.
  • The Tribunal refused to give an owner access to emails exchanged between directors. Generally, emails exchanged between directors are not records of the condominium and the condominium is not obligated to maintain them or provide them upon request of an owner. See our previous post.
We have written about several other important CAT decisions which you can find by searching "CAT" in the search box at the top of the page. By-law Controversy No list would be complete without the most controversial case of the year: the "borrowing by-law case". The Court upheld a by-law authorizing borrowing despite the by-law not receiving the support of the owners of a majority of the units per section 56(10) of the Act. See our previous post on the case for our opinion. See also our previous post explaining how to determine which units may vote for certain matters. The Smoking Gun The Courts have enforced rules restricting or prohibiting smoking (tobacco and cannabis). A rule does not need to include grandfathering to be reasonable in all situations. See our post on a case argued by Evan Holt of our office: Wellington Condominium Corporation No. 31 v. Silberberg (2019).   See also a post by our friends at CondoAdviser about a case from Quebec where a condominium had a rule prohibiting smoke in the units and enclosed common elements. More Changes Coming... The Ontario government recently announced that the CAO would be delegated responsibility for 17 commonly used prescribed forms. Starting January 1, 2020 the forms will be available on the CAO website. In the same news release the government hinted that further changes to the Condominium Act, 1998 and/or its regulations are coming. Specific details were not included. The Ontario government also stated in the news release that consultations will begin shortly on expanding the jurisdiction of the CAT for disputes other than record requests. In addition to the previously mentioned changes, various other statutes and regulations have been amended over the last year or are expected to be amended soon. For example, the monetary thresholds for Small Claims Court and Simplified Procedure in Superior Court are increasing in January.  Other changes related to Tarion are expected for 2020. Brace yourself for another busy year ahead.