June 2022

Teno v. Essex C.C. No. 28, 2022 ONCAT 43

Introduction

May 2022 was a busy month in the Condominium Authority Tribunal (“CAT”). As our readers will know, the CAT has exclusive jurisdiction to resolve disputes between owners and condominium corporations with respect to the provisions of the declaration, by-laws and rules relating to pets/animals. In Teno v. Essex Condominium Corporation No. 28, 2022 ONCAT 43, the CAT provides guidance to condominiums and property managers on how a condominium can migrate towards compliance in the face of historical nonenforcement.

Facts

In Teno, the condominium’s declaration contained a blanket prohibition on all animals within the condominium. As our readers may remember from our previous article, https://www.svlaw.ca/condominium-law/insights/details/decisions-from-the-cat-human-rights-pet-prohibitions, prohibitions on animals contained in a declaration are not required to be reasonable, and exceptions are rare.

That said, despite this prohibition, it was not enforced for three (3) decades, specifically with respect to the condominium permitting cats. When the condominium began receiving requests for dogs from owners, the condominium reviewed and determined to bring itself into compliance with the prohibition contained in the declaration.

To move towards compliance, in light of the history of non-enforcement, the condominium enacted rules permitting existing cats to be kept, provided the cats were confined to the units, and until the animals passed away. During this time, no new animals would be permitted and once the “legacy cats” passed away, they were not permitted to be replaced. Given decisions from Ontario’s Superior Court of Justice that past massive non-enforcement may bar the condominium’s efforts to enforce the prohibition against existing cat owners in the present, the passage of transition/ “legacy” rules offered the best avenue to achieve future compliance. An owner challenged the “legacy” rule on the basis that such was contrary to the prohibition in the declaration and therefore invalid.

Under the Condominium Act, 1998 (the “Act”), condominiums may pass reasonable rules, however those rules must be consistent with the declaration. Boards must also take all reasonable steps to ensure compliance with a declaration. In its analysis, the CAT found that while there was past nonenforcement, the condominium acknowledged this, and the passage of the “Legacy” rules represented the condominium’s efforts to move towards compliance, while balancing the rights of existing pet owners. Provided the condominium was moving to compliance with its declaration’s prohibition on animals, such a transitional rule was reasonable and valid.

Bottom Line

Balancing the interests of all owners, including ensuring compliance with a condominium’s governing documents can be a challenging task. Such a task can be made even more difficult where certain provisions of a declaration or rule have gone unenforced in the past or have been applied inconsistently. However, previous nonenforcement may not be a complete bar to future enforcement. Provided a condominium recognizes its obligations to its governing documents, and acknowledges past nonenforcement, future compliance can be achieved by migrating, in a clear, fair, and consistent manner, to enforcing its declaration, by-laws and rules over time.

Written by Christopher Mendes, edited by Robert Mullin. *This article does not constitute legal advice, always consult legal counsel.

Christopher Mendes, B.A. (Hons.), M.A., J.D.
Lawyer, SV Law
www.svlaw.ca

Purchasing a unit inside a condominium means investing in a community. Part of that community investment involves regular communication with the condominium’s Board of Directors. 

A condominium’s Board of Directors is elected by the owners. The Board of Directors is responsible for handling a condominium corporation’s affairs. Because of this, it’s important for you to stay informed about the events surrounding your condo, vote, or become a director yourself. 

However, the above may be difficult if one does not understand the role of the director, so we have outlined that for you! 

Roles and responsibilities.

What are the affairs that your condominium board tackles on a daily basis? Well, that can depend. However, to run in compliance with the Condominium Act, 1998 (the Condo Act), as part of their responsibilities, directors meet regularly to discuss the following: 

• Tracking your condominium’s financial performance;
• Ensuring all required maintenance and repairs are carried out;
• Hiring specialists (like engineers) to update the reserve fund study every three years;
• Making or amending condominium by-laws;
• Enacting rules to promote the safety, security, and welfare of all owners; and
• Providing regular communication with the other owners.

It is only during the scheduled directors’ meetings that any business can be conducted. There must also be a quorum at the meeting. This means that there must be a majority at the directors’ meeting. 

These meetings are typically once a month, but can be more or less frequent depending on the board. For those of us with tight schedules, luckily, director meetings don’t need to be face-to-face. Many boards choose to have teleconferences to ensure most can attend. 

Qualifications of a director.

In order to be elected as a director, you must meet the following qualifications:

• Be at least 18 years of age;
• Not be bankrupt;
• Not have been found incapable of managing property within the meaning of the Substitute Decisions Act or the Mental Health Act;
• Be an individual;
• Not been found to be incapable by any court in Canada or elsewhere, subject to the Condo Act’s regulations; and
• Have complied with the required disclosure obligations.

Take note that a condominium corporation’s by-laws may impose additional qualifications for candidates seeking election. An example of this would be that you must be an owner of a unit in the condominium corporation where you are running for election as an director. 

Electing people to the Board of Directors. 

If a director’s term is expiring, a replacement director will be elected at the next owners’ meeting. This means residents can run for a seat on the condominium corporation’s board. 

Each condominium has its own by-laws and rules, so the process for electing directors will vary. 

If you know ahead of time that you are interested in running for a position on the board, you should notify your board before your AGM. Doing this will mean that your name is included in the AGM package that is sent to all residents before the meeting. However, you can still stand for election the day of the meeting.

This gives you a chance to introduce yourself at the AGM where residents will be voting.

When residents are voting for a new director, there will be a variety of considerations including: 

• The information you have about the candidates (that introduction may come in handy!);
• Speaking with the candidates directly; and,
• Discussing candidates with your neighbours.

Serving on the Board of Directors is no easy feat, and can be time-consuming. It’s important to understand the role of your directors when communicating so that you have a realistic expectation of what can be done. 

And if you’re interested in helping be a part of the positive change in your condominium community; keep in touch with your area’s CCI chapter for information, resources, and support. 

Mandatory disclosure from the CAO: 

Effective November 1, 2017, directors of condominium corporations, as well as candidates for director positions, must make certain disclosures. Once a person is elected to a board, he or she is subject to ongoing disclosure requirements for the duration of the term. Failure to meet these requirements will immediately disqualify someone from being a director.

Maggie Matian
Marketing Manager for CCI Grand River

With July just around the corner, and the end of the school year finally making its way through Ontario, many will be looking to pack their bags and go for a change of scenery. 

Whether it be a town over for a quick weekend getaway, or a plane ride to a whole new time zone, there’s much to consider when leaving your condominium for any length of time. 

It is murphy’s law that whatever can go wrong, will go wrong. So, why not do everything you can to make sure it doesn’t? As a unit owner, and as a member of your condominium community, there are a few extra steps to take to ensure that while you’re enjoying some well-earned R&R, your unit stays safe, secure, and in tip-top condition. 

Notify your condominium manager.

The first thing you’ll want to do once you’ve settled your departure details, is to inform your condo manager and administrator that you will be away from your unit. This type of notice will allow your condominium management company to be aware of the people trying to access your unit while you’re away. Will you be arranging to have a cleaning crew come in? Someone to water your plants? What about a pet that will need someone to come take care of them? Help keep your community and unit secure by alerting the appropriate channels. Leave your contact information with your manager in case there comes a situation where you need to be contacted. 

Lock all doors and windows. 

In the event that you won’t be using a cleaning crew, or pet/plant sitter, you’ll want to make sure your unit is locked and secure. Check all your windows and close your blinds. Make sure to check any point of entry is secured and locked. Consider taking photos around your unit to compare against your return. Not only will this help protect your unit from unwanted visitors, but also ensure there won’t be unnecessary damage from rain coming through the windows.

Unplug your appliances.

Go around your unit and unplug all appliances that don’t need to be running (like your refrigerator). This will help protect your unit from sudden power surges or from complications of any storm that may happen during your absence. 

Check all your faucets. 

Make sure all your sinks and washrooms are in good working condition. Check your taps to ensure there are no drips that could turn into anything disastrous. Have you been noticing any odd noises coming from your toilet? Get that checked before you leave. No one wants to come home to a flooded toilet, and a downstairs neighbour with a wet ceiling. 

Communicate your parking needs.

Will you be leaving your car behind? Double-check that your car is locked and secured. Will you be taking your car with you? Communicate with management that your spot will be empty during your vacation, so that they can be on the lookout for any opportunist that may take advantage of your parking space during your absence. 

For any planned, or unplanned absences, your condominium manager will be your best friend. Communicating with them ahead of time will help alleviate the stress of leaving your unit. Remember, contacting your condominium manager goes both ways. If while you’re away you feel that you may have left the oven on, or your straightener plugged in, contact your manager and give permission to make sure your home is still in the condition you left it in, and will be in the same condition when you come back home. 

After all, you deserve this vacation. Your condominium community can help ensure that your vacation ends on a high. 

And not a repair invoice. 

Maggie Matian
Marketing Manager for CCI Grand River

“What do you do for a living?” – the hardest question ever asked to a condominium manager.

When I first started to write this, I thought about what it is to be a condominium manager, and how hard the job is to explain to people at dinner parties. Remember dinner parties?

Most little boys and girls don’t answer “property manager” when asked what they hope to be when they grow up; it seems to be a profession that just finds us, often as a second or third career.  Condominiums are unique communities (sometimes a bit too unique) that require managers to wear many hats, and none are a one-size-fits-all. A good manager is a chameleon, if that chameleon also happens to be extremely patient, an efficient communicator and great at multi-tasking.

What is the hardest part of all that?

On the surface, the dabbling into law, building maintenance, employees, finance, HR, all the while being on-call for your buildings is a little snapshot. Getting a 2 a.m. call that there is a major flood, a fire, or visitors parking is full (everyone defines emergency differently) is never a fun experience so we are grateful when the stars align, and the phone is quiet. Having to be on the receiving end of extremely difficult phone-calls and meetings is likely one of the hardest parts of the business. No one likes to be berated for doing their job, and luckily most people are polite, but expectations are sometimes out of whack, even from the condominium Board. There are the residents that blame us for increasing condo fees (even though buildings do in fact need funds to function) and enforcing rules (we would like to spend our time doing things other than reminding residents that Christmas in June is not a thing, so those lights should come down).

So, you sit at a desk all day?

Every day something unexpected pops up, and we often are heard saying “that is a new one”. You have never “heard everything” in property management; situations will make you scratch your head, ponder if drinking on the job is acceptable and praying you do not accidently hit “send” on that draft email. On the positive side, every day brings a new learning experience, and nothing is ever dull. You must be familiar with your site(s) and even that role varies; some property managers have an office in their one building whereas others look after more smaller properties. To answer your imaginary question, we do not sit at our desk all day, even though that would be easy to do as we get more mail than Santa Claus.

You mentioned a Board…

The Board of Directors, whom we take direction from and report to, are a bag of mixed candies; some are sweet, some are sour, and some explode upon contact (pop-rocks style). They come from all walks of life, educations, and backgrounds, from students to former CEOs of multi-million-dollar companies. Sometimes it is just a husband and wife, and if they cannot find a babysitter, their child may come along as an observer. These Directors can change at any time, and so you must quickly adjust to the new random mix of personalities that get thrown at you at the drop of a hat. Some Boards are very casual and would make a sailor blush with their language. Other are very formal, and you feel the need to change into your good shirt or tie during the Zoom call and review Roberts Rules of Order before the meeting. Loyalty and trust-building can be difficult since a newly elected Board may wish to clean house and get a new management company, despite years of a strong working relationship. I personally like the adage “managers manage, directors direct” and when there is a stream-lined process in place, a condo should run like a well-oiled machine (that is, until there are not enough funds in the reserve account to operate said machine).

So, you are like a real estate agent that does superintendent work?

Are you even listening? Where was I…the Board are the folks that hire us property managers, and as I mentioned, these people range in not just their working backgrounds, but in the type of Director they are. Some must have been military sergeants in their past lives while others are silent ghosts who disappear if you look at them too closely. Luckily for the most part, directors are there to ensure that their investment, as well as all the other owners, is being well looked after. Clear communication goes a long way in working hand and hand with the Board, and it is extremely satisfying when that major project gets completed, or you come to the end of dealing with a difficult situation together.

I still don’t get it.

That is okay. A lot of condo home-owners do not really understand either. We are often seen as the “bad guys” who tell them their adorable family dog is not permitted, that their cigar habit is a nuisance to neighbours, or their four vehicles have nowhere to go. You can just imagine how well it goes being the provider of such good news and deflating the excited energy of someone who just purchased a new property. The CAO and ACMO provide so much helpful information on their websites, and we can only hope that those in the market for condos (which grows daily) educate themselves before purchase.

So you enjoy it?

Despite kindergarteners not putting “condominium manager” up there on their career wish list along with astronauts, hockey players and rock-stars, it is an extremely important job that deserves more attention. There have been many articles written about the manager shortage crisis in Ontario, and hopefully more people are attracted to the profession that never gets boring. There are always interesting people to meet and connect with, and new and exciting things to learn. It also feels great to get so much accomplished for people’s homes, so go thank your property manager today! 

Sara Hicks, B.A.,(H.), OLCM, RCM, LCCI
Vice President, Owner, MF Property Management
www.mfproperty.ca