One of the most significant proposed amendments set out in Bill 106, (Protecting Condominium Owners Act,2015) is the introduction of an entity called the Condominium Authority. The Authority is a reincarnation of Condominium Ontario, which was introduced by the Conservative government of Ontario in 1978. The goals and purposes are identical.
Many condominium owners may not know this but in 1978, the provincial government introduced legislation providing for the creation of an independent office to which owners and condominium corporations could turn for advice and dispute resolution. It was to be called Condominium Ontario. The government, however, while prepared to provide seed money, was not prepared to finance its operation. Condominium owners were expected to fund its ongoing operation but given that Landlords and Tenants received the benefit of an administrative agency paid for from the public purse, the condominium community refused to fund the office. As a result, Condominium Ontario, initially funded as a start up by the government, was shut down.
The plan is that the Condominium Authority will be created as a self-funding, self-regulating body, whose duties and obligations will be established by legislation, regulations and by-laws enacted by the authority itself. The Condominium Authority will be responsible for the administration of the Condominium Act. Today, the size of the condominium community in Ontario has, effectively, exploded and the cost of funding a body of this type will be much less per unit than it would have been in 1978. The difference, however, is that the number of issues to be dealt with has increased. We shall have to wait and see how the funding program is accepted and if and how condominium corporations and owners will benefit.
Many of the questions that we have regarding the Condominium Authority and its powers and duties have yet to be addressed. That information will only be available when the regulations and by-laws of the authority are in place.
Here's what we do know. The Condominium Authority will be governed by a board of directors. The criteria for board membership will be set by the government. A minority of the board members will be appointed by the government and oversight of the body will be maintained by the government.
The intention is for the Condominium Authority to:
- respond to inquiries from the public;
- establish one or more advisory councils with expertise in the industry to assist the Authority;
- suggest amendments to the Condominium Act;
- establish forms for the body;
- establish and collect the assessments payable to the body from the condominium corporations; and
- establish a Condominium Authority Tribunal.
One of the main functions of the Condominium Authority will be to appoint a Registrar who will be responsible for implementing and administering the filing of returns for every condominium corporation in Ontario. There will be an initial and turn-over returns for new condominiums and annual returns thereafter including updates when changes in directorships occur. Each filing will have to be accompanied by a certificate of a director (or manager, if so authorized) attesting to the veracity of the information. we assume that the payment of the annual fees/assessments by each corporation will accompany the returns. The Registrar will be able to impose late filing fees. In addition, any corporation that has not filed with and paid its assessment to the Registrar will not be entitled to use the Tribunal or commence a proceeding in court, except with the permission of the court. The Registrar will create and maintain a data base of information it receives, in accordance with the regulations; this information will be available to the public.
In my view the two most important services that the condominium public will be looking for from the Condominium Authority are the advice in response to inquiries and the dispute-resolution Tribunal.
As set out in Bill 106, Tribunal members will be appointed by the Condominium Authority for a term of up to four years. There will be a Chair and Vice Chair. Panel members will be appointed to hear disputes brought before them by owners, condominium corporations and if provided for in the regulations, purchasers as they arise. Bill 106 does not indicate what matters can be brought before the Tribunal; rather, that will be prescribed in the regulations, which we expect will take at least a year to prepare. Not every dispute will come before the Tribunal. The exclusions set out in Bill 106 are issues relating to ownership of property, sale of the condominium property, amalgamation, termination, conduct that constitutes dangerous activities and liens.
The Tribunal will have the right to direct disputes between the parties to negotiation, conciliation or mediation. A Tribunal proceeding may be held orally or in writing, in person or by telephone, video conference, electronic mail or through other electronic means in accordance with the rules of the Tribunal.
The Tribunal's powers will be similar to those of the courts and other administrative tribunals. It will have the power to compel or prohibit the conduct of the parties in relation to the matters at issue in the proceeding. In addition its decisions may result in an award of damages, costs of the Tribunal proceeding and cost awards in favour of another party. Damages can be awarded for an act of non-compliance to the greater of $25,000 and the actual damages suffered. Damages and/or costs awarded against owners can be collected as common expenses and damages and/or costs awarded against condominium corporations, if not paid within 30 days, can be offset against common expense payments owing. The Tribunal can also impose a penalty against a corporation of up to $5,000 for failure to make records available to owners.
The right to appeal a decision of the Tribunal is to the Divisional Court but is limited only to questions of law.
The condominium community has high hopes for the Condominium Authority. We share them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.