Canada: The Amended Ontario Condominium Act - New Provisions to Look Out For

Last Updated: December 1 2017
Article by Shawn Pulver

We're now almost a month into the "new world" of condominium law in Ontario.  In part 3 of my series on the Amended Condominium Act, I focus on some of more notable changes that we should all be aware of moving forward.

Meetings & Procedures – Section 45.1

The new Act has set up an additional notice requirement when it comes to calling a meeting of the owners.  In addition to the pre-established notice requirements, a "preliminary notice" will now need to be sent to owners before any meetings where an election to fill a spot on the board will be held, in order to canvas who intends to present themselves as a candidate for election.

This preliminary notice must be given at least 20 days before the subsequent Notice of Meeting is sent to the owners.

Meeting Requisitions – Section 46

The new Act imposes additional restrictions on those who can requisition a meeting of owners.

Previously, a requisition could only be made by those who owned at least 15% of the units. Now, in addition to the previous requirements, an owner seeking to requisition a meeting must also have no contributions to the common expenses payable for their units that have been in arrears for more than 30 days.

Of note, if the meeting is for a removal or election of a director in a reserved position, the owner making the requisition must own at least 15% of the non-leased voting units in the corporation.

The Board will also have some new requirements when it comes to meeting requisitions. Upon receiving a requisition, it will need to respond to the requisitionist in writing, within 10 days, to let them know whether or not the Board will call and hold the requisitioned meeting. If the Board fails to respond within 10 days, a default response is set up where the Board is deemed to have agreed to call and hold the meeting.

If the requisition is agreed to, the meeting must be held within 50 days after the requisition was received by the Board or at least 40 days after the consent for the meeting is given.

Notice to Owners – Section 47

Apart from the previously discussed preliminary notice, the notice requirements remain essentially unchanged.

That being said, one significant change was added to the new Act. The corporation must now also send any notice or preliminary notice to the mortgagees whose names appeared in the record of the corporation, 20 days before the day of the meeting.

Records – Section 55

There are a few new record keeping requirements that are important to take note of. In addition to what was required previously, condo corporations are now also required to keep records of:

  • Returns and notices it has filed with the Registrar; and
  • Instruments appointing a proxy or ballots for a meeting of owners that are submitted at the meeting.

Another notable change is that any owner, purchaser, mortgagee of a unit, or an agent of one of them, may now also request copies of the records, as oppose to simply being able to examine them.

The right to examine or request copies of records, continues not to apply to the following records:

  • records relating to employees of the corporation, except for contracts of employment between any of the employees and the corporation
  • records relating to actual or contemplated litigation or insurance investigations involving the corporation
  • records relating to specific units or owners

Changes to Common Elements & Assets by the Corporation – Section 97

The new Act introduces a new term – "modifications". This term will be used throughout the Act to mean any addition, alteration, improvement, or change to a common element, asset of the corporation or service the corporation provides to the owners.

Modifications made without notice

Just like the previous version of the Act, modifications can be made with or without notice, depending on the circumstance. It remains that no notice is required if the modification is deemed necessary to comply with an agreement or is imposed by any act or regulation, or if it is to ensure the safety or security of persons using the property or to prevent imminent damage to the property or its assets.

What has changed is the maximum cost of the modification for it to be permitted to go ahead without notice. Previously, the improvement or change could not amount to more than $1,000 and 1% of the annual budgeted common expenses for the current fiscal year. Under the new Act, the cost is increased to the lesser of 3% of the annual budgeted common expenses for the current fiscal year and $30,0000.

The new Act also includes an additional requirement, stating that the modification must, on an objective basis, not reduce or eliminate the owners use or enjoyment of the units that they own or the common elements or assets.

Modifications made with notice

The notice requirements for modifications are mostly unchanged, however, should the owners requisition a meeting within 30 days of receiving the modification notice, the corporation may move forward with the modification if either the owners do not vote against the proposed modification at the meeting or if a quorum is not present at the first attempt to hold the meeting.

Order for Permanent Removal – Section 135.1

The new Act introduces a completely new provision to regulate court orders for the permanent removal of a person from their unit. Under section 135.1, the court has the authority to have someone removed from their unit if:

  1. the person is in contravention of section 117 of the Act by carrying on an activity in their unit or in the common elements that is likely to damage the property or cause injury to an individual
  2. the person is found in non-compliance with the Act or the Corporation's Rules, Declaration or By-laws and no other compliance order under s. 134 will ensure compliance
  3. the person's oppressive or unfairly prejudicial conduct makes them unsuited for the communal occupation of the property and no other order under s. 135 will be adequate to prohibit their conduct

If the corporation obtains an award for damages in relation to this section or with respect to a compliance order, the damages, compensation or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the unit's contribution to common expenses.

Under this new section, the right to recover costs is now extending to owners as well. This means that if an owner of a unit obtains an award of damages, compensation or costs against a corporation in a compliance or oppression order, the owner is entitled to recover from the corporation the amount of the award, together with any additional actual costs to the owner in obtaining the order. Furthermore, if the corporation doesn't pay the amount within the prescribed time, the owner is entitled to set off the amount against his unit's contribution to the common expenses.

About Mackrell International - Canada - MacDonald Sager Manis LLP is a full service business law firm in Toronto, Ontario and a member of Mackrell International. Mackrell International - Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.

This article is intended to be an overview and is for informational purposes only.

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