Picture
Picture
Name and Title
Joel Berkovitz
Partner
Associate
Year of Call

2014 (Ontario)

Memberships
  • Canadian Bar Association
  • Ontario Bar Association
  • Canadian Condominium Institute (Toronto)
Publications
Description

Joel Berkovitz Head ShotA Supreme Court of Canada (SCC) criminal decision offers important guidance to condos that monitor their property with video surveillance, Toronto condominium lawyer Joel Berkovitz tells AdvocateDaily.com.

All nine judges on the top court panel agreed that a former high school teacher should be convicted of voyeurism after using a pen-mounted camera to secretly record the faces and breasts of his female students.

But Berkovitz, a lawyer with Shibley Righton LLP, says it's the court’s lengthy consideration of the circumstances under which a reasonable expectation of privacy will arise that is most valuable to condo boards and their advisers.

“I think it really supports many of the best practices that people have been advocating with respect to video surveillance and how it should be undertaken on condo property,” he says. “If condos are going to use cameras, it’s valuable to have a written policy on the subject. Setting out the rules in writing will protect you if someone comes along alleging a violation of their privacy.”

The case made its way to the Supreme Court after a split decision by the Ontario Court of Appeal (OCA), which ruled by a 2-1 majority in favour of acquitting the teacher.

All three appeal court judges disagreed with a trial judge who had cleared the man on the basis that there was a reasonable doubt over whether the recordings had been made for a sexual purpose — one of two essential elements of the crime of voyeurism.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-04-03
Publication
Description

Joel Berkovitz Head ShotRobert Buckler, Joel Berkovitz and Derek Brovold discuss the implications of cannabis legalization on the property management field.

Please click here to read the full Article.

 

“Reprinted from The Journal of Property Management, Vol. 81, No. 1, with permission from the Institute of Real Estate Management. For more information on IREM and its publications, visit www.irem.org.”

 

 

 

 

Date_Published
2019-01-08
Description

Joel Berkovitz Head ShotSeveral recent cases help spell out the duty of good faith contractual performance that exists in contract law, Toronto business lawyer Joel Berkovitz tells The Lawyer’s Daily.

In this case, for example, the Supreme Court of Canada “recognized that a duty of good faith contractual performance exists as a general organizing principle of the common law of contract,” writes Berkovitz, a lawyer with Shibley Righton LLP.

And two recent Ontario Court of Appeal (OCA) cases “interpreted this duty in the context of lending relationships and the termination of fixed-term service contracts,” he says.

In this case, writes Berkovitz, the OCA “considered whether a lender was obligated to continue providing overdraft lending to a borrower, given a history of such lending.”

The plaintiff was a commercial client of the defendant bank, he explains.

“Its nursery business was seasonal, and so during its busy season it routinely requested to borrow above the maximum amount of its line of credit so that it had the working capital it needed. [The bank] granted these requests for several years. However, in 2007 [the nursery] did not repay in full the additional amount which it borrowed, and in 2008, when [the company] again sought to borrow additional funds … above its credit line, [the bank] refused to provide the funding,” says Berkovitz.

The company sued, claiming the bank “had breached the duty of good faith contractual performance by refusing to advance the additional funds,” he says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-12-24
Description

Joel Berkovitz Head ShotNow that Oct. 17 has come and gone, there may be a whiff of something else in the autumn air, Toronto business lawyer Joel Berkovitz writes in Shibley Righton’s Condo Law Newsletter.

The smell of now-legalized marijuana should be a reminder to condominium boards to reflect on whether they’re ready for the changes, says Berkovitz, a lawyer with Shibley Righton LLP.

“While much will be written about the effects of legalization on the country as a whole, condominium directors and managers will need to consider the effects of legalization on their individual communities,” he writes.

“Many condominiums have chosen to take this as an opportunity to address both tobacco and cannabis smoking in their buildings, with many choosing to pass rules which will eventually make their buildings entirely smoke-free,” Berkovitz says. “Others have taken a less restrictive approach and have only passed rules governing the growing of cannabis, and smoking of cannabis on the common elements.”

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-10-29
Description

Joel Berkovitz Head ShotThe “long and twisting saga” that pits South American villagers against a global oil giant took another turn recently in a Canadian courtroom, Toronto business lawyer Joel Berkovitz tells The Lawyer’s Daily.

“At its core,” explains Berkovitz, a lawyer with Shibley Righton LLP, “this case is about attempts to enforce a US$9.5 billion judgment in Canada which was obtained in Ecuador against the U.S. company … A New York court declined to enforce this judgment in the United States, finding that the Ecuadorian judgment was obtained by fraud.”

In a previous post with AdvocateDaily.com, Berkovitz said the case began in 1993, after roughly 30,000 Ecuadorian villagers alleged that an oil company dumped billions of litres of toxic oil-drilling byproducts into the environment. They alleged the toxins caused increased health problems, including more frequent cancer deaths and a higher rate of miscarriages.

In a 2011 decision, Ecuadorian courts ordered the company to pay the villagers US$9.5 billion. Since the company didn’t have assets in Ecuador, the plaintiffs looked elsewhere to collect on the judgment. They tried in the U.S., but the judge found there had been extensive acts of fraud, bribery, forgery, intimidation and collusion in the Ecuadorian proceedings. 

The plaintiffs then sought to seize the shares of the company’s Canadian subsidiary — a seventh-level subsidiary of the American company — by piercing the Canadian company’s “corporate veil so that its shares and assets would be available to satisfy the judgment against its parent,” writes Berkovitz.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-06-19
Description

Joel Berkovitz Head ShotCondominium corporations should adopt rules that prohibit growing marijuana in their complexes ahead of legalization later this year, says Toronto condominium lawyer Joel Berkovitz.

While the pending federal law will allow people to grow four plants for personal consumption, growing marijuana isn’t compatible with condos because of the amount of energy and water it needs, says Berkovitz, a lawyer with Shibley Righton LLP.

He tells AdvocateDaily.com growing plants will require heat and humidity — both of which are major factors in mould growth.

"And once you get mould in a unit and it starts spreading, it's incredibly hard to contain and very expensive to treat," he says.

"It also takes a significant amount of electricity and, if the cost is shared among all the owners, is it fair that you're paying for the guy down the hall who’s growing marijuana?" he wonders. "I would say probably not."

The province limits where marijuana can be used and who can use it, says Berkovitz.

He says his firm is urging clients to implement rules rather than bylaws to prohibit the growing of cannabis.

Bylaws focus on the governance of condos, he explains, while rules deal with safety, security and preventing unreasonable interference with the enjoyment of the building.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-06-01
Description

Joel Berkovitz Head ShotCondominium corporations should adopt rules that prohibit growing marijuana in their complexes ahead of legalization later this year, says Toronto condominium lawyer Joel Berkovitz.

While the pending federal law will allow people to grow four plants for personal consumption, growing marijuana isn’t compatible with condos because of the amount of energy and water it needs, says Berkovitz, a lawyer with Shibley Righton LLP.

He tells AdvocateDaily.com growing plants will require heat and humidity — both of which are major factors in mould growth.

"And once you get mould in a unit and it starts spreading, it's incredibly hard to contain and very expensive to treat," he says.

"It also takes a significant amount of electricity and, if the cost is shared among all the owners, is it fair that you're paying for the guy down the hall who’s growing marijuana?" he wonders. "I would say probably not."

The province limits where marijuana can be used and who can use it, says Berkovitz.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Date_Published
2018-05-15
Description

Joel Berkovitz Head ShotChanges to the Condominium Act will affect the ability of condo owners to access records from corporations, Toronto real estate lawyer Joel Berkovitz writes in Condominium Manager magazine.

In fact, that may be the area most affected by the legislative changes contained in Bill 106, the Protecting Condominium Owners Act, 2015, says Berkovitz, a lawyer with Shibley Righton LLP.

“Up until now, the process by which owners requested and obtained (or were denied!) access to records has been unregulated,” writes Berkovitz.

He says the legislative changes establish new procedures, terms and forms.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-03-23
Description

Joel Berkovitz Head ShotToronto condominium boards should update their unit owners about the status of short-term rentals in their buildings after the city voted to regulate the practice, Toronto condominium lawyer Joel Berkovitz tells AdvocateDaily.com.

According to a CBC report, the City of Toronto will require those renting out units on a short-term basis, on sites such as Airbnb, to register with the municipality.    

“We encourage our condo clients to communicate to their unit owners how these changes are going to affect them,” says Berkovitz, a lawyer with Shibley Righton LLP. “Even if there’s no impact, condos should let their unit owners know so there's no confusion.”

The new regulations, which define short-term rentals as those lasting less than 28 days, require renters to obtain a licence. Homeowners or long-term renters are limited to offering up their primary residence and may only do so for a maximum of 180 days in a calendar year, according to the new rules, which also require licensees to meet certain identification requirements.

Berkovitz says his office has been fielding calls from concerned condo managers and directors, wondering how the new regulations will interact with their own declarations or rules on short-term rentals.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-01-22
Description

Head Shot of Joel BerkovitzThe expropriation of a condominium's common property has raised the question of who gets the money — those who owned a unit when the land was officially taken or those who live there at the time of payment for the expropriation, says Toronto condominium lawyer Joel Berkovitz.

Berkovitz, a lawyer with Shibley Righton LLP, says he recently advised a Toronto condo corporation, which had a strip of its land that was part of the common elements acquired by Metrolinx, that payment should go to the people who lived in the complex at the time the expropriation legally took effect. 

He tells AdvocateDaily.com there's no explicit guidance in either the Expropriations Act or in the Condominium Act, 1998. In fact, s. 126 of the Condominium Act only states that owners get their share of the payment.

Berkovitz says it usually takes some time between the expropriation order and when a price is finalized. During that interval in this case, about 20 residents sold their units and moved.

This is an excerpt from an interview with AdvocateDaily.com. 

Please click here for the complete story.

Date_Published
2017-10-11
Description

Shibley Righton's Joel Berkovitz appeared on CondoVoice's podcast to talk about a recent case concerning the appointment of an administrator.

To listen to the podcase please click here.

Date_Published
2017-08-23
Description

An article in CondoVoice where Shibley Righton's John De Vellis and Joel Berkovitz discuss Harassment of Managers or Staff being a serious problem for Condo Corporations.

To read the complete article please click here.

Date_Published
2017-08-23
Description

A recent decision in small claims court makes it clear that paralegals must leave lien work to lawyers, says Toronto business lawyer Joel Berkovitz.

“This case is significant because it recognizes that paralegals cannot and should not register or discharge condo liens,” says Berkovitz, a lawyer with Shibley Righton LLP.

The case began when the plaintiff missed an assessment notice from her condominium corporation and failed to pay by the deadline, he tells AdvocateDaily.com. The corporation then registered a lien against her property and charged her for the legal fees.

The plaintiff, a paralegal herself, knew that registering and discharging a lien falls outside of a paralegal’s authorized area of practice and that the condo management company couldn't then collect legal fees for the work, explains Berkovitz.

The condo owner paid the entire amount, then launched the small claims action to recoup the legal fees.

This is an excerpt from an article that appeared on AdvocateDaily.com.  To read the full story please click here.

Date_Published
2017-06-08
Description

Canadian subsidiaries can rest easier after the Ontario Superior Court ruled that Chevron Canada can’t be held financially liable for a judgment against its American parent company, says Toronto business lawyer Joel Berkovitz.

“This was a case about whether the assets of a subsidiary can be seized to satisfy a judgment against the parent company and the court here conclusively said, ‘No,’” says Berkovitz, a lawyer with Shibley Righton LLP.

In Yaiguaje v. Chevron Corporation, 2017 ONSC 135 (CanLII), the court ruled that Chevron Canada is a separate entity from the Chevron Corp. and, therefore, not responsible for any judgments against the parent company.

The Chevron case began in 1993, after roughly 30,000 Ecuadorian villagers alleged that Texaco, now owned by Chevron, dumped billions of litres of toxic oil-drilling byproducts into the environment. They alleged the toxins caused increased health problems, including more frequent cancer deaths and a higher rate of miscarriages.

In a 2011 decision, Ecuadorian courts ordered Chevron to pay the villagers US$9.5 billion. But Judge Lewis Kaplan of the United States District Court for the Southern District of New York found, following a seven-week trial, that there were extensive acts of fraud, bribery, forgery, intimidation and collusion in the Ecuadorian proceedings. Chevron has refused to pay the Ecuadorian judgment.

This article appeared on AdvocateDaily.com.  Please click here to read the complete story.

Date_Published
2017-03-29
Description

The consumer backlash over LoyaltyOne’s plan to void Air Miles that are five years or older is a lesson for companies considering changes to their reward programs, says Toronto business lawyer Joel Berkovitz.

People are fiercely resistant to giving up any benefits they’ve accrued in loyalty programs and companies should expect customers to respond very negatively to any attempts to claw them back, he tells AdvocateDaily.com.

In December, a private member's bill to prevent expiry of loyalty points passed on third reading in the Ontario legislature with a vote of 77-0, and became law under the Consumer Protection Act, reports the Globe and Mail. Shortly before Bill 47 became law, LoyaltyOne announced it was backing down and would allow members to keep any Air Miles they hadn’t already used, explains Berkovitz, a lawyer with Shibley Righton LLP.

This article appeared on AdvocateDaily.com,  to read the complete story pleae click here.

Date_Published
2017-01-10
Description

In certain matters, clients may benefit from a co-counsel setting where lawyers tackle different aspects of the case — but the success of these arrangements depends on mutual respect and compromise, Toronto lawyers Armand Conant, Bill Northcote and Joel Berkovitz tell Lawyers Weekly.

As an example, Conant, partner and head of the condominium law group at Shibley Righton LLP, points to a complicated condominium matter where it was clear that drawing in a small team of colleagues in a co-counsel setting to tackle different aspects of the job would be beneficial to the client.

“We needed their skill sets,” Conant says of the decision to bring in Northcote, chair of Shibley Righton’s business law practice group, and Berkovitz, an associate with the firm who practises business and condominium law.

This article appeared on AdvocateDaily.com.  Please click here for the full story.

Date_Published
2016-12-12
Description

Co-counsel arrangements are common in many areas of practice, from criminal trials and litigation, where there’s significant court work, to complicated paper-laden negotiations.

But can too many hands on deck sink the ship? Insiders who have worked collaboratively with other lawyers recommend respecting boundaries, working as a team and striving for harmony all while focusing on the needs of the client.

Armand Conant, a partner at Shibley Righton in Toronto, recalls a complicated condominium matter where it was clear that client interest would benefit from drawing in a small team of colleagues in a co-counsel setting to tackle different aspects of the job

This article appeared on LawyersWeekly.ca.  Please click here for the full story.

Date_Published
2016-11-25
Description

A recent Ontario Court of Appeal decision that extends the “business judgment” rule to condominiums will give condo corporations broader protection when facing legal challenges by owners, says Toronto business and condominium lawyer Joel Berkovitz.

In the past, courts have issued rulings that demonstrate deference to condo boards’ decisions, but this was one of the first that expressly applies the business judgment rule, he tells AdvocateDaily.com.

“It gives cover to the condo corporation that as long as their decisions are reasonable, the courts won’t step in to overrule their decisions,” Berkovitz says.

This article appeared on AdvocateDaily.com.  To read the full story please click here.

Date_Published
2016-10-18
Description

The Panama Papers scandal should prompt law firms, and other professional services firms, to update their electronic security measures, says Toronto business lawyer Joel Berkovitz.

Panamanian law firm Mossack Fonseca, which specializes in the creation of offshore companies, claims it was the victim of a hacking in the massive leak of its client files — a reported 11.5 million documents covering a 40-year period — turned over to journalists from news outlets around the world.  

For the full story please click here

Date_Published
2016-04-15
Publication
Description

Given the rapid change in Ontario's condominium industry over the past two decades, the recent creation of two new separate administrative authorities (AAs) to oversee the sector is a welcome development, Toronto lawyers Armand Conant and Joel Berkovitz write in Lawyers Weekly.

The AAs are being introduced as part of Bill 106, which consists of two separate acts: the Protecting Condominium Owners Act, 2015 (PCOA) and the Condominium Management Services Act, 2015 (CMSA).

The first AA will handle functions under the amended Condominium Act, 1998, explain Conant, partner and head of Shibley Righton LLP’s condominium law department, and Berkovitz, associate in the law firm’s condominium law department. These include providing director education, administering a registry of, and data about, condominium corporations and overseeing a specialized tribunal to adjudicate certain disputes, especially those between condo owners/residents and their corporations.

The other AA will handle licensing and discipline of condo property managers under the CMSA, and will be known as the Condominium Managers Licensing Authority (CMLA).

As Conant and Berkovitz explain, “The use of AAs in the condo industry is a brave new world, and one we believe has significant merit.”

AAs differ from other regulatory entities in that they are not government bodies, nor an arm of government.

“They are distinct legal entities (not-for-profit corporations) which are at arm’s length from the government. The AA assumes complete control over its financial, operational and legal responsibilities under its operating statute. This includes day-to-day services such as inspections, setting and collecting fees, licensing and enforcement,” write Conant and Berkovitz.

The AA is governed by an independent board typically drawn from key members of the industry over which the AA has jurisdiction. AAs are overseen in a hands-off manner by their respective ministries.

“The ministry can also develop policy recommendations and suggest changes to the AA’s governing statute. Though the ministry liaises with the AA regularly on issues of its operation and management and may appoint up to 49 per cent of the board members, the real decision making authority for the AA lies exclusively with its board of directors,” Conant and Berkovitz explain in the article.

From the government perspective, a key benefit to using AAs is that they are self- financed by fees collected from the businesses or professions which they regulate.

“It is expected that the Condo Authority will be primarily financed from a monthly fee per condo unit (hoped to be in the range of $1) collected by the corporation as part of its annual operating expenses. There will also be a user fee for those who wish to pursue disputes before the tribunal and access the condo registry data. The CMLA will be financed by licensing fees,” they write.

In Ontario, there has been recent growth in the use of the AA model, which Conant and Berkovitz say “reflects a broader government trend toward their use as specialized regulatory bodies for specific industries.” Given their financial benefits and governance flexibility, the government has also signaled greater use of AAs in the future.

“The two AAs being created in response to the passage of Bill 106 reflect a newer approach to governing that is intended to be both cheaper and more efficient,” write Conant and Berkovitz.

This story also appeared on advocatedaily.com and in Lawyers Weekly.

Date_Published
2016-03-01
Experience
More About
BIO

Joel Berkovitz is an associate in Shibley Righton’s Condominium Law and Business Law groups. He articled with the firm and was called to the Bar in 2014.

Joel’s condominium law practice includes all aspects of condominium law, with a focus on drafting and negotiating contracts for condominium corporations, advising Boards, corporate governance, and compliance matters. In addition to advising condo clients, Joel sits on the board of directors of his condo corporation. Joel is also a member of the Canadian Condominium Institute (CCI) and the Association of Condo Managers of Ontario (ACMO), and is a member of the CCI (Toronto) Education Committee which develops educational materials for condo courses.

In Joel’s business law practice he acts for a variety of for-profit and not-for-profit organizations in a broad range of economic sectors including manufacturing, retail and wholesale sales, banking and lending, entertainment, mining and resource exploitation, printing, market research, and architecture. Joel's practice includes contracting, mergers and acquisitions, corporate restructuring, lending and securitization, and intellectual property law. Joel attended Multilaw’s Academy in Dublin Ireland in 2017 which focused on international business transactions, and is a member of Multilaw’s Corporate Commercial Group on the Mergers and Acquisitions Team.

Prior to joining the firm, Joel obtained his J.D. from the University of Windsor in 2013. During law school, Joel was involved in the Mediation Clinic, and received the Harold G. Fox Bursary (awarded to the top two students in his first year law class). Before law school, Joel worked for the Ontario Lottery and Gaming Corporation developing social responsibility policy, and conducted problem gambling research for a non-profit group. Joel graduated from McGill University in 2007 with a Bachelor of Arts in Political Science and History. 

Outside of work, Joel enjoys travelling, skiing, playing baseball and golf.

Contact Information

T: 416.214.5264
F: 416.214.5464
E: joel.berkovitz@shibleyrighton.com

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Education

University of Windsor, J.D., 2013
McGill University, B.A., 2007

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