Picture
Picture
Name and Title
Audrey Loeb
Partner
Partner
Year of Call

1974 (Ontario)

Memberships
  • Member, Canadian Condominium Institute
  • Member, Ontario Bar Association and Co-Chair of the Condominium Committee of the Real Property Subsection (Ontario)
  • Former member of the Board of Directors, Princess Margaret Hospital Foundation and its Audit & Accountability, Governance, and Leadership Committees as well as the founder and Chair of the “Weekend to End Breast Cancer” benefiting the Princess Margaret Hospital Foundation
  • Former member of the Board of Directors, Bridgepoint Hospital
  • Member of the Real Property Committee, Ministry of Government & Business Services
Publications
Description

Audrey Loeb Head ShotOntario had shut down many sectors of its economy in the face of the coronavirus pandemic, but the residential renovation industry has continued - despite concerns about the access to work crews in multifamily buildings. 

This is a excerpt from Audrey Loeb's article that appeared in the Globe and Mail (Ontario Edition) on April 17th, 2020.

Please click here for the full article

Date_Published
2020-04-17
Description

Audrey Loeb Head Shot

Tarion Warranty Corp.’s recent efforts to provide more consumer information on the risks of pre-construction condominium purchases don’t go far enough, and the new home regulator should take an aggressive role in requiring more standard-form agreements, Toronto condominium lawyer Audrey Loeb tells The Globe and Mail.

As of Jan. 1, 2020, Tarion will require “any vendor selling pre-sale condominiums to include a two-page information sheet about the project that will assist buyers in appreciating the potential pitfalls in signing a contract to buy an unbuilt home from plans,” the Globe reports.

“The form will compel sellers to spell out early-termination conditions, any potential title restrictions on the proposed land, as well as expected completion dates and a disclosure about whether a building has obtained zoning approval,” the article continues.

Loeb, a partner with the Toronto office of Shibley Righton LLP, tells AdvocateDaily.com none of this will mean anything to the average condominium purchaser.

“Tarion created a late closing form to be attached to all agreements of purchase and sale for condominiums — it is 10 pages long. How does that help the consumer?” she says.

“It’s just more stuff for people to read,” Loeb tells the Globe. “The problems of cancellation are important to people, but it’s truly the tip of the iceberg of the issues that affect the buying public when it comes to condos.”

She tells the Globe that many agreements of purchase and sale together with the disclosure packages for condos are already 100-plus pages and are filled with “thickets of legalese that can lock buyers into such things as unspecified extra fees, options to extend the completion date” for years into the future, and contracts, which bind the future condominium corporation to unfair terms, many favouring the developer or associated companies.

The newspaper reports that so far this year, seven projects have been cancelled, representing more than 2,100 units.

“Cancellations are inevitable. … People should just understand the risks and be prepared to deal with that,” Tarion CEO Howard Bogach told the Globe.

“I am disturbed by the rights developers are allowed to retain and which can impact what a purchaser gets,” Loeb says. “I’ve been saying that Tarion has to take a more aggressive role in requiring more standard-form agreements” and the Government of Ontario needs to see the consumers’ side of things.

A report recently tabled by Ontario’s Auditor General Bonnie Lysyk says Tarion has failed thousands of new homebuyers by placing the interests of builders ahead of theirs, the CBC reports.

Lysyk found the agency, which also regulates the industry and is controlled by a board made up largely of developers, has until recently operated with very little oversight and was allowed to write its own rules.

“Lysyk found most of the public complaints about Tarion’s dispute resolution process were justified, and that the Ontario Home Builders Association ‘had disproportionate influence over Tarion’s decisions and operations,’” the article states.

 

Date_Published
2019-11-11
Description

Audrey Loeb Head Shot

Having a code of ethics in place for a condominium’s board of directors assists in holding members accountable if they become disruptive, problematic or violent, says Toronto condominium lawyer Audrey Loeb.

“One of the things that we recommend to our clients is to approve a code of ethics that governs the board members and that board members should be required to sign,” says Loeb, a partner with the Toronto office of Shibley Righton LLP.

“Many of our corporations have it in their bylaws as a qualification for board membership. If there is a problematic board member, and the proper procedures are followed, then the board can decide whether to remove the member.”

Without a bylaw in place, a board member can only be removed by a vote of 51 per cent of all the unit owners, she tells AdvocateDaily.com.

“With a bylaw that disqualifies the person from board membership if he or she fails to comply with a code of ethics — and the board follows the right procedures and gives the offending board member an opportunity to speak to the accusations — then you can remove them without a vote by unit owners,” Loeb says.

If a condominium corporation becomes aware of an incident, she says it has an obligation to deal with it.

“But a condominium corporation is not in a position to prevent something from happening, it’s only in a position to try to ensure that it doesn’t happen twice,” Loeb says, pointing to an Ontario Superior Court of Justice decision involving an assault by a board member.

In that matter, the plaintiff brought a claim against a condo corporation for failing to protect her from an assault by the defendant at a board meeting.

According to court documents, the assault that took place at a 2011 meeting of a condo board, where the plaintiff and defendant began to argue, and he struck her on the head with a chair.

At issue was whether the condo corporation had a duty to prevent an assault by a meeting participant.

“It would be unduly onerous to find that a condominium corporation has a duty to provide security at every Board meeting to prevent a potential assault. Even given the contentious environment at the Board in this case, it would not be reasonable to require the condominium corporation to provide security,” wrote Justice Sandra Nishikawa. “It is reasonable to expect individuals who participate on the boards of condominium corporations to adhere to a standard of conduct that includes, at a minimum, refraining from assaulting another participant.”

Loeb, who was not involved in the matter and comments generally, says the corporation’s role is not an anticipatory one.

“If you’re having meetings and there’s a board member who is threatening others, then you have an obligation to remove that board member,” she says. “But I don’t think you can protect a board member if, out of the blue, someone decides to throw a punch.”

A code of ethics and bylaw that cover that type of behaviour can be used to remove that member, Loeb says.

“For example, we would send a warning letter to the problematic board member. If the behaviour happens again, it’s grounds for removal. Then we would hold a hearing to determine whether the conduct is such that the individual board member should be removed from the board. The person in question will have an opportunity to speak to the accusations as will the other members. Then the board will make a decision as to whether they can be removed,” she says.

Loeb says another option is to give the disruptive board member a warning and state that they cannot attend meetings if they don’t “behave.” If there are continued disruptions, the other board members can remove themselves from the meeting and finish the session elsewhere.

“But it doesn’t foster a good environment,” Loeb says. “I would rather the person know that failure to meet certain criteria can result in the board members deciding that the offending individual should no longer be a member.”

 

Date_Published
2019-10-15
Description

Audrey Loeb Head Shot

A condominium management team that objected to a Jewish condo owner attaching a mezuzah to the doorframe of his residence highlights the importance of seeking legal advice before taking action, says Toronto condominium lawyer Audrey Loeb.

“It’s easy for us to advise on the case law around accommodation of a person’s religious beliefs,” says Loeb, a partner with the Toronto office of Shibley Righton LLP. “Call your lawyer and seek some legal advice before firing off a potentially damaging or embarrassing letter.”

The Canadian Jewish News (CJN) reports the condo owner’s religious object came to the attention of building officials while he was out of town for work. They had entered the unit to change an air conditioner filter and had noticed the mezuzah on his door frame.

“When he returned home, he found a letter in his apartment telling him that ‘it has been brought to management’s attention that you have an item of some sorts attached to the exterior side of the door,’” CJN reports.

The letter cited condo rules saying that owners are not allowed to display, hang or affix anything to the doors of their units. In subsequent conversations with management, the resident was told he could either take down the mezuzah or place it on the inside of his door.

The resident believed his religious rights were being infringed and contacted the Centre for Israel and Jewish Affairs and B’nai Brith Canada for advice. He also posted his story on a Facebook group called Everything Jewish Toronto, the newspaper reports.

The management team later backtracked, and a condo representative was quite “apologetic,” the man told CJN. He was told the earlier condo rep was “mistaken, and I had the full right to keep the mezuzah in place.”

The condo owner accepted the apology, requested it in writing and asked that the same consideration be given to a second Jewish resident in the building, CJN reports.

While this situation appears to have been a misunderstanding and was resolved fairly quickly, that is not always the case, Loeb tells AdvocateDaily.com.

“Why put yourself in a situation where you take a position like that?” she asks. “Some condominium corporations have a tendency to think that they can function without legal advice, and they make decisions that get them into so much trouble.

“In this case, it would have been a two-minute phone call to determine the answer, which is that in 2004 the Supreme Court of Canada ruled that personal religious beliefs override the terms of a condominium declaration.

“It’s this ‘penny-wise-pound-foolish’ mentality. A prophylactic phone call to a lawyer would save would embarrassment and money,” Loeb says.

She says a condo owner faced with a similar letter from management could challenge the corporation and take it to the Human Rights Tribunal of Ontario

“At that point, a condo corporation would involve a lawyer anyway,” Loeb says. “In the meantime, you could have saved yourself all that time, expense and embarrassment.”

While she can sympathize with condominium corporations wanting to keep the doors clean, she notes most mezuzahs are small and unobtrusive.

“Prohibiting a mezuzah is different than banning a door knocker or wreath outside of the holiday period,” Loeb adds.

 

Date_Published
2019-08-16
Description

Audrey Loeb Head Shot

Condominium boards have options to regulate pets, but requiring animal owners to pay an extra fee is not one of them, says Toronto condominium lawyer Audrey Loeb.

Administering an additional charge that only applies to pet owners is not admissible under the Condominium Act,” says Loeb, partner with the Toronto office of Shibley Righton LLP. “The courts have held you can’t selectively charge unit owners,” she says, noting the courts ruled against a condominium corporation that tried to levy an extra charge for people who rented out their units.

According to a CBC News article, a Toronto condominium board announced it was going to charge pet owners $15 monthly to pay for “additional spot cleaning, carpet cleaning and general maintenance” to cover the cost of dog owners not cleaning up after their pets.

“In all my years I haven’t seen a rule of this nature,” Loeb states in the article, explaining that selectively choosing a group of people in a condo to levy a charge against is “not enforceable.”

Communal living can be difficult, Loeb tells the CBC, but fining everyone for the mistakes of a few is “not permitted.”

Condominium corporations whose declarations clearly state that pets are prohibited don’t have this issue, but others can still impose restrictions in their rules, she tells AdvocateDaily.com.

Loeb gives the example of regulations that state pets cannot exceed a specific size, or that each unit owner is limited to just one cat and one dog.

“Through the condo rules, there is the ability to monitor and control pets, but a pure prohibition is typically not acceptable anywhere but in the declaration,” she says.

Loeb acknowledges that condo boards struggle to deal with delinquent dog owners who do not pick up after their pets, with some suggesting that pet owners should submit DNA samples from animals living in their units so that the poop of an offending owner’s animal can be identified.

The right of a condo board to require dog owners to submit their pet’s DNA samples has not been tested in court, Loeb says, so the enforceability of that sort of policy remains unknown.

“It can be challenging to identify pet owners who don’t pick up after their animals, so I can certainly understand the desire of doing the DNA tests,” Loeb says, adding she can envision condominiums having a rule that unit owners are only entitled to keep a pet after agreeing to have a DNA test.

“That raises the question of who pays for the DNA test since condo boards will try to pass that cost onto the unit owner, though I am not aware of any condominium corporations doing that now," she says.

Condo corporations have other alternatives, Loeb says, such as security cameras in common areas to capture footage of delinquent owners who do not pick up after their dogs.

If a condominium’s declaration doesn’t already state that pets are not allowed, she says the board will need the written agreement of 80 per cent of unit owners to modify that declaration.

“I think any board would be hard pressed to get that, so the most they should expect is to control pets through the rules, by limiting their size and number,” Loeb says.

 

Date_Published
2019-07-12
Description

Audrey Loeb Head Shot

Toronto condominium lawyer Audrey Loeb says she is encouraged by the initial progress made by the Condominium Authority Tribunal (CAT) but that it has the potential to do much more.

“We've taken the first step. Now we need reports and statistics to understand how it's performing. Hopefully, its scope will gradually increase,” says Loeb, partner with the Toronto office of Shibley Righton LLP. “Right now, it has a single-purpose jurisdiction, so it only deals with disputes pertaining to a condominium corporation's records.

“It's supposed to become the resolution tribunal for all things condo — that's the goal,” she adds.

The CAT was introduced in November 2017 to help settle condominium-related disputes in Ontario.

Loeb tells AdvocateDaily.com there are “core records, such as the list of owners and their address, corporation bylaws and minutes of meetings” that owners are entitled to view but which might not be readily available to them.

“It gets more complicated when someone wants to see invoices, contracts or reports — some of which may have been prepared in contemplation of litigation,” she says.

Through the CAT, a condo owner can file a request for a record and condominium corporations can be fined for rejecting the request without good reason, Loeb says.

She says a troublesome aspect of the legislation is that the tribunal can impose a penalty on the corporation, but there is no sanction against a condo owner who makes vexatious applications.

Beyond expanding its role, Loeb says she would like to see the CAT rely on precedent when dealing with its files.

“Theoretically the decisions aren't binding, and there's no precedent when matters are resolved by alternative dispute resolution,” she says. “When you have a case decided by a judge, there is a precedent. The next time the matter comes up, you can tell your client the issue has already been decided by the court, and you can explain the likely outcome.”

As it stands, “anybody, regardless of the validity of their claim, can go before the tribunal” and the same issues could repeatedly arise leading to potential overloading and backlogs in the system, Loeb says.

“If you don’t have the benefit of precedent there could be an impact on volume,” she says. “I think it would be beneficial for everybody if the decisions were binding.”

Expanding the CAT's mandate to additional areas of dispute resolution may take some time, Loeb says.

Taking it slowly has benefits since it allows those dealing with CAT disputes to build up expertise and demonstrate value down the road.

“I'm not certain what the delay is, but I'll give them the benefit of the doubt that it's growing pains,” she says. "It’s going to move forward, but there are some issues that need to be addressed."

 

Date_Published
2019-06-28
Description

Audrey Loeb Head ShotWhen dealing with residents who have dementia, mental health or addiction issues that are posing a risk to themselves, the building or neighbouring units, condominium corporations should seek legal advice before taking action, Toronto condominium lawyer Audrey Loeb tells AdvocateDaily.com.

“It’s crucial to find out what you can and cannot do in certain circumstances. We also have resources we can forward to help management deal with these issues in a non-legal way,” says Loeb, partner with the Toronto office of Shibley Righton LLP.

“Managers aren’t hired to act as sociologists or psychologists — they are trained to manage the operations of the building. But when you're dealing with people, there are a number of interesting issues that pop up.”

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

Please click here to read the rest of the story.

Date_Published
2019-04-15
Description

Audrey Loeb Head Shot

A developer, who was found by the Ontario Superior Court to be behaving “unreasonably” in rejecting mortgage commitments for purchasers and then relying on that refusal to terminate their contracts and forfeiting their deposits, had no right to terminate the agreements, Toronto condominium lawyer Audrey Loeb tells The Globe and Mail.

The developer was trying to arrange for all the purchasers with whom it had agreements of purchase and sale to take their deposits back and walk away from their condominium purchases. The plaintiffs refused to accept the return of their deposit, maintaining that the developer had no right to cancel the project, the article states.

The Globe reports that the developer had acted in bad faith when it refused to accept the mortgage commitment papers delivered by the purchaser. This decision adds to the new precedents from the Ontario courts that could help tilt the balance of power toward new-home buyers and away from developers.

Justice Katherine Swinton found the buyers were not in default of an agreement to purchase a condo for $444,900 and that the developer failed to act in good faith when it claimed it could keep their $55,624 deposit, the Globe reports.

“Their money, plus interest, has been ordered to be returned, and the parties were ordered to discuss whether a settlement on further damages could be reached,” the article states.

The dispute started in January 2018, when the developer demanded proof of a “binding and unconditional mortgage commitment” in order to satisfy itself the couple could afford the two-bedroom townhouse they agreed to buy in 2016, the article states.

The couple reportedly provided mortgage commitments, income statements and other financial information at least six times, all of which were rejected by the developer, the article continues.

During the trial, the developer claimed that 96 of 116 buyers had failed to qualify for financing and that he no longer intended to build a condo project and was planning a rental project instead, the Globe reports.

“They had no right to terminate the agreements [under Tarion Home Warranty program] for a decision to change the use,” Loeb tells the publication.

In an interview with AdvocateDaily.com, she says, "They relied on their industry experience that purchasers cannot afford a fight and will just walk away as in this instance all but one did."

It seems like the developer needed to be able to find the purchasers in default of their contractual obligations, rather than cancel the building, says Loeb, partner with Shibley Righton LLP, who has long advocated for greater protection for Ontario purchasers. She has urged the province to enshrine an obligation of “good faith” on developers in their contract and disclosure obligations.

“They had no right to cancel except for being unable to secure financing,” she adds.

"The courts are making decisions, which demonstrate that the pendulum is swinging a bit more towards the consumer. The courts are imposing obligations on developers that should really come from the Condominium Act but the government has never been prepared to take that additional step," Loeb says.

Date_Published
2019-03-26
Description

Deborah Howden Head ShotMore than a year into existence, Ontario’s Condominium Act Tribunal (CAT) is working effectively, Toronto employment lawyer Deborah Howden tells Law Times. 

Howden, partner with Shibley Righton LLP's Toronto office, tells the publication that while the tribunal only handles issues of access to records, that is the most common area of dispute between condo corporations and unit owners. 

“What’s distinctive about the CAT is this is a new tribunal in Ontario, and it’s a designated authority, and there’s only a handful of such authorities in the province,” Howden tells Law Times. 

“It’s our first and only online adjudication body.” 

She tells the legal publications that prior to the Ontario Condominium Act being amended, an owner with an issue had to have a reason related to the condo corporation to access to a particular document. 

A reason is no longer necessary for a purchaser, condo owner, or mortgagee of a unit to access that information, provided the record doesn’t relate to an exemption under the Condominium Act, Howden 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
2019-03-11
Description

Audrey Loeb Head ShotThis is an important decision for Ontario consumers and I am delighted that Shane Dingman showed interest in it as well.

Court rules against de­vel­oper on pre­sale can­cel­la­tion
SHANE DING­MAN THE LIST­ING
The Globe and Mail (Ontario Edition)
Mar 08, 2019

 

Date_Published
2019-03-08
Description

Audrey Loeb Head ShotA recent decision by the Court of Appeal continues a trend in condominium law regarding the obligations of Ontario developers when selling to purchasers.

This article appeared on The Lawyers Daily.



Date_Published
2019-03-05
Description

Audrey Loeb Head Shot

The Ontario government should consider streamlining the Condominium Act, Toronto condominium lawyer Audrey Loeb tells Law Times.

The legal publication reports that expected amendments to the Act have raised questions about when they’ll be enacted and if the Conservatives will revise changes the previous Liberal government had planned.

Any amendments would be in addition to the first phase of changes introduced in November 2017.

Loeb, partner with the Toronto office of Shibley Righton LLP, tells Law Times that the approach to the first and second phases poses a problem because the amendments are overly cumbersome.

She says it appears that the changes and accompanying regulations attempt to anticipate every eventuality, which she believes is not possible.

Loeb says she would like to see the government take time to revisit the second phase of the proposals.

“It’s not that I’m against improving the Condominium Act, I’m not at all," she tells Law Times. I just think 66 pages of regulations on six sections of legislation is more than anyone can handle,” as was done in the first phase.

Date_Published
2019-01-29
Description

Audrey Loeb Head Shot

Changes to Ontario's Condominium Act allowing electronic voting is not the panacea the government had envisioned, Toronto condominium lawyer Audrey Loeb tells AdvocateDaily.com.

The Act was amended in November 2017, which was the first overhaul of the province’s condo law in more than 16 years. One of the changes allows electronic voting, which “is separate and apart from the proxy vote,” says Loeb, partner with the Toronto office of Shibley Righton LLP.

However, the provision has only led to confusion, she says.

“The more the government has involved itself in trying to correct things in the Condominium Act, the more challenging the whole thing has become for many people. It’s not simple,” Loeb says.

Prior to the amendments, if condo owners were unable to attend a meeting they could assign a proxy to vote on their behalf, she says.

Electronic voting was supposed to make it easier for condo owners to get involved in meetings, but instead, the lines have been blurred, Loeb notes.

“Initially, the purpose of e-voting was the notion that if you were unable to attend a meeting, you could participate online,” she says. “However, it’s become bastardized because the government didn’t make the provision clear.”

Loeb says the confusion lies in how to use online versus proxy voting.

“So you are supposed to use a proxy if you can't attend a meeting, and you are supposed to use e-voting if you are attending virtually," she says. "What has happened is people think that since there’s no restriction, they can cast an online ballot and don’t have to use a proxy even if they’re not participating in the meeting electronically.”

She says part of the problem is the government's failure to clarify the circumstances in which e-voting can be used “so it appears to be a duplicate of the proxy.”

“Originally, the intention was that electronic voting would be done if you are participating in the meeting, but that’s not how the government set it up," Loeb says. "To use electronic voting, you have to be present at the meeting. If a person is present because they electronically voted, then that means the numbers in attendance at the meeting are higher and the voting majorities will be affected accordingly. It will make running the meeting more challenging."

She says the province has made the process more complicated and it’s difficult to predict how it’s going to play out.

“What's supposed to be consumer protection legislation to simplify things has not," Loeb says. “Every time the government changes legislation, we lose clarity and new questions arise.”

Date_Published
2019-01-21
Description

Audrey Loeb Head Shot

A disclosure obligation for candidates of condominium boards in Ontario will help ensure boards consist of members working for the good of all, Toronto condominium lawyer Audrey Loeb tells AdvocateDaily.com.

“Anybody who wants to run for the board already has to disclose if they have any convictions or legal proceedings and other information set out in a bylaw,” says Loeb, a partner with Shibley Righton LLP. “We convinced the government to add a new requirement that board directors also disclose whether they own or occupy a unit in the building.”

She says this mandatory disclosure obligation came because of efforts to expose some individuals trying to gain control of multiple condo boards and through investigative reporting by CBC News journalists.

Loeb says she became aware of people seeking to become board directors at multiple condos in Toronto and Mississauga through a client.

“They heard rumours some individuals were making efforts to get onto their condo corporation board,” she says. “In one of our buildings, we prevented these people from succeeding in doing this.”

Removing a member from a board can be quite difficult, Loeb says, so it’s best to ensure capable and ethical directors are elected in the first place. She advises her clients to add additional candidate disclosure obligations, including information as to whether they sit on any other boards."

“We have enhanced disclosure obligations in our bylaws for clients to add more than what the province requires,” she says.

Loeb says she also drafts a code of ethics and conduct included in bylaws for her clients. While the Canadian Condominium Institute has a code of ethics, it lacks some details and does not include a code of conduct.

“Ours is more expansive than what many corporations use, and our bylaw also covers how to deal with a board member who becomes involved in litigation against the corporation,” she says.

“We look at issues that our boards have dealt with over the years and try to enhance bylaws,” Loeb says. “Any board member's breach of the code of conduct results in a warning. If the behaviour continues, you can be removed from the board,” Loeb says.

“The courts have upheld that provision, providing the corporation follows the proper protocols,” she says.

Boards should also communicate regularly with their owners to ensure everyone understands the issues and to give people a sense of what is happening in the building.

“We have always preached communication to our boards so that there is a trust that builds up.”

Loeb says, adding that she often advises boards to go above the letter of the law to protect themselves.

“Sometimes we tell them, ‘The law says this, and you don’t have to do anything beyond that, but sometimes it can be helpful to go above and beyond.’ We know from our experience what needs to be done,” she says.

For example, Loeb recalls a board that wanted to end valet parking at a building.

“I told them, ‘Under the Condominium Act you can get rid of valet parking, but I am advising you not to do this without holding a meeting of the owners,’” she says. “The board ignored my advice and terminated valet parking, and all hell broke loose.”

Unit owners can also ensure good governance by reading minutes and pressing boards to post them, she says.

Ultimately, Loeb says owners must know who they are voting onto a board.

“It’s like electing a politician,” she says.

 

Date_Published
2018-12-19
Description

Audrey Loeb Head Shot

There is no doubt the varied uses of technology are here to stay, but Toronto condominium lawyer Audrey Loeb says the use of drones and artificial intelligence could clash with the privacy rights of condo dwellers.

Loeb, a partner with Shibley Righton LLP, tells AdvocateDaily.com there are many technological changes happening in the condominium corporation industry, like the introduction of artificial intelligence to monitor HVAC systems and the use of airborne drones to police properties for infractions of no smoking policies.

In preparation for the forthcoming changes, she offers this advice — "hold onto your hats."

Loeb foresees that "privacy, or the lack thereof, is going to be a problem."

"I just don't think we have an idea of what's actually going to happen," she says of the construction and surveillance technology under development.

"Everybody knows it's coming, but we are not well informed as to what it's going to mean. Will these things come piecemeal or all at once? What's the expectation of privacy?"

Loeb says of concern is how the available technology will be utilized by condominium corporations, how much they will be prepared to spend, and what is involved in implementing the changes or installing the new systems.

She says there is so much work being done at present in the field of robotics that it won't be long before science is replacing jobs, noting that condominiums might eventually "employ" cleaners on every floor.

Loeb says enforcement of condominium rules can be problematic, citing, for example, no-smoking provisions or pet access areas.

"No one can be out policing 24 hours a day, seven days a week — except with a drone, although someone has to be operating it. The question then becomes: are residents going to be under 24-hour surveillance?"

She says there will be condominium corporations that feel it's important to pay for these services but they will also have to grapple with how this conflicts with the privacy rights of residents.

Date_Published
2018-11-15
Description

Audrey Loeb Head Shot

Condominium corporations will only investigate if someone has been smoking or vaping cannabis in their unit when a formal complaint is lodged, Toronto condominium lawyer Audrey Loeb tells CBC.

“Here’s the thing: nobody is going to be going into the units on a daily basis to inspect if anybody’s smoking,” says Loeb, a partner with Shibley Righton LLP.

Even medical users who have a licence for cannabis can expect to face challenges in condos across Toronto, stemming from objections from other residents, she says.

“I think it’s going to be tough to get a doctor to say that the only way you can take cannabis is through smoking, and that’s the only way you’ll get relief (of symptoms),” Loeb says.

One medical cannabis user who was diagnosed with a condition that causes brain seizures received an exemption from his condo corporation and told CBC that using marijuana has helped him reduce the number of seizures by 80 to 90 per cent

“It was utterly life-changing for me,” the man told CBC. “The Human Rights Code essentially trumps what’s going on in terms of condominium rules and a lot of the communication coming out doesn’t state that.”

A recreational user who vapes in her condo told CBC she worries there will be greater scrutiny on anyone who uses pot now that it’s legal.

“I don't think vaporizing smells nearly as much — I don't think this is any more than if I burned some incense or put my aromatherapy diffuser on,” she said.

Date_Published
2018-11-08
Description

Audrey Loeb Head ShotWith the clock ticking down to legal weed day, a growing number of condo communities are tackling the thorny question of what to do about marijuana use in individual units. Many have circulated surveys to their residents.

Yet as condo lawyer Audrey Loeb, a partner with Shibley Righton LLP, points out, many others “are doing absolutely nothing” to alter their rules.

To date, most of the public and media attention about this issue has focused on a few high-profile cases, such as a Mississauga woman with a life-threatening allergy to marijuana smoke.

But these sorts of conflicts are exceedingly rare, and tend to be addressed using human rights laws.

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

Please click here to read the complete story.


Date_Published
2018-10-22
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Audrey Loeb Head ShotFor all those condominium owners who are hearing about the Toronto apartment dwellers who do not have insurance to pay their expenses to stay elsewhere while their apartment building’s electrical service is being repaired,  do not assume that you are protected by the condominium’s insurance. You are not. 

The same problem would happen for unit owners, who do not have their own insurance to cover this expense. 

The apartment dwellers are bringing a class action against the apartment building owners in an attempt to get compensation. However if this happened in a condominium and the owners decided to sue the condominium, the owners would be suing themselves so any money they recovered would be paid by them to them. 

Insurance for out of building living expenses when caused by an insured risk as well as insurance for items not included in the corporation standard unit listing and for the payment of insurance  deductibles is something no unit owner should be without. The costs of these losses can be very expensive. Unit owner insurance is relatively inexpensive.

Date_Published
2018-09-18
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Audrey Loeb Head Shot

The interests of condominium developers continue to supersede those of buyers although legislation offering more consumer protection waits to be proclaimed, Toronto condominium lawyer Audrey Loeb tells Law Times.

Indeed, a decision by the Ontario Court of Appeal overturned a breakthrough 1999 decision for condo owners that "set a minimum standard of disclosure that has governed developer disclosure until recently," she says.

"While we wait, buyers continue to find themselves in condominium communities where the interests of the developers take precedence over those of the purchasers," Loeb says, adding recent amendments to legislation deal with issues in the industry, but they have not been proclaimed.

She says condominium law experts in Ontario have been urging the province to provide a requirement of good faith in developer disclosure obligations.

"The development industry has resisted this," says Loeb, a partner with Shibley Righton LLP. "We do not understand why franchise legislation in Ontario offers much better protection to franchisees than the Condominium Act does to homebuyers. The franchise legislation requires good-faith disclosure on the part of franchisors with significant repercussions for failure to comply."

She says in the 1999 case, a townhouse condo corporation and its developer argued over the adequacy of disclosure about the potential use of a piece of adjoining parkland. The corporation argued disclosure wasn't made in good faith.

The developer revealed only that the parkland might be repurposed, but that information was buried in the document, she adds.

Loeb says disclosure requirements were established in the early days of the condo industry when development was relatively simpler than the structures and projects now being built.

"Disclosure was straightforward and not onerous," she tells the online legal news outlet. "Things have changed. Condominium projects have become part of very complex legal arrangements with many moving parts."

However, she cites two recent, separate cases — both now under appeal — that stress the Condominium Act disclosure requirements during the sale of units is considered akin to consumer protection legislation. Both condo corporations were successful in the Ontario Superior Court in seeking "relief against onerous agreements to which they were bound on the grounds that they were not adequately disclosed to purchasers and, as a result, oppressive," Loeb says.

In one ruling, a condo corporation sought to renegotiate an agreement that had given the developer sole authority over decision-making involving shared facilities.

"Although the entire agreement was appended to the disclosure statement, the court found that the consequences to the condominium of the developer retaining sole control over all the shared facilities was not disclosed and the agreement to be oppressive," Loeb says.

"The remedies when finding oppression are equitable and the court acceded to the corporation's request to not strike down the agreements," she says. "Instead it asked the court to require that the parties renegotiate the terms."

In the other case, the condominium corporation sought relief from deals where it was required to buy an HVAC system, unsold parking spots and locker units, the article says.

Loeb says the court heard the initial disclosure that HVAC equipment would be inside residential units and leased from a third party but instead sold the hardware — placed on balconies — to the condominium corporation for $2.2 million. Expert evidence determined the equipment was really valued at $525,000.

The unsold parking and locker units were sold to the condo corporation for $1,026,375, but Loeb notes expert evidence placed the value at $73,000. A land transfer tax paid on the parking and lockers was charged back to the condo.

"The court found that a developer cannot put expenses off into the second year and not disclose the expense," she says.

Date_Published
2018-09-04
Description

Audrey Loeb Head Shot

 

The increasing number of units being used as short-term rentals is causing headaches for condominium boards, says Toronto condominium lawyer Audrey Loeb.

And she predicts those headaches will continue until the Ontario government steps in.

"I just think the government should take a more active role in helping the condominium corporations in terms of legislative modifications," says Loeb, a partner with Shibley Righton LLP.

"I think this mess of short-term rentals and allowing units to be used as hotels is really not the original intent and purpose of condominiums," she tells AdvocateDaily.com.

Loeb says the City of Toronto enacted a bylaw earlier this year that would, among other things, only allow licensed short-term rentals on an owner's principal residence, but it is being challenged this month before the Ontario Municipal Board (OMB). "Whether that will result in anything changing I don't know," she says.

The bylaw states a portion of a unit can be rented if the owner lives in it.

Loeb says these short-term rentals are becoming more popular as an alternative to hotels. With "tons" of condominiums owned by investors, "it's a good way to make a lot of money."

She estimates in an average downtown condominium building in Toronto, 70 to 80 per cent of the units are now probably owned by investors.

While it's making money for investors, condominium boards are struggling with issues of security — "nobody has a clue who's in and out of their buildings," and maintenance — "constant in and out means more wear and tear which results in greater expenses for all unit owners."

The owners of short-term rental units don't have anything but a financial stake in the building as opposed to the long-term commitment of owners who are living there explains Loeb.

"The whole concept of condominiums was you were going to end up with a group of people who were financially in the same set of circumstances and have the same interests in how to live.

"All of a sudden what we've ended up with in Ontario, at least particularly in Toronto, is a group of condominium buildings filled with investors, some of whom rent out to long-term tenants, and some are trying to run short-term rental businesses.

"The interest of somebody who has bought a unit as an investment, especially if they have multiple units, is not going to be the same as someone who buys a condo to live in it."

Loeb says the amount of time that has to be devoted by a condo board's property manager to monitor who might be running these short-term rentals is significant.

"As people get smarter, they do things to disguise the location of the unit so it means the investigative hat has to become more advanced in order to determine if it's actually your building in which they are offering a unit for rent.

"It's a huge operational problem for condominium corporations to stay on top of what's going on in the short-term rental business, to know who's doing it and to get enough evidence to stop it.

"Property managers are supposed to be managing the building, not staying online trying to figure out who's breaking the rules by offering short-term rentals."

Loeb points to a recent CBC story of a Toronto woman who thought she rented her unit to someone who would live in the unit. But the person she rented it to ran a short-term rental business and had about 70 clients.

"At the Landlord and Tenant Tribunal, she was able to get an order terminating the lease with that tenant."

Rental restrictions are not legislated in Ontario, Loeb says.

"The government ended up not allowing condos to restrict rentals and now we have this huge issue of condominiums just being filled with investors," she says.

Loeb says she doesn't see the law changing anytime soon.

"Without the investors, in my view, the condominium market would crash," she says. "The construction industry needs the work and people need accommodations."

Since the last Liberal government re-instituted rent control, "It's going to put even more of a damper on the construction of rental accommodation," Loeb says.

 

Date_Published
2018-08-15
Experience
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BIO

Shibley Righton's condominium authority Audrey Loeb brings you up to date on all the opportunities and challenges of the Condominium Act, 1998, as well as other complex issues arising in the field with "The Condominium Act: A User's Manual, 5th Edition (Ontario 2018)"

Please click here for more information.

Click here to purchase the book.


Audrey M. Loeb

Audrey Loeb, LSM, B.A., LL.B., LL.M has a focused practice in conveyancing and condominium law. She provides advice to buyers and sellers on conveyancing matters, to developers on condominium development, and to condominium corporations on issues of corporate governance and operations. She has received several professional awards including the Law Society Medal for her significant contributions to the profession and to the community, the Ontario Bar Association’s Real Property Section Award of Excellence, and the Osgoode Hall Law School Alumni Gold Key award. Audrey has been recognized as a leading practitioner in her field by Martindale and Hubble, Lexpert, and Best Lawyers in Canada for several years. She is a member of the Canadian Condominium Institute and has served as a member of a condominium board of directors.

Audrey is the author of the two leading texts on condominium law: The Condominium Act: A User’s Manual, 3rd Edition, Carswell, and Condominium Law and Administration, 2nd Edition, Carswell. She is also the author of the booklet Condominium Ownership: What you need to know.

Audrey is a frequent lecturer for the Toronto Real Estate Board, the Law Society of Upper Canada, and the Ontario Bar Association. She has served as Co-chair of the Ontario Bar Association, Real Property Section Condominium Committee, and has been a member of the Ministry of Consumer and Business Services Real Property Registration Committee, the Ontario New Home Warranty Program Consumer Advisory Committee, the Board of Directors of the Real Estate Council of Ontario and National Board of Directors of the Canadian Condominium Institute. She is a member of the Expert Panel created by the Government of Ontario to review and advise on proposed amendments to the Condominium Act, 1998 and has been an active participant with the government in creating condominium law in Ontario.

In 2016, Audrey travelled to New Zealand to lecture at Auckland University Law School and at a legal Symposium in Christchurch. She was a co-founder of the Condominium Dispute Resolution Centre. She is a Professor Emeritus of Law at Ryerson University, School of Business Management. She has completed the Institute of Corporate Directors and the Joseph L. Rotman School of Management’s Financial Literacy Program for Directors and Executives and the Governance Essentials Program for Directors of Not-For-Profit Organizations.

Audrey is also a former member of the Board of Directors of Bridgepoint Health and of the Princess Margaret Hospital (now known as the Princess Margaret Cancer Foundation), as well as the founder of the “Weekend to End Women’s Cancers” benefitting the Princess Margaret Hospital Foundation.

Contact Information

T: 416.214.5267
F: 416.214.5467
aloeb@shibleyrighton.com

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Education

LL.M., London School of Economics and Political Science

LL.B., Osgoode Hall Law School, York University

B.A., McGill University

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