Picture
Picture
Name and Title
Megan Mackey
Partner
Partner
Year of Call

2004 (Ontario)

British Columbia (2008)

Memberships
  • Law Society of Ontario
  • Law Society of British Columbia
  • The Advocates’ Society
  • Ontario Bar Association
  • Canadian Bar Association
  • Association of Condominium Managers of Ontario
  • Canadian Condominium Institute
Publications
Description

Megan Mackey Head Shot

Condo corporations may lawfully ban pets in certain circumstances, says Toronto condominium and commercial litigator Megan Mackey.

Global News recently reported on a campaign by residents of two Toronto condo buildings seeking to overturn their board’s recently introduced ban on pets.

Mackey, a partner with Shibley Righton LLP, says the dispute is a useful reminder to unit owners and renters of the power Ontario’s Condominium Act confers on boards to make their own rules and bylaws.

“The only restriction on the condo corporation when implementing rules is that they must be reasonable,” she tells AdvocateDaily.com. “Rules cannot be implemented to ban pets unless there are reasons to do so, such as safety and security issues.

“As long as it’s within the realm of reasonableness, a court won’t interfere or overturn the rule. It’s not possible to comment on this precise instance without knowing all the facts,” Mackey says.

According to the Global story, the Toronto condo corporation’s ban is complicated by the fact that the property has a series of designated dog areas and a dedicated “dog run.” One resident quoted by the news outlet said she had moved there in 2017 “partially because it’s a pet-friendly community.”

The woman — who also fosters shelter dogs — is spearheading a petition to reverse the ban, which a residents’ association spokesperson blamed on the irresponsible actions of a minority of pet owners in the buildings.

A lawyer for the condo corporation explained to Global that the pet prohibition passed in 2016 following concerns about “the cleanliness of hallways, elevators, the lobby and other common areas.” But its in-force date was postponed more than two years to allow residents to register grandfathered pets already on the property.

Mackey says the condo may wish to explore other options to target troublesome pet owners, noting that building managers in Florida have caused a stir by threatening to identify rogue owners via DNA kits using samples from abandoned dog feces.

“The idea is that you require each dog to be registered with a sample of their DNA, and then you can perform tests to find out which owners are not cleaning up after their pets,” she says. “But from what I’ve heard about the Florida cases, the cleanliness problem went away as soon as the system was implemented.”

Mackey says it would also be relatively simple for the corporation to reverse its decision if a majority of the board agreed, and owners were in favour of the change.

“The rule doesn’t have to be permanent,” she says.

In other cases, Mackey says Canadian courts have upheld bans on pets over a certain weight and limits on the number of pets per unit.

“People love their pets, so my message to someone who is looking at buying a condo is to check whether it is a pet-friendly building, and the likelihood of it remaining that way,” Mackey says, adding that she would encourage prospective purchasers to have a lawyer check the condo’s rules, bylaws and declaration.

“The declaration is much more difficult to change than rules, so if the declaration explicitly permits pets, then the board does not have the same power to change that,” she says.

 

Date_Published
2019-11-12
Description

Megan Mackey Head Shot

Consumers scored a big victory when an Ontario Superior Court judge ordered refunds of huge closing adjustments paid by purchasers of brand new condo units, says Toronto condominium and commercial litigator Megan Mackey, who represented the successful litigants.

Mackey, a partner with Shibley Righton LLP, acted in the case for a group of new condo buyers, each forced to pay between $11,000 and $16,000 for a “parks levy” adjustment on closing .

In his Oct. 10 judgment, Ontario Superior Court Justice Geoffrey Morawetz sided with the purchasers, ordering the condo developer to repay the levy with interest after ruling the clause referring to the adjustment in their agreement of purchase and sale was ambiguous, and therefore unenforceable.

“It was a big win for the little guys,” Mackey tells AdvocateDaily.com. “We’re delighted with the decision, which is a victory for consumers who can easily be taken advantage of in certain circumstances.”

Mackey says closing adjustments are consistently among the most irritating issues for buyers of new condos. While resale purchase agreements tend to match the closing price, barring some small changes to account for prepaid items such as property taxes and maintenance fees, she says newly constructed condos include numerous price adjustments to pay for things like utility connections and other development fees.

“It’s a big problem,” Mackey says. “When you buy a new condo, you look at the plans and agree on a purchase price, but then when it comes time to close, there’s a whole list of additional charges and fees that appear on the statement of adjustments, and people end up paying much more than they anticipated.”

While Tarion, Ontario’s new home warranty provider, has attempted to help purchasers understand adjustments provided for in agreements of purchase and sale, Mackey says buyers often feel pressured to pay for fear of losing deposits or forfeiting appreciation value for a property they may have bought years previously, and are frequently already living in by the time the closing date comes around.

“If you’re a developer with a 100-unit condo, and you charge an extra couple of thousand dollars to every owner, that adds up to a lot of money,” Mackey says. “But for each unit owner, it’s usually not a large enough amount to justify the time or legal fees involved with attempting to get the money back.”

However, she says new buyers have recently been empowered to take collective action in more egregious cases.

In one 2016 matter, Mackey acted for a number of buyers improperly charged thousands of dollars at closing. They each paid roughly $2,500 for the installation of water meters that were never actually installed.

The unit owners launched actions in Small Claims Court, all heard together in a single trial. The judge ultimately ruled in the residents’ favour on that issue.

In her most recent case, Mackey says the unusually large size of the adjustment charged, combined with the number of individuals who joined the action, helped make the lawsuit financially viable.

According to Morawetz’s ruling, the agreements of purchase and sale signed by the owners provided for an adjustment to cover “the amount of any parks levy or other charges pursuant to a section 37 agreement (pursuant to the Planning Act), levied, charged or otherwise imposed” on the condo development.

However, since the developer’s Planning Act requirements were satisfied by a land transfer, rather than a payment, the owners argued no parks levy was actually paid, nullifying the adjustment charge.

Morawetz was not convinced by the developer’s arguments that a levy could include a land transfer, noting that at best, its “position gives rise to an ambiguity” in the agreement of purchase and sale. Since it was a consumer contract, the judge said he was bound to interpret any ambiguity against the drafter — in this case, the developer.

“I am in agreement with the position put forth by the [purchasers]. The [agreements of purchase and sale] do not require the [purchasers] to pay for the notional value of parkland transfers to the city,” Morawetz wrote. “The [developer] is to repay to each of the [purchasers] the amount of the park levy (inclusive of HST) that each of them paid at closing together with interest.”

 


Date_Published
2019-10-23
Description

Megan Mackey Head Shot

A recent court ruling that saw a condominium owner lose her unit due to the actions of her tenant is good news for condo residents but could have a “chilling effect” on investors, says Toronto condominium and commercial litigator Megan Mackey.

The Ontario Superior Court of Justice found that a woman was responsible for her tenant’s legal costs in a failed lawsuit and granted possession of the unit to her condominium corporation so it could be sold to pay $86,000 in fees.

Mackey, a partner with Shibley Righton LLP, says she was “quite shocked to see that legal defence costs could be tacked onto the unit — not for what an owner did, but for a lawsuit filed by a tenant.”

While unusual, the ruling does have some positive ramifications, she says.

“This case came as a surprise to some of us in in the industry,” Mackey tells AdvocateDaily.com. “This is a really novel decision because condominium corporations get sued all the time, and it causes them to incur a lot of costs.

“Until now, it’s the other unit owners that have had to pay to defend these lawsuits, but with this decision, when an owner or their occupants lose, they’re going to end up paying all of the condominium’s legal fees.”

She says “many unit owners will be really pleased” with the ruling because such legal fees have been passed on to them. It can be costly, particularly at complexes where there have been many lawsuits, Mackey says.

However, if you are an owner and rent out your unit, the judgment should serve as a warning, she says.

“This decision will certainly have a chilling effect for many investors in the city,” says Mackey. “My message to investors is to be very careful who you let move into your unit.”

She says the case is a lesson in knowing and understanding the rules that govern a condo.

Court was told an owner rented her unit to a man who was in constant conflict with the condominium corporation and building management and filed a $5-million lawsuit.

The lawyer representing the corporation recognized the claim was unlikely to succeed and warned the owner that failing to dissuade her tenant from moving ahead with court action could ultimately have serious consequences for her.

The owner failed to heed the advice, and her son swore an affidavit that supported the suit, which failed at trial and on appeal.

Court ordered that the legal costs be added to the common expenses of the owner’s unit. When she failed to pay the outstanding fees, the corporation registered a lien against her unit.

Mackey, who was not involved in the case and comments generally, says she commends the corporation’s lawyer for bringing the consequences to the woman’s attention at the outset of the dispute — before legal costs were incurred.

She also notes that the owner claimed she wasn’t properly notified of the lien against her unit. However, the corporation maintained they sent her notices to the address she provided, which was the procedure according to condo bylaws.

“We often face issues where owners complain they didn’t get the notice,” Mackey says. “In this case, the court had no interest in listening to that, which I thought was excellent.”

She says it’s not unusual for unit owners to pay legal costs when they have physically damaged the complex, or disturbed other residents because of their conduct.

“It’s common to see legal costs awarded against owners, but in all of the cases I’ve been involved with it’s where the owner or the occupant physically does something that causes the condominium to incur costs,” Mackey says. “But in this case, it was just paperwork. It was a lawsuit.

“I think this decision is unique because it’s the first time that the courts have agreed that even though these monetary losses were not necessarily tied to physical behaviour in the building, it can all be charged back against the unit.”

She says it will be interesting to see the impact the judgment has on the industry.

“Although this is new and a change for those of us who practise in this area, maybe it’s a change for the better. Time will tell,” Mackey says. “This is a whole new level of scrutiny that investors should consider when choosing a tenant.”

Date_Published
2019-09-17
Description

Megan Mackey Head ShotIf you live in a condo and want to build a deck or make other changes to your common areas, work with your board to enter into a mutual agreement that will make it permanent to avoid future cost and conflict, says Toronto condominium lawyer Megan Mackey.

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

Please click here to read the rest of the story.

Date_Published
2019-09-06
Description

Megan Mackey Head Shot

Residents will struggle to challenge condo-imposed bans on balcony barbecuing, says Toronto condominium and commercial litigator Megan Mackey.

Mackey, partner with Shibley Righton LLP, says Ontario’s Condominium Act gives condo corporations broad power to set their own bylaws regarding behaviour, not just in common areas, but also inside an owner’s unit.

Some of the most problematic — yet common — restrictions involve smoking, pets and parking, but barbecue bans are not unheard of, Mackey tells AdvocateDaily.com. And while rules can be challenged in court, she says unit owners and residents face an uphill battle to overturn them.

While little of the existing case law deals with barbecues specifically, she says decisions concerning balcony, patio and terrace furniture, such as pergolas or trellises, suggest judges will give a great deal of deference to the condo board that set the rule in question.

“As long as the rule is reasonable and promotes the safety of people in the building, the court probably won’t interfere, so condos are pretty free to do whatever they deem fit,” Mackey says.

In fact, she says there is a stronger case to be made that barbecue restrictions are justifiable for safety reasons due to the smoke and odour concerns that come with a grill, as well as the potentially flammable propane power source.

“It doesn’t seem at all unreasonable to impose a ban in cases where you have balconies near to other residents’ windows if the smoke can blow in,” Mackey says.

She says some condos draw a distinction between propane and electric barbecues, acknowledging the reduced fire risk attributable to the plug-in version.

“Even with an electric barbecue, there are still no guarantees it will be allowed on the balcony. The building would have to be designed in such a way that odours and smoke will not blow into other units,” Mackey says.

For prospective condo owners who regard the right to barbecue as make-or-break, she advises them to carefully read the condo’s declaration and bylaws before committing to any purchase. Some condo corporations have made a virtue of their own permissive rules regarding barbecue use, Mackey adds.

“There are buildings where dedicated gas lines have been put out to terraces or balconies, which eliminates at least the safety concerns about propane tanks,” she says. “Then there are other situations where the condo has a very large terrace or rooftop patio, where barbecues are installed for communal use, or where owners are allowed to keep their own.

“Hopefully that would meet people’s needs. It would certainly be nicer to use a barbecue on your own balcony, but it’s not always feasible,” Mackey says.

 

Date_Published
2019-08-20
Description

Megan Mackey Head Shot

Legislative changes may be needed to stem the recent tide of cancellations of condo building constructions, says Toronto condominium lawyer Megan Mackey.

The Toronto Star reports that pre-construction buyers have been stunned by a spate of cancelled projects in the Greater Toronto Area (GTA), sometimes years after they paid their deposits.

Condo analytics firm Urbanation recorded 4,202 cancelled units in the GTA in 2018, almost triple the level for 2017, when there were 1,678. Even that marked a significant jump from 2016 when the number of cancelled units was just 379.

And with 2019 set to continue the trend, Mackey, partner with Shibley Righton LLP, tells AdvocateDaily.com she’s worried the situation is shaking consumer confidence in the sector as a whole.

“I just hate reading about these cancellations, and I’d like to see some changes to the whole procedure so that it stops happening,” she says. “It’s incredibly frustrating for consumers because when you buy something as major as a home, you don’t expect someone to turn around and call it off like it’s some sort of hotel booking.”

Although prospective buyers typically get their deposits back following a cancellation, investors are unlikely to receive any interest on their down payment, says Mackey, who is also a civil litigator. They also lose out on the equity that would have built up in their property in the meantime. That can amount to a significant sum in a market as hot as the GTA.

“You don’t get as much for the same money as you would have a few years ago because the cost of condos in this market has increased a lot in that time,” she says.

According to the Star story, Tarion, the province’s builder regulator, has begun a standard review into the cancellation of an east-end Toronto project with 119 units, which the developer blamed on construction costs, delays and financing issues.

“Tarion has been trying to address it, but there’s a limit to what they can do,” Mackey says, explaining that the current restrictions on when a project can be cancelled are fairly limited and open to interpretation.

The Star quotes an Ontario government spokesperson who claimed Tarion’s recent restructuring to reduce the conflict between consumer and builder interests would boost buyer protection.

Meanwhile, a Tarion spokesperson pointed out that the agency has the power to sanction dishonest builders by reducing the number of homes they can build annually, or revoking their registration altogether.

“The unique circumstances of each cancellation are what dictates how much time is required for Tarion to do its due diligence,” Tarion spokesperson Melanie Kearns told the newspaper.

Mackey warns that “there are no easy answers” in the quest to reduce the incentive to cancel in a hot property market.

“I feel like it could be solved if developers weren’t allowed to pre-sell condo units at such an early stage,” she says. “Lots of developers cite increasing costs, and financing trouble because of the price they’ve pre-sold units. If they’re forced to wait until later in the process to begin pre-sales, maybe the prices would be more in line with construction costs, and you’d have fewer cancellations.”

Until reforms are enacted, Mackey says pre-construction condo buyers need to increase their due diligence to account for this emerging risk factor.

“Know your builder,” she says. “If it’s a company with a long track record and no cancellations, you might prefer them over a newer builder that seems a bit more stretched financially.

“It’s hard to predict but if you want a new condo as opposed to a resale, one of the downsides is that there does seem to be a significant risk that a certain number will be cancelled.”

 

Date_Published
2019-06-19
Description

Megan Mackey Head Shot

Condo buyers who wish to avoid a dispute over construction deficiencies should choose their developer carefully, says Toronto condominium and commercial litigator Megan Mackey.

Mackey, partner with Shibley Righton LLP, says construction issues are a fact of life in the industry.

“I’m not sure that there’s ever been a condo built without some sort of problem,” she tells AdvocateDaily.com.

“In the first year or two after construction, purchasers will be working with the developer to resolve all those deficiencies, so it’s a bit of a partnership,” Mackey says, adding that potential buyers can get a sense of how the relationship is likely to go by doing a bit of due diligence in advance.

“If a builder has been in the business a long time and people seem generally happy with their product, that could be a pretty safe bet,” she says. “If they’ve been sued a few times by owners, that might be a red flag and you may not want to get involved with them.

“My message to consumers is that when you buy a new condominium unit, one of the more important things to think about is who you’re buying it from and what their reputation is.”

Mackey says only a minority of construction deficiency disputes end up in litigation, thanks in part to the coverage provided to buyers by Tarion’s Ontario New Home Warranties Program.

“Some problems are more complex than others,” she says. “When any kind of water penetration or leak is involved, that can be incredibly frustrating and expensive. Other issues are not such a big deal. In most cases, the condo board can sit down with the developers and engineers to resolve the issues.”

In the past, Mackey says condo conversions — in which builders put pre-existing properties, such as warehouses, churches and office buildings, to new residential use — were more prone to litigation because the warranty did not cover this type of project.

“When buildings are converted from a previous use, purchasers who are buying brand new units might not always understand that distinction.”

Mackey says things changed last year when amendments to the Tarion program extended warranty coverage to “residential condominium conversion projects.”

Mackey’s only construction deficiency case to reach trial involved a condo conversion, and she says it may never have gotten that far had Tarion’s new rules applied back then.

The condo in question was incorporated in the late 1990s following the conversion of a building originally constructed in the 1970s, she explains. The owners took the developers to court over a number of issues, including their alleged failure to repair an underground garage.

While a trial judge sided with the developer, the Ontario Court of Appeal (OCA) reversed the decision, finding among other things that the developers had breached their warranty to buyers to provide a substantially renovated parking garage.

“Doing nothing more than paint the garage fell far short of the parties’ reasonable expectations,” the OCA panel concluded in its 2009 decision.

Mackey says the buyers’ ultimate success in court was tempered by the time it took to get vindication — more than a decade.

“That’s a lot of time and expense,” she says. “What this case reflects is how difficult it can be for a condo corporation to rectify construction deficiencies when a developer is not abiding by the agreement the buyers thought they had.

“There are numerous condo developers in this province, and many of them manage to avoid litigation because they’re able to work with buyers to sort out any issues and come to a compromise,” Mackey says.

Date_Published
2019-05-13
Description

Megan Mackey Head Shot

A condo owner’s unit is not his or her castle, Toronto condominium and commercial litigator Megan Mackey tells AdvocateDaily.com.

Mackey, partner with Shibley Righton LLP, says many new condo owners are shocked to discover that various sections of Ontario’s Condominium Act provide representatives of the corporation with the right to enter a unit under certain circumstances.

“It’s not like a freehold, where you might say that a person’s home is their castle,” she says. "Many owners don’t appreciate that condo management has rights of access to every unit, and it can be upsetting when they realize it for the first time.

“But when you buy in, you accept that fact. My message to someone who is extremely private is that condo living may not be for them,” says Mackey.

Typically, she says the reasons for entry relate to maintenance and repair.

“Most often, it’s to do with fire inspections or to make sure the balcony is safe,” Mackey explains. “Of course, they have to give written notice before they go in.”

The Act does provide for entry without notice in emergency situations, such as the report of a water leak, she says.

“They have to identify the source of the leak as soon as possible, and shut it off,” Mackey says. “There are many cases where written notice can’t be given in advance, and that can be troubling to some people.”

Other situations can prove more controversial and elicit greater objections from unit owners, such as serious cases of hoarding, which frequently involve large quantities of newspaper or other combustible material.

“The individual may not want the corporation to come in because they’re embarrassed about the state of their unit,” Mackey says. “But when there’s a significant fire hazard, it doesn’t just affect that owner, it also affects their neighbours and everyone else in the condo.”

In a recent matter, she obtained a court order on behalf of a condo board seeking to enter a hoarder’s unit in order to fulfil health and safety obligations.

“Owners get very upset and can suffer from serious anxiety, but the condo has a legal duty to protect the safety and security of its residents,” Mackey says. “You used to see more small claims court actions by unit owners alleging trespass and suing the corporation for damages, but I think they’re getting fewer and farther between as people start to accept the nature of condominium living.”

She says owners are likely becoming more familiar with the condominium's right to enter their units.

 



Date_Published
2019-04-23
Description

Megan Mackey Head Shot

The Ontario Court of Appeal (OCA) handed consumers a victory when it upheld a lower court’s ruling demanding that condo developers explain what they’re selling by using plain language in disclosures, says Toronto real estate lawyer Megan Mackey, who represented the plaintiff in the matter.

Condo developers can’t just technically meet disclosure requirements under the Ontario Condominium Act, says Mackey, partner with Shibley Righton LLP.

She tells AdvocateDaily.com that she hopes the ruling will set a new expectation for easier-to-read condo disclosure documents.

The OCA ruling supported the plaintiff’s position by upholding an earlier Superior Court of Ontario decision that found disclosure has to be clear, transparent and easy to understand, says Mackey.

“The section in the Condominium Act about disclosure is really long, and it has many requirements, but there are technical ways to meet those requirements,” she says. “And then there are practical ways.

“This decision sends a message to the developer community that technically meeting the requirements of the Act may not be enough. Practically speaking, what is being disclosed needs to be readable.”

The case demonstrated how a developer tried to take advantage of condo purchasers, which is why condo lawyers will appreciate the OCA’s decision, says Mackey.

“The overall message from the court is that developers don’t have carte blanche to start extracting money from buyers on top of the purchase price, or creating what I call ‘income streams’ for themselves,” she says "unless the financial repercussions of those aspects of the purchase are disclosed to consumers in readable language."

In this case, the developer apparently got into financial trouble but saved this particular project and created income streams, where a buyer not only purchased a unit, “but actually bought into an obligation to make ongoing payments to the developer for the next 25 years,” Mackey says.

That was difficult for the condominium buyers because they felt they were done making payments to the developer after settling on the purchase price and closing costs, she says.

“But in this case, there were ongoing payments which were significant” for heating, ventilation and air conditioning equipment (HVAC), Mackey says.

The HVAC appliances cost the developer $575,000, but the cost to consumers was based on a price about four times more than that, she says. Although the consumers were eventually told how much they would have to pay for the HVAC appliances, they were not told that the developer inflated the price after the purchase agreements had been signed.

The court found that was unacceptable, says Mackey.

"The developer also required consumers to make ongoing payments to compensate the developer for surplus parking and storage units that no one wanted. Purchasers were not told this would affect their monthly carrying costs for their condominium units," she says.

“When you buy a condo, the developer, by law, must disclose a number of things, including what the monthly expenses are going to be,” Mackey explains.

The developer estimates the expenses in the first year of operation and the disclosure allows a buyer to determine if they can afford the unit and the monthly fees, she says.

“Disclosure of your ongoing ownership costs is important because some consumers buy into condos knowing what they can afford. Unless they know what the monthly condo fees are going to be, they can’t accurately make that calculation.”

Mackey says some developers create income streams that won't kick in until the second year to keep them out of the first-year budget.

“So, these purchasers see their ongoing costs, and they don't realize that in the second year, the costs are going to jump by $100 a month, for example,” she says.

Documents in a condo purchase can be confusing — to the point where lawyers have difficulty understanding them, Mackey says.

“When you buy a condo, you get the disclosure package, and it's enormous,” she says. “It’s usually more than a hundred pages of documents. They’re in fine print. They're confusing. You're getting a draft declaration. You’re getting draft bylaws.”

Mackey says the Superior Court judge’s ruling "can be seen as quite critical” of the way things are done by some condominium developers.

She says the decision was clear — information should be conveyed to the consumer “in such a way that they can understand what they are buying. That was significant in our view because it was the first time the unreadability of these statements got a comment from the bench.”

The OCA was coy in its ruling, however, saying it wouldn’t directly discuss readability but nevertheless suggested disclosures should be readable, Mackey says.

“Given the motion judge’s finding that the disclosure was confusing, it is unnecessary to consider … criticism that she found the disclosure of the material changes was insufficient because it was not made in ‘simple, readable language,’” Justice Russell Juriansz ruled. “Suffice it to say that the documents a developer uses to make revised disclosure must be readable and free of unnecessary complexity.”

Mackey says, "While there are many consumer-friendly developers who stand behind their products and have great reputations, unfortunately not all condominium builders pay attention to the consumer’s experience."

She hopes that all developers will now feel obligated to make their documents “readable and free of unnecessary complexity. We would like that to be the new standard.”

Date_Published
2019-04-04
Description

Megan Mackey Head Shot

Shared facility disputes are a frequent source of litigation which is why cost-sharing agreements are worthwhile to iron out ahead of time, Toronto real estate lawyer Megan Mackey tells AdvocateDaily.com.

There’s no shortage of examples when two buildings adjacent to each other share such things as a parking garage, repairs, recreational facilities, roads, maintenance and operating costs, says Mackey, partner with Shibley Righton and an experienced real estate lawyer who works on behalf of condominium corporations, boards and unit owners to efficiently resolve legal matters.

She says signing contracts to determine who pays for what, and to what degree, can save each party time, money and legal tangles.

“There are also cases where reserve funds are required for unexpected expenses and long-term maintenance,” Mackey says.

If, for instance, the lighting system in a shared garage needs upgrades to reduce electricity costs, that kind of agreement and the price tag can be “split in accordance with the parties’ interests,” she says, adding that both should contribute fairly to the reserve fund.

Mackey also learned of one case where townhouses and two towers shared a massive water main, typically needing to be replaced every 70 years. “But when it comes up, the cost is very high. Sometimes there are those sorts of rare one-off events that really need to be added to the cost-sharing agreement,” she says.

Mackey, who also practises condominium law, and provides strategic advice and assistance to clients involved with condo and commercial disputes.

“It’s easiest to control these when the interests are split into percentages and on a schedule, as well as who will take responsibility to manage issues when they arise,” she says.

“One side may feel they are overpaying for a certain item, but if it’s something that gets addressed annually, it will hopefully avoid some of the frequent and pettier disputes that can come up in shared facilities.”

If it’s something unique to one condominium, it should be excluded from the cost-sharing agreement, Mackey says.

“We often see problems arise in multiphase developments, where the townhouses use all the roads, and there are two towers that don’t. Those roads that are used exclusively by townhouse residents should be excluded from cost-sharing. It’s not fair for the people in the towers to pay for roads they never use,” she says.

“We see the same thing between commercial and residential condominiums. Many times, there will be a loading bay. The residential side — since it has so many more units — ends up paying for the loading bay, although it’s only used for commercial. Those are the kinds of things that we wish weren’t in the cost-sharing agreements, but they come up all the time.”

Mackey often suggests that both sides jointly retain the same experienced engineer for items like ventilation and wiring to avoid multiple opinions arguing it out in court.

“The good thing with this kind of cost-sharing is that often — with an engineer’s help — they calculate the division through a precise percentage. The engineers are great at this,” says Mackey, who has authored a number of articles for leading condominium publications, and has been invited to speak to industry groups such as the Association of Condominium Managers of Ontario, the Canadian Condominium Institute, and the real estate section of the Ontario Bar Association.

Date_Published
2019-02-14
Description

Megan Mackey Head Shot

Condominium corporations should enact anti-harassment rules to protect their property managers and staff, Toronto condominium and commercial litigator Megan Mackey tells AdvocateDaily.com.

Mackey, partner with Shibley Righton LLP, says it's an emerging and growing issue, and she has dealt with numerous cases involving emotional, and more rarely, physical abuse of those who work in condominiums.

“It’s a very serious problem that can affect a person’s whole life,” she says. “Managers have to deal with all kinds of things in their work, whether it be floods, snowstorms, or unexpected staffing shortages. But there’s no reason why they should have to put up with harassment in the workplace. It’s completely unnecessary.”

According to Mackey, condo corporations can make her job easier by incorporating an anti-harassment policy into their rules that specifically prohibits unit owners and residents from harassing people on the site.

“Anti-harassment provisions give us more tools to address problematic behaviour in the event we have to go to court,” she explains.

Mackey says the front-line nature of the property manager's job makes them a convenient target for problematic residents. Although condo boards set rules and make decisions, it’s usually up to the managers to enforce them.

“The manager is the messenger communicating decisions to residents, so they are usually the ones who bear the brunt of frustration, even though the issue is usually outside of their control,” she says. “People seem to take it personally — as if the manager is specifically targeting them — rather than simply doing their job and enforcing rules for everyone.”

Mackey says the property managers at some of her client condo corporations have been on the receiving end of “horrific" emails or verbal abuse delivered in-person at the management office. In one recent case, the police had to be called when a resident’s attacks turned physical.

“It terrorizes people,” she says.

“But the good news is that there are steps that can be taken,” says Mackey, who warns that a laissez-faire attitude to harassment could see corporations struggle to attract talented applicants for property manager positions.

“Great managers aren’t going to stick around if they’re not being protected, and you could end up with a revolving door if the abuse continues,” she says.

Mackey says court proceedings can be instituted, resulting in an order for a troublesome resident to behave themselves. She tries to tailor the requested order as specifically as possible.

“Depending on the behaviour exhibited, you can get a court order that is quite specific in addressing it,” she says.

For example, a resident who was frequently appearing at the property manager's office to insult employees was ordered to call ahead before showing up.

“That took the edge off because staff members were able to get on with their duties without worrying about whether she would appear out of nowhere,” Mackey says.

In another case, a tenant in a unit was blocked from communicating directly with the property manager’s office and ordered instead to communicate any concerns via the unit owner.

In most cases, she says a court order is enough to force residents to “fall in line” and stop the harassment. However, for extreme cases, it is possible to obtain an order directing the individual to vacate or sell the unit.

“The abuse will only rarely be bad enough to warrant that kind of remedy, and judges will be reluctant to make the order,” Mackey says.

Date_Published
2018-12-31
Description

Megan Mackey Head Shot

Condominium boards and managers should deal with hoarding and pest issues quickly, going to court if necessary, to stay on top of potentially expensive problems, says Toronto condominium and commercial litigator Megan Mackey.

“Often, the condominium board doesn’t really appreciate how bad the problem is and what risks are associated with it,” Mackey tells AdvocateDaily.com.

She says hoarding typically comes to light as the result of a pest infestation or a plumbing issue.

“We may get reports of pests or leaks coming from a unit,” says Mackey, a partner with Shibley Righton LLP.

“If it’s reported as a plumbing issue, the plumber may refuse to go into the unit because he or she discovers there is a hoarding problem,” she says.

“For most condos, the annual fire inspection is a good way to keep an eye out for hoarding.”

Mackey recalls a hoarder that had both plumbing issues and pests in their unit.

“Everything came to light because the leaks in one unit caused a hole in the drywall of the ceiling of the unit below and the cockroaches were coming in through holes caused by water leaks,” she says.

When there was no resolution reached with the unit owner, Mackey says the condominium corporation took him to court.

“The owner told the judge he bought four cockroach traps. The owner felt he was addressing the issue, but the traps would only scratch the surface of the problem,” she says.

Mackey says she was able to get a court order allowing the condo corporation to clear out the entire unit and do whatever repairs were needed.

“The fees were all billed to the unit owner,” she says.

Many hoarders will continue the behaviour even after all the repairs are made and the unit is cleaned up, Mackey says.

"When that happens, the best response is to go in quarterly with a cleaning crew,” she says. “Regular cleaning can stop the situation from becoming a problem.”

Another hoarding example that Mackey was called about concerned an elderly couple with mobility issues. One was a chain smoker, which was particularly worrying, she recalls.

A condo manager must give people 48 hours’ notice before going in for an inspection unless there is an emergency, Mackey explains.

Once this couple was given notice, the manager saw them dragging items to their storage locker, despite their mobility problems, she says.

“After the inspection, they dragged everything back,” Mackey says.

“We went to court and negotiated an order that spelled out how many storage bins of belongings they were allowed to keep in each room. It was the first time I’ve ever had to do that.”

Other indicators of hoarding, Mackey says, can include items being stored in a parking space between the car and the wall or unit windows covered with foil.

“If there is a suspicion of hoarding, it’s important to look into it,” she says.

While condo corporations usually bill hoarders for the cleanup, that’s not the case with pests, says Mackey.

“When it’s a pest problem that’s not associated with hoarding we recommend not charging the owners,” Mackey says. “If you charge, nobody will ever tell you they have pests.”

Especially with bedbugs, you just want to get rid of them quickly, she says.

“A condo board may spray all units in a certain area to ensure pests are exterminated and haven’t travelled to other units,” says Mackey.

Some condo corporations put pest control as a line item in the budget, she says, “and all of the owners would contribute to pest control as part of their fees.”

Regardless of the problem, be it hoarding or pests in a specific unit, Mackey says the key is to act right away.

“The problem is not going to be any easier or cheaper to address down the road,” she says. “It will likely be more expensive, especially if you end up going to court.”

Date_Published
2018-11-13
Description

Megan Mackey Head Shot

In the final instalment of a three-part series, Toronto condominium and commercial litigator Megan Mackey discusses service agreements and penalty clauses.

Securing a contractor for a project is one of the most important jobs a condominium corporation’s board is tasked with, Toronto condominium and commercial litigator Megan Mackey tells AdvocateDaily.com.

In this three-part series, Mackey, a partner with Shibley Righton LLP, shares some of her tips to help the process run more smoothly.

After selecting the preferred bidder, the condominium must get everything in writing in the form of a service contractshe says.

To ensure the time and effort taken to draw up detailed tendering documents is not wasted, Mackey says it’s crucial that the final terms of the contract reflect the scope and timing of the project.

In addition, she says it’s important that both parties are on the same page when it comes to expectations for the final product.

For example, Mackey says many condominium boards enter renovation projects with the aim of exploiting government rebates designed to encourage energy-saving behaviour. However, the eligibility rules are often complicated and strict, she says.

“I have had clients who heard about rebates, went through the project, and then found out that they had missed the deadline to apply, or failed to use the right materials,” Mackey says. “All those details need to be addressed up front in the service agreement, including whether the contractor is expected to apply for them on the board’s behalf.

“If the rebate is important to the condo, then I’d suggest including in the contract some kind of financial repercussion to the contractor if they are responsible for the failure to qualify,” she adds.

Even without government rebates, Mackey says condo boards are frequently motivated by the potential savings that come with more modern retrofits.

When the board is persuaded by promises made on behalf of the successful bidder, she says penalty clauses included in the service contract can also serve as a useful enforcement mechanism.

“Many of our clients have purchased lighting retrofits, for example, where contractors promised all sorts of energy savings and claim the equipment will pay for itself within a few years,” Mackey says. “In some cases, the actual savings came nowhere near to meeting those projections.”

If the dollar value of savings is important to the board, she says the service agreement should spell it out.

“If the contract isn’t properly drafted, then there’s not much you can do about it,” Mackey says.

For Part 1 in the series, when Mackey discussed best practices for the tendering process, click here.

For Part 2 of the series, when she looked at how to select your winning bidder, click here.

Date_Published
2018-09-27
Description

Megan Mackey Head Shot

In the second instalment of a three-part series, Toronto condominium and commercial litigator Megan Mackey discusses how to choose a winning bid.

Securing a contractor for a project is one of the most important jobs of a condo corporation’s board, Toronto condominium and commercial litigator Megan Mackey tells AdvocateDaily.com.

In this series, Mackey, a partner with Shibley Righton LLP, shares some of her tips to help the process run smoothly.

Once the bids are in, it’s time to pick a winner, she says, but boards should resist the temptation to automatically go with the lowest price.

“Not all bids are equal and you can get a wide discrepancy in prices, depending on the quality of the work and differences in scope and timing, among other things,” Mackey says. “Simply focusing on the cheapest option is not always going to be the best choice for the corporation.”

To help boards see through the weeds, she recommends engineers or the property management company help review the bids, since they may have a better sense of whether each one is capable of delivering what the corporation wants to achieve.

If one of the bidders sits on the board — which happens more often than you might think, Mackey says — then that person should recuse themselves from the process.

“It’s an obvious conflict and they shouldn’t be voting on the selection of a contractor,” she says.

And Mackey says board members shouldn't be afraid to schedule meetings with bidders before making a final decision.

“It can take some time to get a feel for how involved or hands-on the company’s management will be and what their priorities are,” she explains. “You may find that some have no time or interest in finding long-term clients.”

In addition, Mackey says boards may want to consult with other condo corporations who have worked with the contractors.

“You want to get a sense of the quality of their work and how they might respond if there are any issues during the project, which is something that will always come up,” she says.

“You will also want to look at things like timing and how well they supervised their workers because sometimes you'll find that quality slips when there is less oversight," says Mackey.

“The good ones will stand behind their work,” she says.

Stay tuned for Part 3 of the series, where Mackey will look at service agreements and penalty clauses.

For Part 1 in the series, where she discussed best practices for the tendering process, click here.

Date_Published
2018-08-28
Description

Megan Mackey Head Shot

In the first instalment of a three-part series, Toronto condominium and commercial litigator Megan Mackey discusses what condominium corporations should know about procuring contractor services.

Securing a contractor for a project is one of the most important jobs a condominium corporation’s board has, says Toronto condominium and commercial litigator Megan Mackey.

There are ways to help the process run smoothly, says Mackey, a partner with Shibley Righton LLP.

When it comes to tendering, condo corporations can save themselves trouble by skipping the process altogether for smaller jobs, she says

“Tendering can be a significant amount of work, so if it’s a relatively small contract — and you have a good, trusted contractor that you turn to for those types of jobs — it may be better to hire them. It’s very helpful if you can develop a relationship with someone who’s reliable for small jobs,” Mackey tells AdvocateDaily.com.

“It’s also work for contractors to respond to tenders, so there are a good number who will not want to bother bidding on smaller jobs anyway," she says.

For larger jobs, Mackey says it’s likely that recent changes to the Condominium Act will force boards to put projects worth a certain dollar value out to tender once the law’s final regulations are released.

“We will see what happens with the amendments now that we have a new provincial government,” she adds.

Regardless, Mackey says tenders are a must for the high-dollar renovation and repair projects that inevitably emerge as condo buildings age.

"This helps ensure the condominium gets the work done for a reasonable price and provides some certainty regarding the total cost of the project," she says.

“The board should determine the exact scope of the work up front, which can be labour-intensive,” Mackey says. “Some boards like to start the work and see how it goes, which can lead to problems. That's not an option when tendering, because you need the whole project defined.”

For that reason, she says it’s best in appropriate cases to get an engineer involved in preparing the tender documents, in order to make sure they include all necessary work.

“Otherwise, there’s a risk that the contract will have to be changed or extras become necessary if something was missed,” Mackey says.

She also advises against a scattergun approach to tenders, saying condo boards are better served by a more targeted process.

“Only invite contractors to bid who you will feel comfortable awarding the contract to,” Mackey says. “This may involve a certain amount of pre-vetting and reference-checking beforehand, but if they come in with a great price, you can feel better about handing them the job.

“Many boards work with good property management companies who will have their own list of vetted contractors. That is a good place to start, but at the same time, boards should not feel they are restricted to using only companies on that list,” she adds.

Mackey says tender documents should include details on the board’s preferred timing for the project, including start and finish dates, and invite contractors to make their own availability known in their responding materials.

“It will vary from contractor to contractor, but it’s better to know it all ahead of time. Depending on your priorities, it may be worthwhile to pay more for someone who can do the work faster,” she says.

Stay tuned for Part 2 in the series, where Mackey explains how to choose your winning bid.

Date_Published
2018-07-13
Description

Megan Mackey Head Shot

Approaching mediation with an open mind can improve the chances of settlement, says Toronto condominium and commercial litigator Megan Mackey.

Under the province’s Condominium Act, mediation is mandatory for any dispute about shared facilities between a unit owner and the condominium corporation, except for those occasions when the safety and security of a business or residence are at risk, explains Mackey, a partner with Shibley Righton LLP.

As a result, she admits she's entered the mediation process expecting little in terms of resolution.

“Because it's something the parties are being forced to do, you can sometimes go in thinking there's no chance of settling,” Mackey says. “But I’ve been involved in cases where the parties have surprised me by making a great settlement.

“Now I think mediation can work for any type of dispute, as long as the parties come to it with an open mind and are willing to listen to the other side,” she tells AdvocateDaily.com.

Mackey says the nature of condominiums means that disputes are inclined to involve high emotions.

“These are places where people live together, so there are often many layers to the arguments,” she says. “Sometimes you discover that the real problem driving the dispute is quite different from what you thought was going on.”

For example, Mackey acted in a recent case involving a unit owner in breach of the condo’s no-dog policy.

“The dog was barking incessantly during the day and was frightening people when the unit owner took it out for a walk because she couldn’t control it properly,” she says.

“During mediation, we learned that the dog actually belonged to her adult son who had moved in with her and that she was not all that happy about its presence.”

Mackey says the parties were able to come to an agreement that pleased everyone, including cost waivers and a transition period allowing the son to find a new place for himself and the dog.

In another case, she says a mediation session uncovered the real reason a unit owner had been sending strongly worded and defamatory letters to her neighbours.

“After listening to her, it became clear that she didn’t harbour any ill will to the others. She simply didn’t understand how the messages were coming across,” Mackey says. “The root of the problem was that she didn’t have a key to a storage room and didn’t know how to get one. The mediation helped the parties communicate better and move past their differences.

“Sometimes, when you get to mediation, you find that the parties aren’t necessarily opposed and you can work out a resolution where both sides get what they want without negatively affecting the other,” she adds.



Date_Published
2018-05-31
Description

Megan Mackey Head Shot

The City of Toronto’s move to regulate short-term rentals is good news for condo boards that want to crack down on such use by unit owners, says Toronto condominium and commercial litigator Megan Mackey.

Mackey, a partner with Shibley Righton LLP, says short-term rentals have proved troublesome in a number of condo corporations in the city.

“In downtown buildings, there are situations where there is heavy partying, which causes issues for residents and building managers. There are other problems associated with short-term rentals, too. So I think it’s great the City of Toronto is making changes to limit when dwellings can be rented out on a short-term basis,” she tells AdvocateDaily.com.

“It’s hard to know exactly what will happen if and when the zoning changes take effect, but we think it will certainly have a big impact on condominium boards' efforts to eliminate many of the problems associated with short-term rentals.”

According to a CBC report, municipal zoning changes will limit rentals in the city to the principal residence of homeowners and tenants.

Anyone who wants to list any other units will need to register with the municipality, pay a permit fee and submit to licensing under regulations that define short-term rentals as those lasting less than 28 days.

Mackey says the new rules will even apply to those condos that explicitly spell out in their declarations that short-term rentals are allowed and they don't impose any restrictions themselves.

“A condominium declaration cannot change the zoning,” she explains.

Condos that currently impose more restrictive bans will be able to continue enforcing those rules, despite the new bylaw setting looser standards, Mackey says.

In addition, she says condo corporations may even be able to enforce the bylaw on behalf of the city by enacting rules that would permit it to do so, rather than relying on the municipality’s stretched resources.

“These kinds of rules are allowed under the Condominium Act as long as they promote the safety, security and welfare of owners,” Mackey says.

“I’m not sure how many enforcement officers will be working on this once the bylaw passes, but it probably won’t be enough to stamp out the problems.”

She says it will be a while before the situation is completely clear because the final version of the bylaws may change depending on the result of a series of challenges at the Ontario Municipal Board (OMB).

“There are people who bought units expecting that they would be able to earn a living using short-term rentals and some of them are hoping to be grandfathered and exempt from the proposed zoning bylaw,” says Mackey.

The CBC story says the changes were originally scheduled to take effect on June 1, but that has been pushed back as the OMB gets ready to hear several appeals.



Date_Published
2018-04-23
Description

Megan Mackey Head Shot

Consulting a lawyer before a condo purchase can help buyers avoid nasty shocks after closing, Toronto condominium and commercial litigator Megan Mackey tells AdvocateDaily.com.

While buyers are required to have legal representation on any real estate transaction, Mackey, a partner with Shibley Righton LLP, says it won’t always be enough to successfully navigate a condo purchase.

“The reason you should have all your documents reviewed by a condominium lawyer, rather than just a real estate lawyer, is that condominiums come with all sorts of limitations on what you can and can’t do,” she says. “That’s the nature of living in a condominium community; there have to be rules otherwise you will encounter problems.

“Each purchaser has their own list of requirements they're looking for in a condo, and a lawyer can help make sure that what you are buying meets your specific needs,” Mackey adds.

Some of the most commonly problematic restrictions involve smoking, pets and parking, she says, adding that first-time dwellers may not be aware that corporations can dictate rules on each of those issues to unit owners.

“Someone with an oversized vehicle will have to make sure it meets the parking restrictions of the condominium. For some people, smoking in their home is very important, but it’s not always allowed. It’s the same with pets,” she says. “It’s important that a condominium lawyer looks into it for you.”

When the building in question is brand new and purchased directly from the developer, Mackey says there is another set of issues buyers must be aware of.

“Developers can build income streams for themselves into the condominium when it’s set up, some of which could last for 25 years or indefinitely. While these costs are usually disclosed to purchasers, they will normally be more interested in models and countertops than reviewing the budget statement to see what costs the corporation and individual unit owners will have to pay going forward,” she says.

“A condominium lawyer will be able to review it carefully and identify anything out of the ordinary or outrageous.”

In addition, newly constructed buildings can include a number of price adjustments to pay for things like utility connections or other development fees, resulting in potentially substantial unexpected closing fees.

“These are in addition to land transfer taxes, appearing on statements of adjustments that purchasers are required to pay,” Mackey says.

The good news for buyers is that many of the adjustments are negotiable, but those who haven't consulted with an experienced condominium lawyer may not know to challenge them, she warns.

“If you retain a lawyer, they would hopefully recommend a cap on the development charges,” Mackey says.

In one 2016 case, she acted for a number of buyers improperly charged thousands of dollars at closing. They each paid around $2,500 for the installation of water meters to measure consumption in residential units that were never actually installed.

The unit owners launched lawsuits in small claims court that were heard together in a single trial, where the judge ruled in the residents’ favour.

“They got some of their money back, but it is not a cost-effective way of doing things. There were many purchasers who didn’t need to bring a lawsuit because their lawyer had negotiated a cap on development charges,” Mackey says.

 

Date_Published
2018-03-16
Description

 

A new registry of condominiums across the province will finally paint an accurate picture of condominiums in Ontario, including the identity of all directors and property managers and the number of units, says Toronto condominium and commercial litigator Megan Mackey.

This will provide greater transparency for those seeking information about condominiums, she tells AdvocateDaily.com.

As part of the sweeping changes to the Condominium Act, the Condominium Authority of Ontario is requiring condo corporations to register their buildings. The original December 31, 2017 deadline has been pushed to Feb. 28, reports Condobusiness.

A new government regulation under the Act also requires all condo corporations to file returns on an annual basis and keep this information up to date. The returns are to contain specific key information about the corporation, according to the Condominium Authority of Ontario's (CAO) website.

Smaller, self-managed buildings may have only recently learned about these obligations so the extension will allow for a more complete picture of how many condominiums exist in Ontario, Mackey says.

"The overall process is quite involved when combined with other new requirements under the Act, so condominium corporations have been given more time to register," she says, adding that one of the challenges condominium corporations and management companies face is the sheer volume of work they must undertake to comply with the new regulations.

“Many of the larger management companies may have hundreds of condominium corporations to register, while the smaller buildings may not even know about the requirement” or what to do, and it may take them more time to get up to speed, she says.

To help support its operations, the Condominium Authority will impose an assessment of $1 per unit per month that the corporations will pay. Those that fail to register and pay their first assessment by the end of February may face late charges, Condobusiness notes.

Mackey, a partner with the Toronto office of Shibley Righton LLP, says the new registry will add to the transparency that underlines many of the recent changes aimed at condos.

“As part of the reforms to the Condominium Act, there is a push for all condominium corporations to go digital with electronic records and to make information more accessible to owners,” she says.

“The creation of this database achieves both of those objectives. If there’s a registry of condominiums and a list of their directors, that information will be accessible to the public, and it will also be digital.”

Previously, to get information about a condo board, individuals were required to request a status certificate, pay a $100 fee and wait for the details. The alternative would be to try to contact the building directly and hope that the information provided was accurate.

“The increase in transparency and communication from condominium corporations will certainly be a benefit for owners,” Mackey says.

That, by extension, will also help prevent fraudulent activity, she adds.

"There have been instances in the past when bank loans were granted in the name of the condominium corporation, when, in fact, the money was handed over to a party who was unknown to condominium owners," Mackey says.

 

Date_Published
2018-01-25
Description

Megan Mackey Head Shot

The diverse mix of people she meets and helping condo corporations resolve complex issues are the most satisfying parts of the job for Toronto condominium and commercial litigator Megan Mackey.

“It’s a real people business,” says Mackey, a partner with the Toronto office of Shibley Righton LLP, "and the issues are fascinating."

She has advised condominium corporations, unit owners, and developers, as well as acted for insurers, corporate clients, and individuals in both condominium and commercial lawsuits.

While some lawyers only represent one type of litigant, Mackey sees it as an advantage to represent them all.

“We find it gives us a better appreciation for all the different positions by acting for the various players involved,” she tells AdvocateDaily.com.

Mackey regularly appears before the Superior Court of Justice as well as mediators and arbitrators. She has both trial and appellate experience and has appeared before all levels of court, including the Supreme Court of Canada.

She particularly enjoys the problem-solving aspect of her practice.

“It’s an area of law where having a good lawyer and getting sound legal advice can really have a positive impact on the players — the unit owners, the boards and the managers — that we deal with,” she says. “It’s really satisfying.”

Mackey’s services run the gamut, from helping condo corporations repurpose underused amenities to resolving cases where there is missing or contradictory language in a declaration, to other problems with condominium documents.

She points to a current case, where two units were mislabelled at the land registry office.

“We can go to court and fix that,” she says.

Along with her practice, Mackey writes and speaks on legal issues relating to condominiums. One of her most recent publications is a guide she co-wrote for clients about new regulations under the Protecting Condominium Owners Act, which came into effect in November. The guide was a team effort by the firm's condominium group, which expanded last summer when Mackey and her a number of her colleagues moved their practice to Shibley Righton.

A large condominium group makes sense in a city where recent surveys show one in five people live in a condo, she says.

“It’s a big part of life here,” Mackey says.

The vast majority of condominiums are well-run and well-managed, Mackey says. As a litigator, though, it’s the problems that come to her.

“Sometimes as lawyers we see the worst part of condominium life,” she says. “While most condominiums are great places to live, unfortunately, we frequently encounter condos in trouble — and when things go wrong they can go very wrong.”

These include construction deficiencies, “where the corporation finds themselves embroiled in all sorts of legal disputes with the developer,” Mackey says. “We can guide the boards on how to remedy the problem, the kinds of consultants they should engage and how to fund repairs, including massive unexpected bills.”

Mackey sees cases where things get ugly — and complicated — as when a board or condominium corporation is suing owners or vice versa. In one case she was involved in, a board was taking legal action against unit owners, but then the board changed and the owners who were being sued got on the board, looking to launch their own lawsuits, “when really, everyone should have been focused on fixing the building,” she says.

“There are some corporations where different personalities or issues spark disputes. That’s where we come in and hopefully, with good legal advice and good management, they can turn things around.”

Where possible, Mackey urges clients to resolve the dispute out of court.

“We see the condominium board like a fourth level of government. They should be working towards making their community better and helping it run smoothly, rather than litigating, especially against unit owners.”

But she recognizes that boards have a tough job because they have to enforce the bylaws.

“When the owners don’t want to follow the rules and play nice, the board has no choice, but to take action.”

One of Mackey’s particular areas of focus is disputes where people are suffering noise and vibration issues caused by mechanical and HVAC equipment.

“That’s really frustrating for everyone because it’s nobody’s fault,” Mackey says. “Unit owners in those cases are relentless in pursuing a resolution because it’s their home and they have to live there. Who wants to live in a home that’s vibrating?”

Through these cases, she has gained a great deal of knowledge about acoustical engineering, part of the ongoing learning curve that makes her work so interesting.

“I have picked up a fair amount of information through my work, and we see similar issues in different buildings,” she says.

Along with the noise and vibration matters, Mackey finds oppression cases particularly interesting. She recounts one in which her client was experiencing vibration issues that the board knew about, but was not trying to resolve.

“That case was important in saying how and when must a condominium corporation take positive steps to resolve issues that may only be affecting a limited number of units,” she says. “I was happiest for the client, who was finally vindicated after years of being sidelined and ignored. I felt really good for her.”

While most boards are well-run, sometimes they need guidance, she says.

“It feels good to help point everyone in the right direction.”

 

Date_Published
2017-12-19
Experience
  • Education Committee Member, Canadian Condominium Institute
More About

Megan has been involved in a number of leading cases in the condominium area. In Wu v. Peel Condominium Corporation No. 245, Megan obtained judgment for relief from oppression in favour of a unit owner who endured years of elevator noise and vibration. In Metropolitan Toronto Condominium Corporation No. 897 et al. v. Bhanji et al., Megan successfully argued that a resident cannot justify a breach of a corporation’s rules by claiming that rule enforcement amounts to oppression.


Speaking Engagements

Publications



BIO

Megan Mackey is an experienced litigation lawyer in condominium and commercial matters. She has been involved in a number of precedent-setting condominium cases and is a leader in condominium litigation matters. Megan focuses on achieving results for her clients and excels at customer service.

Megan provides strategic advice and assistance to clients involved with condominium and commercial disputes. She has advised condominium corporations, unit owners, and developers regarding condominium matters. Megan also acts for insurers, corporate clients, and individuals in both condominium and commercial lawsuits.

Megan provides pragmatic advice and counsel in a number of areas:

Enforcement: helping condominium corporations and unit owners to enforce compliance with requirements of the Condominium Act, declarations, bylaws, and rules as well as obligations under shared facilities and reciprocal agreements

Construction deficiency claims: prosecuting and defending construction deficiency claims, advising clients with respect to conciliation and settlement of claims under Tarion’s New Home Warranty Program, and resolving contract disputes

Insurance issues: defending insured claims and providing coverage advice relating to condominium insurance and other matters

Collection matters: enforcing collection of common expenses and other debts through lien enforcement and claims in the Superior Court of Justice

In her practice, Megan regularly appears in the Superior Court of Justice and before mediators and arbitrators. She has both trial and appellate experience and has appeared at all levels of court, including the Supreme Court of Canada.

Megan writes and speaks on legal developments in the condominium area. She has authored a number of articles for leading condominium publications and has been invited to speak to industry groups such as the Association of Condominium Managers of Ontario, the Canadian Condominium Institute, and the real estate section of the Ontario Bar Association.

Megan is a member of the Canadian Condominium Institute, the Association of Condominium Managers of Ontario, The Advocates’ Society, and the Girl Guides of Canada.

Contact Information

T: 416.214.5214
F: 416.214.5414
E: mmackey@shibleyrighton.com

vCard
Education
  • J.D., University of Toronto, 2003
  • B. Sc. (biochemistry, 1st class honours), Simon Fraser University, 1998
Featured