Picture
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Name and Title
John De Vellis
Partner
Partner
Year of Call

2002 (Ontario)

Memberships
  • Canadian Bar Association
Publications
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Date_Published
2020-04-27
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Date_Published
2020-03-27
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John Devellis Headshot

The devil can be in the details when it comes to resolving disputes between condominium neighbours, says Toronto condominium lawyer John De Vellis.

There’s an adage that lists “people, pets and parking” as being the cause of most problems with other residents, and if you want to find a solution, you have to be willing to do a little work, says De Vellis, a partner with Shibley Righton LLP.

He tells AdvocateDaily.com there are rules that govern condominiums to foster a harmonious community. However, that doesn’t mean residents should expect “absolute silence because that’s not how it is in communal living,” De Vellis says.

While he deals with many different issues for clients living in condos, noise complaints are among the most common, he says.

“It's critically important that the complaints be documents with as much detail as possible,” says De Vellis.

“A common answer we get when we respond to the complaint is, ‘It’s only one person, nobody else is complaining.’ Sometimes that’s true, but often there’s a reason for that. It can depend on the configuration of the units, for example. Perhaps nobody else can hear it.”

He says it doesn’t matter if one person complains or five — although the more corroborating evidence, the better.

However, if a resident finds himself alone in the complaint, the best bet to resolve the issue is to document the incidents in detail and find witnesses whenever possible, De Vellis says.

In many cases — except for townhouse complexes — a condominium will have a concierge on duty, which offers an excellent opportunity to put the complaint on record by someone who can corroborate the incident, he says.

De Vellis says it’s important to encourage the concierge to include as much detail in their report as possible.

“It’s sometimes frustrating to read the concierge report because of the lack of specifics,” he says. “They will say they heard a noise, for example, but they don’t say from what distance, or how loud it was. I often advise my clients to get the concierge to write more specific, descriptive reports.”

De Vellis says questions can arise with vague reports.

“If the problem is not resolved, and you have to take some kind of legal action, the report from the concierge and the person complaining are the only records I have,” he says.

If it’s not detailed, those involved may not exactly remember what happened during a hearing that is months — or years — down the line, De Vellis says.

“I’m not talking about writing a novel, just something a little bit more descriptive. A few more sentences go a long way.”

He encourages people to be “really granular” with the details.

“Make it as detailed as possible because the more you have, the more credible it’s going to be,” De Vellis says. “Note the time, the actual words you hear, the programs they’re watching on TV, the music that was playing at the time. That kind of detail is usually very helpful.”

He says you can try recording what you hear, but be aware that the video- and tape-recording capabilities on some smartphones may not be sophisticated enough to pick up everything.

“We try it all the time, and the results are often underwhelming,” De Vellis says, adding that when cases are in dispute, they may have a sound test done, although it can be expensive.

“It’s also a good idea to involve the corporation’s lawyer early in the process,” he says.

“The bottom line is that the condo corporation has an obligation to enforce the rules,” says De Vellis. “But if legal proceedings are necessary, the judges will expect the corporation to present a thorough case that the noise is excessive.”

 


Date_Published
2019-10-22
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Employees who believe they have been constructively dismissed take a risk when they walk away from their job, says Toronto labour and employment lawyer John De Vellis.

In a recent Nova Scotia case, the province’s appeal court ruled against a newspaper account executive who quit his new position, claiming the revised compensation model would cut his income. The decision overturned an award of more than $100,000 made to the man by a trial judge who found he had been constructively dismissed.

“Constructive dismissal is a very difficult and unclear area of the law, and I always tell people that they’ve got to tread very carefully,” says De Vellis, a partner with Shibley Righton LLP. “Unless the circumstances are extremely clear, you’re taking a big risk as an employee by walking away because you could end up with nothing if the court finds you weren’t constructively dismissed.”

He tells AdvocateDaily.com that plaintiffs bear the responsibility of proving they were constructively dismissed, which is the technical term when an employee unilaterally alters a fundamental aspect of the conditions of employment or makes continued employment intolerable. That can occur either as a result of the unilateral actions of the employer, or through the combination of a series of smaller issues in the workplace.

If an employee contacts him before quitting, De Vellis says he typically advises them to hold out and keep their legal options open.

“If you’re being sexually harassed, or the workplace has become completely poisoned or dangerous, then you’re under no obligation to stay,” he says. “But if you are able to, it’s probably less risky to stay and try working something out with the employer.”

Instead of departing, De Vellis says employees can register their disapproval with new terms of employment and sue their employer for damages if necessary.

In the Nova Scotia case, the plaintiff employee — a long-serving account executive — ultimately paid for his decision to quit after initially accepting a new position as a business development specialist. After studying sales forecasts, he believed he was being set up for a reduced income, and left the job, claiming he had been constructively dismissed.

While a trial judge accepted his position and awarded the man damages for a 16-month notice period, the appeal court reversed that judgment.

“Rather than wait and see or stay under protest in order to mitigate his losses, [the employee] quit and sued for wrongful dismissal,” the appeal court ruling reads.

“The duty to mitigate your damages applies whether you are terminated or constructively dismissed,” De Vellis says.

 

Date_Published
2019-09-10
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Just because Ontario's highest court has ruled that the tort of harassment does not exist, doesn’t mean there aren’t options available to wronged parties, says Toronto employment lawyer John De Vellis.

A three-judge panel of the Ontario Court of Appeal (OCA) found there was “no compelling reason to recognize a new tort of harassment,” overturning a trial judge’s decision to recognize it as part of a $140,000 award to a former RCMP officer.

De Vellis, partner with Shibley Righton LLP, says the court found there are already similar torts in place, such as those focusing on sexual harassment or the intentional infliction of mental suffering (IIMS).

“The employee in this case was asking for recognition of a new tort of harassment, which would have some of the same elements as IIMS, but a little bit lower of a test,” he tells AdvocateDaily.com.

Court documents state, “... the test for IIMS is met where the plaintiff establishes conduct that is (1) flagrant and outrageous, (2) calculated to produce harm, and which (3) results in visible and provable illness.”

To meet the standard for IIMS, De Vellis says people also have to prove the other party intended to cause suffering.

“The difference between IIMS and harassment is that you don’t have to necessarily prove an illness for harassment, and it doesn’t have to be intentional,” he says.

The OCA judgment states that when the lower court made its decision, the “analysis concerning the existence of the tort is quite brief in the context of an otherwise lengthy decision — a mere eight paragraphs of her 896-paragraph judgment.”

By contrast, the appeal court judgment explains in-depth not only why the tort is unjustified in this case, but also how updates to Ontario law should be made.

“Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically … significant change may best be left to the legislature,” court documents state.

“The court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work,” the judgment reads.

“Courts are extremely reluctant to recognize new torts,” says De Vellis.

“When a legislature passes a new law, they have committees that have studied the legal or economic consequences and implications of the legislation, while a court is not really in a position to determine that.”

He says there have been a few torts developed in recent years, like the one that deals with the invasion of privacy.

De Vellis believes the OCA has “left the door open” for the tort of harassment to be introduced in the future, noting that the judgment states, “... while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that [the plaintiff] has presented no compelling reason to recognize a new tort of harassment in this case.”

“I don’t think we’ve heard the last on this issue,” he says. “I think the law will eventually evolve in some way to recognize a form of harassment tort, especially with the societal changes we are seeing.”

Date_Published
2019-07-17
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Condo corporations should err on the side of caution when it comes to limitation periods in disputes with service providers, says Toronto condominium lawyer John De Vellis.

De Vellis, a partner with Shibley Righton LLP, says a recent Ontario Court of Appeal (OCA) case revolving around a couple’s problems with their $60,000 HVAC system should serve as a warning to condos that hesitate to sue for fear it may interfere with a professional relationship.

After entering a service contract with the company that installed the system in their house, the plaintiffs in the case eventually claimed that the defendants were responsible for the issues, but a motion judge dismissed their claim summarily after finding they waited too long to sue.

In its judgment, a panel of the province’s top court ruled by a 2-1 majority to uphold the motion judge’s decision, rejecting the plaintiffs’ arguments that the limitations period should have been extended further because they were still relying on the “superior knowledge” of the defendants.

“The result seems a bit unfair to the plaintiffs because they were kind of lulled into a false sense of security that the defendants would deal with the problem,” De Vellis tells AdvocateDaily.com. “Condos have these kinds of issues all the time with contractors or developers, and the message to them is that they need to be really careful with limitation periods because the law in this area is very convoluted.

“You can’t necessarily rely on the fact that people are still doing work for you, and if there’s any doubt at all, they should err on the side of caution and start a claim,” he adds.

According to the OCA decision, the couple had problems with the HVAC system almost immediately after its installation in 2006. After complaining to the defendant installer, it convinced the plaintiffs to enter a two-year maintenance program starting in June 2007, but the problems continued.

The maintenance contract expired in May 2009, but in late 2010, the plaintiffs received information from the system’s manufacturer suggesting the defendants had failed to install other customers’ products properly. They finally launched their claim in February 2012, just days after an environmental report pinpointed faulty HVAC installation as a possible reason for mould growth in their home.

A motion judge accepted that the limitation clock was stopped during the term of the maintenance contract under section 5(1)(a)(iv) of the Limitations Act because the plaintiffs were “relying on the superior knowledge and expertise” of the defendants during that time, but still found the claim statute-barred after finding the plaintiffs should have been aware of their claim more than two years before February 2012.

A majority of the OCA panel agreed with that assessment, though dissenting Justice Kathryn Feldman would have sided with the plaintiffs after noting inconsistencies in the motion judge’s decision that suggested the plaintiffs were still seeking help from the defendants as late as the fall of 2010.

According to De Vellis, an unfortunate side effect of the decision is that it incentivizes parties to launch a lawsuit without having all the information they may need to prosecute it.

“You don’t need to know for certain, just that you have a ‘reasonable basis’ for a claim,” he says. “I’m not sure many laypeople would understand the distinction, but what it means is that you may have to start a claim before you have enough evidence.”

Still, De Vellis says there are ways for prospective plaintiffs to protect their legal rights without entering full-blown litigation immediately.

For example, he says when a claim is filed and issued by the court, the plaintiff still has six months to serve the defendant. Even after that date, a plaintiff may be able to obtain an extension of the time to serve if a judge agrees it is necessary.

In some cases, De Vellis says the existence of a claim does not prevent continued co-operation between the parties, who may agree to hold off on proceeding any further while they attempt to resolve their differences.

“The costs of preparing and filing a claim are relatively low,” he says. “The action can remain outstanding, but you have preserved your limitation period.”

 

Date_Published
2019-05-10
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In rejecting a ride-sharing company’s demand that a case against it be heard in the Netherlands at the expense of the plaintiffs, the Ontario Court of Appeal (OCA) has drawn a line on an “outrageous” clause in the company's contract with drivers, says Toronto labour and employment lawyer John De Vellis.

The OCA gave the plaintiffs the green light to proceed in the Ontario courts with their case against the company, which argues that they are employees, not independent contractors, and entitled to benefits and vacation days under the Employment Standards Act.

The company pushed back against the class action by arguing their contract, which all drivers must sign, expressly states that any conflicts which cannot be resolved within the company must go to third-party arbitration in the Netherlands, which De Vellis, partner with Shibley Righton LLP, says would be an onerous expense for the complainants.

He says the company "argues the arbitration clause applies even if the dispute is over whether the drivers are actually employees entitled to protection under Ontario law. The OCA found the arbitration clause to be invalid as it amounted to an impermissible contracting out of the Employment Standards Act. But the OCA went further and found that independent of the conclusion regarding the ESA, the clause is invalid because it is unconscionable.

“The court called the arbitration clause unconscionable, and I’d call it outrageous,” De Vellis tells AdvocateDaily.com. “These are two parties of unequal bargaining power.”

He says whether or not the plaintiffs are employees has not been decided and won’t be ruled on any time soon, but the court has levelled the playing field between drivers and the company by tossing out the arbitration clause.

As the court notes, there’s a series of nonrefundable fees to engage in mediation or arbitration with the ride-sharing giant, and they escalate, requiring cash deposits of US$500,000 or more depending on the value of the dispute, including a $14,500 fee for the arbitration process itself.

Given that a ride-sharing food driver makes between Cdn$20,000 to $30,000 a year, it’s completely disproportionate, says De Vellis, who is not involved in the case and comments generally.

The plaintiffs were in a catch-22 in that they couldn’t afford the arbitration process, he says. It also thwarted the plaintiffs’ right to have the dispute adjudicated through the Employment Standards Act.

“Even without going to the Netherlands, the fee was a deterrent,” De Vellis says. “A valid contract is between two equal parties but here, one party clearly has unequal bargaining power, and there was no independent legal advice.”

The court was succinct in its assessment: “I believe that it can be safely concluded that [the company] chose this Arbitration Clause in order to favour itself and thus take advantage of its drivers, who are clearly vulnerable to the market strength of [the company]. It is a reasonable inference that [it] did so knowingly and intentionally. Indeed, [the company] appears to admit as much, at least on the point of favouring itself when drafting the Arbitration Clause.”

Date_Published
2019-04-22
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As the first few cases trickle out of the new Condominium Authority Tribunal (CAT), Toronto condominium lawyer John De Vellis says the decisions released so far largely follow existing case law.

“Many of the cases are following the same jurisprudence,” says De Vellis, a partner with Shibley Righton LLP. “For the most part, none of the tests has changed. It’s just that you have a specialized tribunal handling matters.”

The tribunal was set up as an online-only body, devoted exclusively to condo-related disputes in Ontario. The hope, says De Vellis, is that specialized adjudicators ruling on written submission will allow cases to settle more quickly and inexpensively than going through the courts.

So far, CAT’s jurisdiction extends only as far as record disputes covered by s. 55 of the Condominium Act, but will likely expand as time goes on, he tells AdvocateDaily.com.

The stepped process begins with a $25 access fee that allows the parties to try to settle the issues themselves. The next stage, which costs $50, escalates the matter to mediation before a final adjudication stage by a tribunal member, which costs $125.

Below, De Vellis picks out some of the highlights of the cases decided so far:

Legal invoices case

This decision involved an owner’s request for unredacted copies of the invoices from the condo corporation’s lawyer.

De Vellis says the decision highlights a “kind of disconnect between the disclosure exemptions in the Condominium Act and the common law concept of solicitor-client privilege.

"The Act states that any records that are relating to 'actual or contemplated litigation' are exempt from the general disclosure right," he explains. "But solicitor-client privilege is much broader than that and applies to any advice provided by a lawyer to his or her client.”

De Vellis says the privilege is jealously guarded under the common law, which may conflict with the narrower rules laid out in the Act.

“The tribunal used a broad definition of actual or pending litigation and denied the owner’s request on that basis, but the general question of whether solicitor-client privilege alone is sufficient to deny a disclosure request remains unanswered," he says.

"This issue will likely be litigated further at some point,” De Vellis adds.

Excessive questioning

This case involved a unit owner’s request for a number of records related to the condo’s reserve fund and a series of historic repairs. Unsatisfied by the level of reporting received from the condo’s general manager, the unit owner followed up with a series of questions to management and ultimately brought an application to the tribunal for non-disclosure.

However, the adjudicator found the condo had turned over all the records it was required to and declined to make an award of costs.

“You often get cases where owners submit a list of questions to property managers after receiving records,” De Vellis says. “Management is typically happy to answer them as part of their job, but this decision is in line with my feeling that it should be a matter of customer service, rather than a matter of legislative requirement.

“If managers were required to answer all the questions that come from owners, they would be drowning in correspondence and have no time to get anything else done,” he adds.

Unit owner list

Another case of note concerned a unit owner whose request for a list of the condo’s owners and mortgagees was initially granted for a fee of $336, calculated at a rate of $63 per hour for the labour, plus $0.26 per photocopy.

An adjudicator found the charged fee was unreasonable, cutting the hourly rate in half to $31.50 and noting that the photocopy price exceeded the $0.20 limit set in regulations under the Condominium Act. The unit owner was also granted costs of $125, plus a penalty of $1,000 for the condo corporation’s lack of “early and active participation.”

“This one was interesting because it used to be that requests for lists of unit owners would only be granted if the owner required it for an owners' meeting,” De Vellis says. “Under the new legislation, that information has been classified as a core record that must be produced.”

Date_Published
2018-11-19
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Date_Published
2018-10-01
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Date_Published
2018-09-01
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It's up to off-site condominium owners to provide up-to-date contact information in case of emergencies and to receive compliance notices, says Toronto condo lawyer John De Vellis.

"There are two big problems with off-site owners," says De Vellis, a partner with Shibley Righton LLP. "One is that it's often difficult to get a quorum for an annual general meeting because the owners who don’t live in the building don't bother showing up."

The bigger problem, he tells AdovcateDaily.com, is when off-site owners don’t leave current contact information, it makes dealing with compliance issues very difficult.

"The corporation is supposed to keep owners apprised because if they don't and try to get compensation for legal costs later, the owner may argue they were not aware of the issue and could have dealt with it had they known."

Under the Condominium Act, for such things as condo owner meetings, owners must give consent to being contacted by email by the condo corporation. But compliance notices can be sent by email without formal consent from the owner, De Vellis explains.

"If you have someone's email address — even though it’s not technically authorized electronic communication for official Condominium Act notices — you can send the message from a compliance perspective," he says.

If an owner wasn’t advised, they could claim they would have dealt with the compliance issue if they had known about it, he says.

"So, we always advise our condominium clients to inform the owners right away," De Vellis says.

"Owners are required under the Ontario Condominium Act to provide an address for service," he says. "If they don't, then that's on them. Having said that, it’s always better to be able to contact the owner because they can often deal with things easier, such as a problem tenant."

If the owner is not capable of immediately responding, then they should appoint someone with a temporary power of attorney to deal with any emergencies or compliance concerns, he says.

A growing issue is tenants subletting condos as short-term vacation properties, often without the knowledge of the unit owner. De Vellis says most condos have rules preventing short-term rentals, and the condo declaration typically specifies that units are for single-family use.

"There's a cottage industry where people don't put up the capital to buy the unit, they just sign a long-term lease and then sub-let the unit on a short-term basis," he says. "And they turn a profit while the owner is often not even aware of it because they live in another jurisdiction.

"That's a big problem so it's important the owner leaves contact information so condo officials can inform them," De Vellis says. "If they don't, then the condo corporation may have no choice but to start legal proceedings, which ends up costing the owner a significant amount of money because the declaration normally makes the owner liable to the corporation for any costs incurred as a result of a breach."

 

Date_Published
2018-08-01
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Some condominium corporations are struggling to address the growing popularity of short-term rentals, Toronto condominium lawyers Armand Conant and John De Vellis write in The Lawyer’s Daily.

“They create a significant problem for condominium corporations, from increased wear and tear on common elements, increased security costs, disruption and general anxiety as residents complain that what they thought was their home has been turned into a hotel,” say Conant, head of the condominium law group with Shibley Righton LLP, and De Vellis, who also sits on the firm’s condo group.

They say it’s often a tenant — not the owner — who offers the unit for rent, adding that a veritable “cottage industry has blossomed” where people rent from unit owners on a long-term basis and then lease to others for short-term stays.

Sometimes they are featured on specialty websites but in other cases, the tenant has created their own online portal where they list "a number of units at various locations, all available for rent on a hotel-like basis," Conant and De Vellis explain. "Often the owner has no idea what is happening to their unit."

Tenants who sublet may “run afoul” of the Residential Tenancies Act, 2006, which states that a rental unit may only be sublet with the consent of the landlord, Conant and De Vellis say. It also states that they cannot charge more than they pay in rent to the owner.

“For condominium unit owners, these unlawful sublets are not just a nuisance, they may create a big financial headache,” they write.

“That’s because most condominium corporations have indemnity clauses in their declarations that make the owner responsible for all costs incurred by the condominium corporation, including legal costs, in the event the owner or the owner’s tenants breaches the condominium corporation’s declaration, bylaws or rules.”

Most condominium declarations stipulate that units can only be used as private, single-family residences.

Conant and De Vellis say the courts have defined a “single family” as a “social unit consisting of parent(s) and their children, whether natural or adopted, and includes other relatives living with the primary group.”

They cite a 2016 Ottawa case, where the court ruled that leasing a unit on a repeated, short-term basis was a violation of the single-family-use restriction in the declaration.

The court said, “’Single-family use’ cannot be interpreted … with units being offered to complete strangers on the internet, on a repeated basis, for durations as short as a single night … [and] is incompatible with concepts as ‘check in’ and ‘check out’ times, ‘cancellation policies,’ ‘security deposits,’ ‘cleaning fees,’ instructions on what to do with dirty towels/sheets and it does not apply to credit card payments.”

Not only were these cited in the case, Conant and De Vellis write, they’re also typical of how many units are advertised online.

They say many corporations have passed rules that set a minimum rental period for units and the courts have upheld minimums as lengthy as four months.

Conant and De Vellis also write that the Condominium Act, 1998 “requires that an owner of a leased unit notify the condominium when a unit is leased, provide the name of the tenant, a summary of the lease, and provide the tenant with a copy of the condominium’s declaration, bylaws and rules, none of which is followed in a typical short-term-lease scenario.”

Some declarations, particularly in buildings close to entertainment centres, allow short-term rentals, they say.

“This prevents the condominium corporation’s owner-elected board from passing rules providing minimum rental periods or otherwise prohibiting short-term rentals.”

In a recent case, the court denied a corporation’s attempt to have the provision declared invalid.

“The condominium had argued that the declaration had impermissibly granted a right, which would amount to a positive covenant, but the court disagreed, stating that the declaration simply defined the scope of the restrictions on the use of the property by making clear that the short-term leasing are not restricted uses,” write Conant and De Vellis.

“The bottom line for owners is they must be aware of what they are buying. If owners are expecting to live in a community of long-term residents, they should be sure that the declaration does not prevent the board from regulating short-term rentals. On the other hand, if there are restrictions against short-term rentals, owners need to be vigilant in not allowing their units to be used in that manner.”

 

Date_Published
2018-05-16
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Businesses must reassess their relationships with independent contractors after recent changes to Ontario’s workplace laws, Toronto labour and employment lawyer John De Vellis tells AdvocateDaily.com.

Following the passage of Bill 148, the Fair Workplaces, Better Jobs Act, 2017, Ontario employers must prove their independent contractors are not employees subject to the province’s Employment Standards Act (ESA).

“None of the definitions have changed, but the onus has shifted to the employer to show they haven’t misclassified an employee as an independent contractor,” says De Vellis, a partner with Shibley Righton LLP.

“As a result, businesses are going to have to evaluate their relationships with the people who work for them.”

The province has also promised to hire up to 175 more employment standards inspectors to enforce the new law, which also boosted the minimum wage and requires part-time, temporary, casual and seasonal employees to be paid the same rate as full-time employees when performing the same work.

De Vellis says the changes have also raised the stakes for businesses who see their independent contractors’ status challenged. If an individual is adjudged to have been misclassified, the company may face significant payments to the employee and the Canada Revenue Agency (CRA).

Businesses that deemed a worker an independent contractor will not have withheld any taxes, or paid employment insurance and Canada Pension Plan contributions as required, he explains.

In addition, a worker who should have been classified as an employee will become entitled to overtime, severance and vacation pay, as well as other protections afforded by the ESA. Unlike contractors, employees must also be paid minimum wage, but De Vellis says Bill 148’s pay parity provisions could mean employers owe even more if the misclassified worker did the same work as full-time employees earning higher levels of pay.

“There are some exceptions, such as when pay scales are determined on the basis of seniority, merit or the quantity of production, but if the only difference between two people is that one’s a contract employee and the other is a full-time employee, you may have some trouble,” De Vellis says.

He says the Ministry of Labour and the CRA place little value on the contract between the parties when determining whether someone is an independent contractor or employee.

“The fact that the person is called an independent contractor in the agreement doesn’t mean they’re not an employee. It’s the substance of the relationship that governs,” De Vellis says.

Instead, government agencies use the same, long-standing four-part test to make the determination — one De Vellis says businesses should apply themselves as part of internal assessments to minimize the chances of misclassification.

The first factor concerns the level of control the company has over the working conditions of its contractor, including the hours and methods of work. The second surrounds the tools of the craft and which party provides them.

Thirdly, who bears the financial risk of loss?

“For example, does the person bear fixed monthly costs that have to be paid even if no work is being done?” De Vellis says.

“And finally, who has the opportunity for profit?”

Date_Published
2018-03-23
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When it comes to making changes in condominiums, boards don’t always have to seek input from unit owners, Toronto condo lawyer John De Vellis tells Law Times.

Usually, substantive changes — ones that represent more than 10 per cent of the annual budget — require a vote with two-thirds support, reports the online legal publication.

But boards can make some modifications above that limit without notifying the owners. For example, the board can authorize repair and maintenance projects that are required by law or for the safety and security of those using the property, says the article.

Similarly, utilities, management and maintenance contracts often represent more than 10 per cent of the budget but don’t require approval for their renewal, says De Vellis, a partner with Shibley Righton LLP.

In a recent case, De Vellis, along with Stefan Rosenbaum, acted for a condo corporation that entered into a bulk cable television contract with a new provider for all the units, adding internet services to the common expenses.

The plaintiffs argued that the corporation didn’t have jurisdiction to enter into the contract. They maintained the new contract, which didn't include an opt-out option for unit owners, represented a substantial change and was not valid without the approval of the owners, reports Law Times.

De Vellis argued that adding the internet service didn’t fall within the parameters that required the approval of owners “because it was simply a renewal of an existing contract with an additional service that didn’t represent a substantial change,” says the article.

“Now there’s case law for that. It also clarifies the jurisdiction issue,” says De Vellis.

The court agreed with De Vellis, saying the declaration listed “cable” as a common expense like utilities. As a result, the cost of cable shouldn’t be included in the calculation of the change, which put the addition of the internet below the threshold that requires the involvement of the owners.

The judge said the condo corporation “acted within its jurisdiction” by entering into an agreement with the service provider “and it was not required to provide notice to unit owners or to secure the approval of 66 2/3 of unit owners before doing so.”

De Vellis says the case provides clarity since previous case law didn’t explicitly list cable and internet as equivalent to utilities.

 

 

 

Date_Published
2018-02-13
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With urban land becoming increasingly scarce, many condominium boards will be asked for access to their land when their neighbours want to build or renovate, Toronto condo lawyer John De Vellis tells CondoBusiness.

“The condominium may be asked for permission to allow a crane to swing over its property, scaffolding to be erected on its property, for its property to be used to shore up part of the excavation on the neighbouring property, or for construction materials to be stored on its property,” writes De Vellis, a partner with Shibley Righton LLP.

“But these are just a few examples. The possibilities are endless and the disruption to the condominium’s residents can vary from minor to quite significant,” he tells the online publication.

Just because the developer wants access to the property, doesn’t mean he has a right to it, says De Vellis.

“In some jurisdictions, the law allows neighbouring property owners to access adjoining properties for repairs or renovations as long as certain conditions are met. In New York State, for example, the law allows a property owner to apply for a licence to effect repairs if the adjoining owner refuses to consent.

"In a case that gained some notoriety in New York City, the New York Public library went to court to get a licence after the board of a condominium adjacent to the library’s midtown branch refused to grant access to scaffolding and other construction equipment required for a $200-million renovation to the branch. The condo board has apparently asked for a licence fee of $450,000 or $15,000 per month during the planned 30-month renovation.”

An article in the New York Daily News says the project will proceed, without a fee, following a court decision, reports CondoBusiness.

But there’s no such law in Ontario, writes De Vellis.

“When developers require access, they have to rely on either an easement in their favour, municipal right of access bylaws or an agreement with the condominium corporation.

“The first question in these circumstances is whether there are any easements registered on title that require the condominium to provide access for the purposes of construction. In phased developments, developers normally ensure that the early phases have easements on title requiring the condominium corporation to provide access for construction of subsequent phases.

"Where there is an easement, the condominium may be required to grant access to the developer, but it’s a good idea to check with the condominium’s lawyer to see what, if any, conditions may be placed on the right of access.”

Without an easement, the legal right of access is limited, says De Vellis.

“In some municipalities, such as the City of Toronto, a property owner can obtain a permit from the city in order to gain access to a neighbour’s property if such access is necessary in order to make repairs or alterations to any building. New construction or the total replacement of an existing building, however, is not included in the right of access bylaw,” he says.

“Often the developer and the condominium will enter into an agreement granting the developer a right of access to the condominium’s property in return for certain concessions by the developer.”

De Vellis says money is often at the heart of such agreements. He says the amount of compensation usually depends on the degree of disruption to the condominium property, the amount of time access is required, and even the nature of the development being built.

“It’s not unusual to see licensing fees paid to condo corporations of $20,000 or $30,000 or more. Often the access fee is negotiated as a monthly fee and payable as long as the encroachment exists on the condominium’s property,” he writes.

“But financial compensation is just the start. The access agreement is a good opportunity for the condominium to negotiate other concessions that may reduce the disruption or inconvenience that residents may face from the construction,” he says.

“For example, an access agreement can specify when construction can take place, and limit the times the developer can access the condominium’s property. The developer may also be asked to agree to conditions to minimize debris or dirt and even to pay for window cleaning.

"In one case, a developer agreed to erect a barrier to protect an art installation from dust and debris and agreed to have the art installation cleaned once construction was completed.”

De Vellis says other concessions may be “less tangible but nonetheless provide value to residents. For example, a developer may agree to implement a communications plan to keep residents informed of construction activity, and may be asked to curtail activity during certain religious holidays.”

He says the developer should also agree to indemnify the condominium corporation for any property damage or liability for personal injury caused by the project.

Condo corporations should also ensure the developer has adequate insurance for the project, he says, adding that the corporation and its owners should be listed as additional insureds. That way, the corporation can make a claim directly if something goes wrong, says De Vellis.

They should also have their own engineers review the construction plans.

“Often the developer will agree to compensate the condo corporation for these professional costs, as well as any legal fees incurred in negotiating the agreement with the developer,” he writes.

“So if a condo corporation is faced with construction next door, it should just remember the timeless advice from negotiating guru Chester Karrass: ‘You don’t get what you deserve, you get what you negotiate,’” says De Vellis.

 

Date_Published
2018-01-26
Description

John de Vellis head shot

Condominium corporations should start factoring increased labour costs into their budgets as amendments to Ontario's Employment Standards Act come into effect in the new year, says Toronto labour and employment lawyer John De Vellis.

Proposed changes to the Act include equal pay for part-timers who do the same work as full-timers with the same seniority; on-call provisions for employees; longer leaves for various purposes; and a higher minimum wage, says De Vellis, a partner with Shibley Righton LLP.

Those higher labour costs should now be in the minds of those who pen annual budgets for condos, he tells AdvocateDaily.com.

Bill 148, the Fair Workplaces, Better Jobs Act, which contains amendments to the Employment Standards Act, received royal assent on Nov. 27. Parts of the bill are already in force but most provisions will take effect on Jan. 1 and April 1.

De Vellis says condominium corporations must budget for the proposed minimum wage increases — $14 an hour on Jan. 1, 2018, and $15 an hour on Jan. 1, 2019, followed by inflation adjustments.

There's also an Equal Pay for Equal Work provision, which gives part-time, casual, seasonal and temporary workers the same pay as full-time employees when they're doing substantially the same work — unless the difference in pay is due to a seniority or merit system, or one based on something other than gender or employment status. The equal-pay provisions come into force on April 1.

Beginning on Jan. 1, 2019, employees who are on-call may have to be paid a minimum of three hours, even if they're not called to work.

Other amendments include 10 days of emergency leave, of which two are paid, and three weeks of paid vacation for employees with five or more years of service. Parental leave would increase from 35 to 61 weeks for those taking pregnancy leave and from 37 to 63 weeks for those who don't.

The new provisions include up to 15 weeks of unpaid leave to receive medical or legal aid if the employee, or their child, experiences domestic or sexual violence or the threat of domestic or sexual violence. Family medical leave is also being extended to care for a dying family member — from eight weeks in a 26-week period to 27 weeks in a 52-week period.

As these increased costs are passed on to owners, it's almost certain that fees will increase, although the impact remains to be seen, De Vellis says.

The changes could be difficult for condo corporations to budget for, he says, because there are "so many moving parts. They will have to look at each item separately."

De Vellis suggests it may be wise to establish a contingency fund to cover any unforeseen or unexpected labour cost increases or “they will have to take a hard look at their employment situation and figure out what’s going to increase and then talk to their lawyers as they figure out what to do."

He says the legislation will be implemented in phases so the full financial impact won't be completely felt in the short term.

"Each employer's situation will be different depending on how many staff are below minimum wage, whether they have part-time and full-time staff who are paid differently, and whether they have people on call,” De Vellis says.

"Also, staff who are currently paid more than minimum wage may expect a bump-up once the minimum wage is increased," he says. "So there may be a ripple effect across the pay spectrum."

De Vellis says corporations that outsource property management will also have to consider higher fees as costs will sooner or later be passed on to them.

"Those costs are set by contract. It may be that in a competitive market, providers will hold the line for a while, but eventually, it's likely that higher labour costs will flow through," he says.

Date_Published
2017-12-07
Description

It's a common scenario in condominium corporations: during a dispute, anonymous email accounts or Facebook pages begin spreading rumours and making false accusations against board members, management or staff.

An Ottawa condo corporation facing this scenario managed to obtain a court order directing the email provider to identify the author of anonymous messages.

In this case, an anonymous email was sent to board members and unit owners after the resignation of the corporation's superintendent. The sender alleged that the board allowed a contractor to harass the superintendent because members of the board were receiving illegal kickbacks from the contractor. Cease and desist letters were sent to the anonymous email account but the messages continued.

The condo corporation wanted to sue the sender for defamation but didn’t know who was sending the emails. The group was prepared to go to court to find out the identity of the sender.

There is a type of court order, called a Norwich order, which allows a party to obtain information needed to bring a lawsuit. Courts, however, are reluctant to grant them because they can potentially impede the rights of innocent third parties. In order to obtain a Norwich order, the applicant must meet a rigid four-part test.

The condominium corporation was granted a Norwich order requiring the email provider to disclose information about the identity of, and contact information for, the individual sending the allegedly defamatory emails.

The court granted the order because the corporation met all four parts of the test:

  1. it was able to demonstrate that it had a potentially viable claim for defamation;
  2. the email provider was not completely unrelated — it was implicated in the defamation as the emails were sent over its servers (although there was no suggestion of a claim for damages against the company);
  3. the provider was the only practical source for the information; and
  4. the costs to the provider would be minimal (although the condominium corporation had agreed to reimburse any such costs).

The judge also found that the intended defamation action was a reasonable step by the condo group "to ensure that its board members and employees are not subject to statements which I have found are capable of being found to be defamatory."

In the circumstances, the sender of the email could not have an expectation of privacy in using the internet for publishing defamatory emails.

The decision is welcome news for condominium corporations and a helpful reminder to all of us that nothing is anonymous when it comes to electronic communication.

Date_Published
2017-09-22
Publication
Description

John de Vellis head shotThe applicants are owners of units at Metropolitan Condominium Corporation No. 949 ("MTCC 949") which is a two-tower condominium complex in Toronto. They are both lawyers.


Since its construction in the 1990s, MTCC 949 has contracted for television services pursuant to a bulk services contract with Rogers, the costs of which were charged to unit owners as a common expense. In June 2016 MTCC entered into a bulk services agreement with a new service provider, Frontline, to provide bundled television and internet services (the "Frontline Agreement").

Date_Published
2017-09-20
Description

Shibley Righton's John De Vellis appeared on CondoVoice's podcast to talk about a recent case concerning harassment in condo buildings.

To listen to the podcase please click here.

Date_Published
2017-08-23
Description

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

To read the complete article please click here.

Date_Published
2017-08-23
Experience
More About
BIO

John’s multi-faceted practice includes condominium law, commercial litigation, and employment law. His experience includes everything from counselling investors in major fraud cases to serving clients in wrongful-dismissal actions.

As a member of Shibley Righton LLP's  condominium law group, John acts for condominium corporations throughout south and southwestern Ontario on all aspects of condominium law including compliance and governance issues, general litigation including oppression applications, employment and human rights disputes, construction deficiency issues, arbitration of shared facilities disputes, and commercial matters such as contract review and drafting and general governance issues. 

John is a frequent contributor to condo industry publications and has spoken and taught on a number of condo law topics. He is a member of the Canadian Condominium Institute (Toronto) and sits on its Education Committee. 

John also has a breadth of experience in employment law litigation, having litigated complex wrongful dismissal matters and issues of sexual harassment and discrimination. 

John has also been involved in a number of complex commercial litigation and professional negligence matters.  

John has appeared before all levels of court in Ontario including the Ontario Court of Justice, Superior Court, Divisional Court, and Court of Appeal, as well as a number of administrative tribunals including the Ontario Energy Board and Licence Appeal Tribunal.

John is a lawyer with a strong attachment to the community. When in law school, he spent eight months working at a legal aid clinic in Toronto’s Parkdale community. He has volunteered his time a Long-Term Disability and Employment Law Clinic run by Wellspring, a not-for-profit organization that helps cancer patients and Pro Bono Law Ontario, which provides legal counsel to those who can’t afford representation. In addition, for eight years he sat on the board of a community-run daycare centre, serving as its Vice-Chair and Chair of the Personnel Committee.

He has also been a guest judge for students at Osgoode Hall Law School and Sheridan College and a guest instructor at Humber College and a speaker at the Osgoode Professional Development programme.

John graduated from Osgoode Hall Law School and also holds an Honours Bachelor of Arts (Economics) from York University and a Master of Industrial Relations from the University of Toronto. Prior to law school he worked as an Economist with the Ontario Ministry of Finance.

Contact Information

T: 416.214.5232
F: 416.214.5432
john.devellis@shibleyrighton.com

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Education

Osgoode Hall Law School, LL.B., 2000
University of Toronto, M.A. (Industrial Relations), 1996
York University, B.A. (Hons), 1995

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