Employers may be wondering if their workers are consuming drugs on the job, especially since marijuana became legal, but there are few instances where they can actually conduct random drug testing, says Toronto employment lawyer Deborah Howden.

There’s nothing in the Condominium Act that specifically speaks to a ban on pets, but condo corporations can create restrictions and rules to enforce the type of animal and how many an owner or resident can have in a unit, says Toronto condo and human rights lawyer Deborah Howden.

Howden, a partner with Shibley Righton LLP, tells AdvocateDaily.com that s. 58 of the Condominium Act speaks to a condominium corporation’s rules. Specifically, it states a condo corporation is entitled to enact rules for the following reasons:

Purchasers who wish to invest in condos prior to construction can mitigate their risk by seeking legal advice before signing on the dotted line, according to Toronto condominium lawyers Deborah Howden and Warren Kleiner.

Howden and Kleiner, partners with Shibley Righton LLP’s Toronto office, tell AdvocateDaily.com that a string of recently cancelled projects in the Greater Toronto Area (GTA) has left prospective purchasers high and dry, sometimes years after they paid their deposits.

Even if that money is returned to them, investors still lose out on the equity that would have built up in their property in the meantime, which can amount to a hefty sum in a market as hot as the GTA.

“Essentially, there is always a risk when buying a new condo because the builders will always include various clauses allowing them the ability to get out of the contract,” Kleiner says. “I can’t stress enough the importance of getting a lawyer to review these agreements, who can advise buyers of what they’re getting themselves into, and if possible, secure amendments to the contract to protect their interests.”

But not just any lawyer will do, adds Howden.

“It should be someone who knows condos,” she says. “If you get advice from a lawyer who deals with cottage properties, they may not have much experience with the documents, and may not know what to look out for.”

Howden says one recent Superior Court decision in favour of a developer who cancelled a project two years after buyers paid their deposits could put off future prospective pre-construction buyers.

He acted for some of the 600 investors in a sold-out Vaughan development who went to court seeking a declaration that their purchase agreements were invalid because of their extreme language, which allowed the seller the “sole, absolute and unfettered discretion” to cancel the contracts.

A judge found that, properly interpreted, the provision did not, in fact, give the developer a “sole, absolute and unfettered discretion” right to early termination. Nevertheless, he found that its right was properly exercised in this case, and rejected the buyers’ application to void the contract.

In an article on the case, the Toronto Star reported that there were 5,000 units affected by project cancellations in 2018, up from just 379 in 2016.

“It’s very bad news for the buyers,” Kleiner says. “No matter what you try to do to protect yourself, there are certain risks associated with brand new condos. You can put down your deposit, only for the vendor to come back years later, hand you back your money, and tell you it’s no longer proceeding.

“The only way to avoid that kind of risk altogether is to buy something that’s already built,” he adds.

Still, for those determined to proceed with a pre-construction purchase, Howden says there are other steps they can take to mitigate against the risk of cancellation.

“Make sure you are dealing with a reputable builder, and take a look at any past projects they’ve been involved with,” she says.

Under the Condominium Act, developers must give investors a 10-day cooling off period after signing their agreement to purchase a pre-construction unit, during which withdrawal can occur without penalty. Kleiner says this provides the perfect opportunity for buyers to seek counsel from a lawyer who can warn them about any terms that may fall short of industry standards.

“That cooling-off period is crucial,” he says. “These agreements can be very complex, so you want to have enough time for your lawyer to go through them. Even if you come late in the day, you may be able to get an extension of the time.”

For those who do proceed, Kleiner says they may be caught off guard by the extra costs often associated with new-build condos. For example, the law allows vendors to charge “interim occupancy fees” to cover maintenance costs during the stage of limbo between when the units are built and the time when the new condo corporation is officially registered.

Unit owners in the completed lower floors of buildings may also face these same charges before the construction on higher floors is complete, Howden warns.

“Not everyone realizes the consequences of the two-step closing,” Kleiner says. “You may have to move in before you actually own the unit, so it’s essentially akin to paying rent to a developer.”

Howden adds that while the risks of buying a pre-construction condo cannot be eliminated altogether, they can be mitigated.

The condominium community in Ontario saw many hefty legislative reforms between November 2017 and April 2018. Those changes were effected primarily under the amended Condominium Act, 1998, the new Condominium Management Services Act, 2015 and the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”), though there were other statutory amendments impacting condominiums . And just as the industry was adjusting to the overabundance of legislative change, many of the employment law reforms were swiftly clawed back, effective January 1, 2019.

Specifically, on November 21, 2018, the provincial government passed Bill 47, the Making Ontario Open for Business Act, 2018. Bill 47 was the current government’s reaction to the recent amendments to both the Employment Standards Act, 2000 (“ESA”) and the Labour Relations
Act (“LRA”) introduced under Bill 148. This article only focuses on certain  of the ESA changes.

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Family status discrimination claims could be on the rise, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

Howden, partner with the Toronto office of Shibley Righton LLP, explains that Ontario’s Human Rights Code prohibits discrimination on the basis of a person’s family status, which covers the relationship between a parent and child.  

And while the number of cases claiming this type of discrimination still trails those involving allegations concerning a person’s disability or sex, she says the gap could be closing.

“I think they will increase in number as parents continue to juggle their responsibilities in increasingly complex workplaces,” says Howden, who adds that the popularity of telecommuting has helped keep the number lower than might otherwise have been expected.

“But it’s still a real problem when telecommuting is not an option,”

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

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A recent decision shows employees can be held responsible for discriminatory behaviour in the workplace, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

In a ruling by the Human Rights Tribunal of Ontario, the adjudicator ordered a man who used a racial epithet at work to pay $1,000 to an offended colleague who overheard the remark.

The employer in the case reached a separate, confidential settlement with the complainant, but she elected to proceed personally with the application against her co-worker.   

“There’s a tendency to think that where a discriminatory event happens in the workplace, that the employer is going to be solely responsible, but that’s not the case, as this decision shows,” says Howden, partner with Shibley Righton LLP's Toronto office. “Typically, you wouldn’t see individual employees pursued because the employer is the one with the deep pockets, but this decision clearly demonstrates they can be held personally liable for what they say.

“You can’t just hide behind your employer in cases where you engage in acts of discrimination,” she adds.

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

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A recent decision by the British Columbia Supreme Court underscores the fact that unless an employee’s off-duty conduct has direct implications on the workplace or the employer’s business, it does not constitute just cause for dismissal, says Toronto employment lawyer Deborah Howden.

"However if you're in a front-line or public position and your continued presence could damage an employer's reputation or workplace morale, that's a different scenario," says Howden, a partner with Shibley Righton LLP's Toronto office.

The B.C. case involved a long-serving firefighter who was fired from his position after being charged with impaired driving while he was off duty. The court found he was not, in fact, properly fired for just case, she says.

"The takeaway is the courts are not just going to look at potential harm to the employer’s reputation," Howden tells AdvocateDaily.com. "They're going to consider a list of factors — for example does that off-duty conduct render the employee incapable of performing the workplace duties?"

She says employers should cautiously proceed when presented with this type of situation and take steps to conduct a proper investigation before taking significant corrective action.

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

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Growing weed at home may be legal under the Cannabis Act, but that doesn’t mean everyone can do it, especially those living in condos, Toronto condominium lawyer Deborah Howden tells NOW magazine.

Condo corporations have the power to create rules that prevent growers from “unreasonable interference with the use and enjoying of” an owner’s unit and the common elements in the building, says Howden, a partner with Shibley Righton LLP's Toronto office.

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

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Across Toronto, hundreds of condo boards have already banned both smoking and growing cannabis over concerns around the smell and mould that could form when growing the plants, she says.

Dewan v. Burdet, 2018 ONCA 195

Facts: A group of unit owners (the “Minority Owners”) claimed oppression by Claude-Alain Burdet (“Burdet”), the owner of a majority of the units in the corporation. The Minority Owners claimed that Burdet used his votes over the years and in his capacity as President, Treasurer
and Director of Carleton Condominium Corporation No. 396 (CCC 396), to benefit himself and his family at the expense of the Minority Owners and the corporation as a whole.

The trial judge found that Burdet oppressed the Minority Owners, was personally liable for the oppression, and terminated CCC 396 as a Condominium corporation. Burdet appealed those findings.

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Following the election of a new Provincial Government, the CCI-Toronto legislative Committee is working on behalf of all CCI members to ensure that we maintain the appropriate contacts with the Ministry of Government and Consumer Services, as well as all other Ministries which may impact the condominium industry.

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An engaged board of directors can lay the foundation for healthy condo governance, Toronto condominium lawyer Deborah Howden tells AdvocateDaily.com.

One director is the president of the board of a 479-unit condo in the city and operates a blog that provides updates on the board’s activities and the building's day-to-day operations.

As well as giving residents a front-row seat to negotiations with vendors and matters of interest in the building, the blog also attracts a broader following from readers across the province who use it as a resource.

Howden, a partner with Shibley Righton LLP's Toronto office, says the blog’s content reflects the board’s hands-on approach, one that she says is unusual in corporations of a similar size.

“Directors of smaller corporations tend to be more engaged because they may not have an on-site property manager,” she says. “Whenever you have a high-rise with lots of units and underground parking, it comes with a certain amount of daily issues that are often left to a management company. But this board is very involved in the day-to-day running of the corporation, alongside management.

“Every condo community is unique, so they all have different needs, but here is a model where the duties aren’t completely carved up between the directors and the property managers. In my view, it creates a really balanced, healthy relationship,” she adds.

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

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Someone is parking a car with advertising/company name on it overnight in their driveway, of which they have exclusive use, contrary to the corporation’s rule. Can the corporation enforce parking rules in spaces that are not owned by the unit owner, but of which they have exclusive use? And could there be an exemption from such a rule on the basis that it would violate human rights?

Are exclusive-use rules enforceable?

The simple answer is yes, the corporation can enforce parking rules; and whether the area is exclusive use or a unit is immaterial.

Under Section 58 of the Condominium Act, the board may make, amend or repeal rules, so long as the rules are related to either:

• promoting the safety, security or welfare of the owners and of the property or assets of the corporation; or
• aimed at preventing unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation.

The corporation can therefore make and enforce rules relating to every area of the condo building, including suites, balconies, common areas, and parking units. To be enforceable, the rules must be reasonable and consistent with the Act, the declaration and the bylaws of the corporation.

Every condo corporation has rules governing conduct on the common elements, including exclusive-use common elements. Rules respecting preserving the aesthetics of the corporation are also commonplace, on the basis that an unpleasant or non-attractive environment interferes with an owner’s use and enjoyment of the common elements, the units or the assets of the corporation. For example, condo corporations often have rules that prohibit the display of any kind of signage in units or the common elements or that require all window coverings be white or off-white to ensure uniform aesthetics.

A rule prohibiting signs or advertising on any vehicle parked on the common elements serves to protect the overall exterior and interior appearance of the condo property. A rule in a condo prohibiting the parking of commercial vehicles was challenged and upheld by the courts on the basis that parking a commercial vehicle would interfere with the use and enjoyment of other units and/or their occupants because the parking of such vehicles would be unsightly and thus interfere with the use and enjoyment of the common elements, common to units in the complex. It should also be noted that some municipalities have bylaws placing restrictions on the parking of commercial vehicles (which may or may not include vehicles with signage) on residential properties. One example is a municipality that prohibits commercial vehicles from being parked on any residential lot unless parked entirely within a wholly enclosed building.

Is a human rights exemption possible?

Human rights cases are context-specific and so generalizations about possible exemptions should be avoided.

To invoke the Human Rights Code, the discrimination must be related to one or more of the following prohibited grounds: race, colour, ancestry, creed (religion), place of origin, ethnic origin, citizenship, sex (including pregnancy), gender identity, gender expression, sexual orientation, age, marital status, family status, and disability or the receipt of public assistance (this last ground applies to housing only).

A rule prohibiting displaying signage on the corporation property in and of itself would not implicate any prohibited ground. There is no Code-related right to free speech or to earn a living, unless these are restricted because of race, gender identity, or some other prohibited ground of discrimination. The freedom of expression and other freedoms are found in the Canadian Charter of Rights and Freedoms, which applies to government action only, and not to condos.

There may be particular situations in which a resident requires accommodation with respect to the rule because of either family status or on some other protected basis (e.g., a resident who must leave the company vehicle overnight in the parking space because he or she must drop off children to school early in the morning and go straight to work, or risk the employer’s corrective action). However, there are a number fact-specific solutions to address these issues, such as masking the signage, or making arrangements to swap out the company vehicle nearby and off site. A condo’s accommodation obligations are almost always determined in a fact-specific, case-by-case manner.

Deborah Howden and Warren Kleiner are lawyers and partners in Shibley Righton LLP’s Condominium Law Group. They are condo law specialists who regularly advise condo corporations all across Ontario.

A new law limiting what can be turned over in police background checks will make employers’ lives easier, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

The Police Record Checks Reform Act passed without opposition at Queen’s Park all the way back in 2015, but only goes into force this November, when it will alter what police can tell organizations who request background checks for prospective employees and volunteers.

According to the Toronto Star, the legislation was prompted by its investigation into the plight of individuals denied the ability to work or travel due to the disclosure of “non-conviction records,” which include details of police interactions related to unproven allegations and mental health issues.   

Howden, a partner with Shibley Righton LLP's Toronto office, says the old rules tended to put employers in a difficult position because of the sheer volume of information they received.

“Virtually any contact with police could be brought to the attention of employers, meaning that they would have access to information that they had no idea what to do with,” she says.

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

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A recent Supreme Court of Canada (SCC) ruling clarifies the boundary between what constitutes incivility in a courtroom and strong legal advocacy, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

The Law Society of Ontario (LSO) launched a proceeding against Toronto securities lawyer Joseph Groia 2007 for professional misconduct in court while successfully defending a client in a lengthy and complex fraud trial. The lawyer was cited by the law society for attacking Ontario Security Commission prosecutors both professionally and personally.

The lawyer received a $200,000 fine, a one-month suspension and ordered to pay about $2 million in legal fees in 2012.

He challenged the decision but it was upheld by the Divisional Court and the Court of Appeal until the Supreme Court of Canada overruled the LSO in a 6-3 judgment this year. The majority found that while the LSO retains the ability to determine whether courtroom behaviour can amount to professional misconduct, lawyers are also bound to fearlessly advocate for their clients, Howden says.

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

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A recent Conference Board of Canada report has confirmed what many working  women have known all along — there is a significant gender wage gap in the province, with women making a mere 87 cents for every dollar earned by men. The Equal Pay Coalition’s calculation of the gap is actually bleaker, pegging it at approximately 30 per cent. Predictably, the conference board has given Ontario a “C” grade for the wage discrepancy.

By all accounts, the wage gap continues despite Ontario’s Pay Equity Act, which...

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Although cannabis is expected to be legalized this summer, condo dwellers shouldn’t count on being able to spark up in their homes, Toronto condominium lawyer Deborah Howden tells NOW magazine.

Legally, condo boards can draft a rule that would prohibit smoking cannabis in individual units as well as on balconies, says Howden, a partner with Shibley Righton LLP’s Toronto office.

She tells the magazine that under s. 58 of the Condominium Act, condo corporations can create new rules that “promote the safety, security or welfare of the owners, and prevent unreasonable interference,” but that medical marijuana users may be exempt under Ontario's Human Rights Code.

Howden says residents could regard the strong smell of second-hand smoke as a nuisance, and therefore a new rule restricting cannabis smoking could be reasonable.

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

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