Ontario’s business law statutes could be more innovative

Ontario’s business law statutes could be more innovative

December 31, 2007

Toronto condominium lawyer Armand Conant weighs in on Bill 106, including what’s new and what the government may have missed, in the July 2015 cover story of CondoBusiness.

Bill 106, also known as the Protecting Condominium Owners Act, passed the first of three readings in the provincial legislature in May and proposes to overhaul the Condominium Act, 1998 and introduces the Condominium Management Services Act, says the industry magazine.

The in-depth article breaks down the 159-page bill and highlights 25 details, divided into the five major areas of reform: consumer protection; dispute resolution; finances; governance; and management.

Conant, partner and head of the condominium law group at Shibley Righton LLP, shares some early insights into the Protecting Condominium Owners Act.

CondoBusiness reports the proposed act would prevent declarations, bylaws or agreements from restricting a corporation’s claims against a declarant without sign-off from the board elected after turnover. “It’s a provision that came at the last minute,” says Conant, which he notes was a response to a Court of Appeal decision.

The decision, says the magazine, “essentially lets a developer off the hook for civil claims for common element construction deficiencies by limiting his liability to only what’s covered by Tarion. The reasoning behind the decision was that, technically, the developer had disclosed this to buyers in the disclosure statement.”

The government’s expert panel, which Conant was a part of, recommended getting rid of the owner-occupied elected board position which was designed to address the concern that developers who retained possession of a majority of units had the voting power to stack condo boards. It remains in the proposed act — although modified to a certain degree — but Conant tells CondoBusiness he doesn’t see developers stacking boards. In his view, the position creates an administrative headache at annual general meetings but concedes that it’s not a big game-changer either way.

Conant tells the magazine he wonders who will be appointed to the the proposed Condominium Authority Tribunal, which would be empowered to make binding decisions for a broader range of disputes than contemplated by the expert panel. This would require that appointees be adequately trained to make these kinds of decisions, he says.

While the Condo Authority Tribunal will be funded by a fee of about $1 per unit, per month (payable to the condo corporation and the corporation pays the Authority), Conant says it will not be the only source of funding as there will also be user fees, which he says should help to discourage frivolous dispute-resolution applications. While many in the media incorrectly reported that developers will be contributing to the costs, Conant says that is not the case.

He says the Canadian Condominium Institute (Toronto) — along with the other Ontario chapters — and the Association of Condominium Managers of Ontario joint legislative committee will meet before the proposed act goes to second reading in the fall.

“If the committee identifies any serious issues,” he says, “it will make submissions to the government and appear and speak at the standing committee hearings.”