Date:   July 10, 2024

Attention:   

Ministry of Public and Business Services Delivery
56 Wellesley St. West, 6th Floor, Toronto ON  M7A 1C1

RE:  Feedback on Proposed Amendments to the Condominium Act and Expansion of CAT Jurisdiction. Proposal Number 24-MPBSD007 of May 27, 2024.

Gentlemen,

We are writing to provide detailed feedback on the Ministry's proposal regarding the expansion of the Condominium Authority Tribunal’s (CAT) jurisdiction to handle disputes related to owners' meetings, as well as other amendments to the Condominium Act.

5. Limitations on Disputes Brought to the CAT We recommend that the scope of CAT's jurisdiction be limited to the following types of disputes related to owners' meetings:

• When the board refuses to call a requisitioned meeting, CAT should have the authority to rule on the validity of the requisition and order the Board to call and hold a meeting. This would replace the existing provisions in the Act that require the owners to call and hold a meeting on their own.

If a challenge related to a requisitioned meeting – or any meeting-related issue for which the CAT may gain jurisdiction (which we do not recommend) – is brought to the CAT, the application should be required to have the support of at least 15% of unit owners, like the threshold required for requisitioning a meeting. This would help mitigate the glut of frivolous applications that is inevitable, should the CAT be granted related jurisdiction without such tempering measures.

• Adding general “meeting issues” to the CAT’s jurisdiction will increase administrative burdens on condominium managers and increase costs to condominium communities. We have already seen this play out with matters already under the CAT’s jurisdiction.

While the CAO states that “Condo corporations… can have their condo manager or one of their directors represent them” at CAT proceedings, in reality, the laws being adjudicated at CAT most frequently require condo corporations hire a condo lawyer to manage such issues. Volunteers and condominium managers are not lawyers and the cases before CAT often have tens-of-thousands-of-dollars on the line. Increasing the jurisdiction of the CAT will increase the number of proceedings that condo communities will have to pay for.

While condo corporations most frequently hire a solicitor to handle their CAT proceedings -- gathering evidence and documents, communicating and tracking issues related to such additional CAT cases inevitably creates significant burdens for condominium mangers and boards. The time stolen from these condo communities in navigating these unnecessary challenges will lead to increased management costs.

6. Concerns with CAT Handling Owners’ Meetings Disputes We have several concerns about CAT handling disputes related to owners' meetings:

• The Chair of condo meetings has the authority to keep order, maintain progress in line with the agenda, and make conclusions about the meeting following the by-laws of the corporation. The Chair appoints and instructs scrutineers and determines the validity of matters related to the meeting that may arise such as the validity of proxies and the results of elections. It would be inappropriate and for the CAT to be able to scrutinize the decisions of the Chair on such matters, especially if the matter would not affect the outcome of the meeting or is otherwise immaterial. If an owner can bring a concern about the chair to the CAT as a dispute this will mean that, for example, a disruptive owner told to be quiet could cause the community to incur thousands of dollars in legal costs to defend the decision.

Furthermore, this scrutiny by CAT will likely discourage individuals from volunteering on boards or running meetings. Aside from reducing communication between boards and owners and leading to governance paralysis, condominium corporations will likely need more legal advice and will likely ask condo lawyers to chair their meetings more frequently. While many corporations already involve their legal counsel in both preparing for and chairing the meetings, the increase in legal costs will make living in condominiums more expensive, especially for smaller communities.

• Adding meetings to the CAT’s jurisdiction without real preventative measures against, or consequences for, frivolous or vexatious claimants will result in an explosion of CAT applications for related claims. Again, we recommend a threshold of 15% of owners in agreement to bring meeting related applications to the CAT, if this jurisdiction is granted (which we do not recommend).

• The prospect of facing CAT challenges after every owners’ meeting could be a significant disincentive for directors to volunteer on the board or run meetings, negatively impacting community governance. Managers may also refuse to serve communities that are plagued with such perpetual, expensive and time-consuming challenges to the corporation. While condo communities typically hire a solicitor to advocate on their behalf in CAT proceedings, the condo manager is always involved in reviewing, documenting, locating records, compiling evidence and communicating with all parties related to CAT disputes, adding to a condo manager and board’s administrative duties.
• More pressing disputes, such as chargeback disputes, should be prioritized instead of meeting disputes for CAT jurisdiction. Chargebacks are a daily friction point for condo corporations and unit owners and need a streamlined, efficient resolution process.
• The CAT must adopt a just and equitable standard for awarding costs. There is growing concern regarding CAT decisions that unfairly financially penalize condominium communities, even when they are successful in CAT proceedings. It should be clear that condominium corporations hire solicitors to handle their CAT cases because managers and board members are not legal experts who should be dealing with multi-thousand-dollar legal proceedings on behalf of their community of owners, and consequently incur costs for doing so. Owners that are unsuccessful in challenging a meeting must bear some responsibility for the costs they caused their community to incur.

7. Information in Requisition Forms The standard form of requisition should include the following information to ensure clarity and prevent misunderstandings:

• There are specific purposes for which meetings can be requisitioned. Requisitioners should be provided with a list of the valid reasons for calling a meeting and be required to select from this list. If other “issues” are given as the reason for the requisition, these must be specific.
• The Requisition Form should require the contact information of the lead-requisitioner, and it should be this individual alone with whom the corporation should be required to communicate.
• The requisitioning parties collecting signatures should be required to inform those signing a standard Requisition Form that their names and contact information provided may be made public in the course of the requisition procedure, and the requisitioning documents should be circulated in full as part of subsequent meeting packages.
• There should be no blank ‘signature page’ as part of the standard Requisition Forms. A reoccurring issue is that signatories later say that they were not told or shown the substance of the requisition. Instead, there should be an individual signed statement page from each requisitioner. Requiring that each requisitioner sign an individual statement page that would contain the full reasoning behind the proposed meeting would help ensure the signatory is fully informed of the reasons for which their signature is being requested. The ‘lead-requisitioner’ should be required to provide a copy of each signed statement to each of the requisitioners who sign them. 
• The number of non-leased voting units should be listed to ensure the 15% threshold for requisitioning a meeting is met. This information should be provided in periodic information certificates and information certificate updates.

8. Mandatory Use of CAO’s Requisition Form

Further to the above, until it is substantially improved, the CAO’s Owner Requisitioned Meeting Template should not be made mandatory. While a standardized form ensures consistent information, the current form needs enhancements to address clarity and usability issues. For example, the current template refers to "issues" without prompting owners to raise specific topics, or advising owners what they can call a requisition to vote on, which causes confusion. The form should have a drop-down menu of the reasons that owners can call a meeting and have a binding vote (e.g., removing directors, or discussing and voting on a rule, a substantial change to the common elements, etc.) If the item is not listed, the form should default to informing owners that the meeting will be for information purposes only. Many owners believe that they can call a meeting to hold a vote on items such as whether there will be an increase in common expenses or a special assessment, or whether the corporation will move ahead with a repair project, which causes confusion

9. Board’s Response Time to Requisitions

10 days to respond to a requisition is too short a timeframe. The Board’s response time to a requisition should be extended to the next scheduled board meeting or within 30 days, whichever is sooner. This allows the board to set a meeting, discuss the request, and obtain professional advice without undue pressure. Condo boards can only make decisions at duly constituted board meetings, usually held monthly, and there may be notice provisions to call a board meeting in their by-laws.

10. Preliminary Notice Period

The preliminary notice period should be extended to 20 days to align with other meetings and provide candidates more time to submit their candidacy. This consistency helps avoid confusion for condo boards and managers and ensures a fair chance for owners to request the inclusion of information.

11. Additional Considerations for Section 46

Regarding the delivery of the board's response required by unproclaimed subsection 46(7), the board's response indicating that a meeting will be called and held should be considered complete when a preliminary notice of meeting is served to all owners. Additionally, the CAO registry and PICs should clearly indicate which director holds the non-leased/owner-occupied reserved position.

12. Replacement of “Owner-Occupied Units” with “Non-Leased Voting Units”

While our preference would be for the removal of the position altogether, we support replacing the term “owner-occupied units” with “non-leased voting units” for greater clarity and to eliminate confusion. The term "non-leased" is clearer and reflects the actual status of the units more accurately.

Any changes to or challenges raised with regards to “owner-occupied” or “non-leased voting units” should require a minimum of 15% of owner-occupied voting units to be in support of the change or challenge.

13. and 14. Procedure for Non-Leased Voting Unit Board Member Elections

The request for an election for a non-leased voting unit board member should be facilitated through an existing form, such as the "Submission to Include Material in the Notice of Meeting of Owners." This modification would streamline the process and reduce errors. There should be a threshold of 15% of non-leased voting units in support of the request for an election for a non-leased voting unit board member required.

15. General Feedback on Non-Least Voting Units

We recommend eliminating this position, unless 15% of non-leased voting units request having the position. Such a position, if created, should last for one term or until the director in this position is no longer on the board.

16. General Feedback on CAT’s Jurisdiction Expansion

We take this opportunity to renew our call for the proclamation of amendment 135.1 of the Condo Act.

On April 30, 2024, ACMO sent a letter to Premier Doug Ford, Hon. Doug Downey, Hon, Todd McCarthy, Minister of Public and Business Service Delivery and Procurement, and Hon. David Piccini, regarding our increasing concerns about violence, intimidation and harassment in our workplaces; condo communities.

This statement advocated for the immediate need to proclaim amendment 135.1 of the Condo Act to address this critical concern for welfare and safety. 

In the context in which the Government has requested input in this survey – which is purportedly to alleviate the housing crisis – putting in place a streamlined and straightforward path for condo communities to remove individuals who put the community at risk would appear to be a more significant concern.

We urge you to consider an expedited process for the proclamation of the amendment adding Section 135.1.  Your swift action on this matter will not only reinforce the government's stance on community safety but will also ensure that our legislative frameworks can adapt swiftly to protect the residents of condominium communities across Ontario.