Law Clerks' Review

Let us start with what we know. Statistics tell us that frauds are far more likely to be discovered by anonymous tips, and by accident, than by internal or external audit. They also tell us that most corporate frauds go on for one or two years before they are discovered. Clearly there is work to be done to increase the proactive discovery of corporate fraud.

Let us continue with some anecdotal evidence of how to accumulate corporate intelligence. Popular television shows like ‘Undercover Bosses’ tell us that management can learn a lot more about what is going on by impersonating lower level staff and gathering intelligence at the grass roots, than they can from any other source. Today, reporters use embedded journalism as a way to get information. Through this method, they are involved with the actual troops and move with their movements. This allows the journalist to get first hand information, unfiltered by censorship or bureaucratic spin.

Finally, we have our own experience that once you engage in a peer-to-peer relationship on a day to day basis, people ‘let their hair down’, and you get the full nuanced and contextual truth of what is going on, and why. This is far more effective than the hierarchical, formal, periodic interviews where you get formal, defensive positions inextricably intertwined with ‘the story’.

What we are left with is the obvious: corporations are better off hiring forensic investigators and embedding them in line positions to proactively seek out fraud rather than auditors, internal or external, to try to ferret out fraud from the outside.

So how does this work? First, your auditors or a forensic investigator identifies fraud ‘hot spots’ within your organisation – positions where internal controls are weak, or regularly overridden, for example. Then, because most forensic investigators had line positions before they secured their training, you simply hire a forensic investigator with a resume that qualifies for a ‘temp’ position within that ‘hotspot’. They may replace an employee on vacation, or maternity leave, or they may fill a recently vacated position. In any event, they maintain their real identity and credentials (save those related to fraud investigation, which should be wiped from the internet), and simply carry out the requirements of their new job. The alternative is for the imbedded investigator to adopt a fictitious persona, and use that persona to conduct their investigation. Either way, as a newcomer they can ask a lot of questions without arousing suspicion. Because information is gathered informally, it tends to be more forthcoming and candid. The investigator then files a report which may lead to a more formal investigation, or directly to criminal charges, terminations or civil litigation.

How well does this work? In our experience, just as people forget there is a camera or tape recorder in the room after the first few minutes of an interview, so too even those co-workers who find out that the corporation has hired a forensic investigator for a line position (and being ‘Googled’ is a standard operating procedure for co-workers these days) soon get past it and deal with the investigator as a co-worker, so long as the investigator can step into the line position seamlessly. Thereafter it is simply a question of the investigator being given time to integrate into the formal and informal communication channels, and report what they see and hear. The results are far more ‘fair’ to the subjects of the investigation, and far better evidence in court, so long as the investigator has not adopted a biased mindset bent on prosecution and edited their findings accordingly. The subjects tell their story, their way, as part of a ‘day in the life’ narrative given by the investigator.

Why is this effective? First, the forensic investigator has no formal ‘subject’ to investigate. The investigation develops organically as frauds are discovered and traced to all of those who participate in them. Second, you hear from the people in their own words in a setting where they are comfortable. Formal interviews favour the articulate and personable. Real time dialogue gives the employer, and if necessary, a court, a better reflection of what people are doing, and why.

By way of an apocryphal example, lawyer A joins ABC law firm. Lawyer B is already a member of the firm and hears a rumour from staff that lawyer A is perpetrating a fraud a few doors down from him. After befriending this lawyer in the context of working on a file together, lawyer B learned of what lawyer A was doing, and why – he was ‘borrowing’ from an estate client of his because the estate trustee was a friend, and he intended to pay the money back. Lawyer A had to borrow because he advanced considerable money to family members because of their extravagance, and his trustee friend would understand, indeed he had authorised previous loans in the past. Lawyer A was also paying himself out of accounts held by family members using a power of attorney. He was doing so because he had already made significant advances on their behalf, such that he was entitled to make payments to himself from family accounts as they were really repayments. Getting independent legal advice for the trustee and court approval for incapacitated family members were useless and expensive formalities. Now would the lawyer have told the same story in a formal investigation? Probably not. Did the story as it was told ring true in its explanation of what was happening, the motivation for doing it, and the rationalisation for doing it in the way it was done? Absolutely.

Corporate fraud is not being effectively dealt with by internal or external audits, which together catch only about 15 percent of all corporate frauds. New tools are required. Consider the embedded investigator.

PROTECTING CONDOMINIUM OWNERS ACT

The Protecting Condominium Owners Act is the product of the government’s comprehensive review of the existing Condominium Act.

It marks the first overhaul of the province’s condo law in over 16 years. It:

• amends the Condominium Act and the Ontario New Home Warranties Plan Act
• enacts the Condominium Management Services Act
• makes small consequential amendments to other relevant acts

Many important aspects of the reforms will be implemented through regulations and by the new administrative authorities to allow for flexibility in a rapidly changing market. Regulations will be prepared in consultation with the public, condo owners and the condo sector, including consultation through the regulatory registry.

The majority of the provisions of the act are not yet in force. Most provisions will come into force on a date (or dates) set by proclamation of the Lieutenant Governor.  Ontario plans to work quickly to develop regulations and implement the key commitments of this act.

CONSULTATIONS

Due to the growth and change in Ontario’s condo sector over the past 16 years, Ontario announced a review of the Condominium Act in June 2012.

The Condominium Act Review was an 18-month collaborative public engagement process. It gave condo owners, developers, managers and other experts an opportunity to identify issues in condo communities and to work together to develop long-term solutions.

Overall, the Condominium Act review generated over 200 recommendations. This included significant reforms to strengthen consumer protection and support the needs of both current and future condo owners. Ontario’s new law includes a vast majority of recommendations received through this consultation process.

Learn more about the consultation process

STREAMLINE DISPUTE RESOLUTION

The review of the Condominium Act revealed a frequent power imbalance during disputes between condo boards and owners.

The basic tools for resolving disputes under the existing act are mandatory private mediation-arbitration and the courts. These processes can be time-consuming and legal costs can be expensive.

The goal of the legislation is to correct this imbalance by providing a faster, more effective, less expensive and fairer dispute resolution process.

To do this, the Condominium Act Review Stage 2 Solutions Report recommended setting up a single “condo office” to oversee education, dispute resolution, condo manager licensing and to maintain a registry of all condos in the province.

The act, when in force, will split the functions between two new administrative authorities, delegating these functions to two independent, self-funded bodies:

• a Condo Authority that would be responsible for administering condo owner education, dispute resolution and a condo corporation registry
• a separate Administrative Authority to administer licensing of condo managers and condo management providers

Some stakeholders have pointed to the need for two separate bodies to avoid actual or perceived conflicts of interest.

While the two bodies would operate separately, they may share premises and various services in order to contain costs.

CONDO AUTHORITY FUNCTIONS

The Condo Authority will provide:

• affordable access to quicker, accessible and lower cost resolution of disputes primarily between corporations and owners
• self-help tools, case management and mediation to prevent easy-to-resolve disputes from being tied up in costly and time-consuming legal proceedings
• education and awareness for condo owners about their rights and responsibilities, and the basics of condo living and how it differs from other freehold ownership
• education for condo directors
• a registry of all condo corporations in Ontario, including their boards of directors and contact information
• a guide for condo buyers, setting out unit owners’ roles and responsibilities

CONDO AUTHORITY STRUCTURE

The Condo Authority will operate as an administrative authority. It would be an independent, self-funded, not-for-profit corporation. Its employees would not be members of the Ontario Public Service.

To ensure accountability and transparency, the Condo Authority would:

• have an administrative agreement with the Minister of Government and Consumer Services
• be required to publicly disclose certain information, and
• be subject to oversight by the Auditor General

Condo Authority funding

The province would provide start-up funding for the Condo Authority.

After the initial start-up, the authority would set its own fees. It would charge:

• fees to users of its services
• a small fee levied on condo corporations across the province

The fee to all condo corporations is intended to help keep dispute resolution costs lower, and would cover the cost of the Condo Authority’s dispute prevention services (e.g.,condo buyer’s guide, online self-help tools).

The Condo Authority would determine and set this fee, in accordance with processes and criteria approved by the Minister of Government and Consumer Services. In line with the Stage 2 report, it is estimated that the fee will be approximately $1 per unit a month.

For example, the authority would charge a condo corporation with 100 units about $100/month.

This fee structure reflects the fact that all condo owners would have equal access to dispute resolution from the Condo Authority.

Condo corporations would collect the fee from unit owners as part of monthly common expenses. As with all monthly common expense fees, each unit’s contribution would be calculated using the proportions set out in the condo declaration.

Fees will not be collected until the Authority is in place in 2017.

THE CONDO AUTHORITY TRIBUNAL

The amendments to the Condominium Act delegate to the Condo Authority the responsibility to administer the Condominium Authority Tribunal, which will resolve disputes through case management, mediation and adjudication.

Key features:

• the tribunal’s services would include online resources and self-help tools
• the tribunal would make binding decisions that would be enforceable as if they were a court order
• existing dispute resolution mechanisms would still apply to disputes outside the tribunal’s jurisdiction
• the divisional court would hear appeals from tribunal findings on questions of law

TRIBUNAL DISPUTES

Regulations will set out which disputes (primarily between owners and corporations) would have to be heard by the tribunal. They may include:

• enforcement of declarations, by-laws and condo rules
• procurement processes
• access to records
• procedures for requisitioning a meeting of owners

Certain disputes would be excluded, and would need to go through mediation and arbitration or court, such as disputes relating to:

• liens
• amalgamation and termination of condo properties
• determination of title to real property

TRIBUNAL DISPUTE RESOLUTION FEES

The Condo Authority will set its own budget and fees in accordance with the processes and criteria approved by the Minister of Government and Consumer Services.

It is anticipated that the cost of resolving a dispute through the tribunal would be substantially lower for owners and boards than the legal fees and other costs that are paid today. It is also expected that the tribunal would resolve disputes more quickly.

ENHANCE CONSUMER PROTECTION

As recommended in the Condominium Act Review Stage 2 Solutions Report, extra safeguards to protect condo buyers and help them make more informed decisions are a key part of the act and related regulations.

Condo guide

As part of the drive to improve awareness among condo owners and other stakeholders, the amendments will require the province to publish an easy-to-read condo guide, containing essential facts about the roles and responsibilities of living in a condo. This task could be delegated to the Condo Authority.

The condo guide would include information such as:

• how corporations are governed
• owners’ rights and responsibilities
• care and maintenance of common elements
• how owners can request an information meeting at any time

Developers will be required to give a copy of the guide to all buyers of newly-built condos at the time of sale. This would enable buyers to read it during the 10-day “cooling off” period that they have to consider their purchase.

Sale or leaseback of units and common elements

Some developers have been separating building components that could have been part of the common elements of a condo property (e.g., amenities like a gym or party room). In some cases, developers will then sell or lease these components back to the condo corporation. This practice has increased in recent years.

The review’s Stage 2 report concluded that this practice inflates the cost of units and has become an unnecessary source of tension within condo communities.

Regulations will be able to specify what components must form part of the common elements or be owned by the corporation at the outset. These specifications would only be subject to future changes made by a particular post-turnover owner-elected board, in accordance with any other requirements in the legislation.

In addition the amendment will forbid:

• a condo corporation from acquiring an interest in property unless the particular post-turnover owner-elected board agrees
• attempts to circumvent the above prohibition in the agreements of purchase and sale with buyers

Regulations will allow for some flexibility and exceptions to these prohibitions. For example, one exception could be that developers would be able to sell or lease certain energy-efficient equipment, which would benefit owners, to a condo corporation before turn-over (e.g., solar heating system, energy-efficient boilers water heaters). Other exceptions may include certain facilities to be shared between a condo property and other types of properties. Any such exceptions would be determined during the regulation-making stage.

Shared facility agreements

There have been cases where developers do not install separate electricity, water or gas meters for commercial property users who share these utilities with an adjacent condo property. Instead, there is just one meter and one bill. The total cost is then split among residential units and commercial tenants.

There are situations where a non-condo commercial enterprise (e.g., coffee shop) has used far more electricity and water than individual residential units in a condo property. In these cases, without separate meters, unit owners end up paying a disproportionate share of the utility costs.

There are other cases where a condo property shares the use of land, services or facilities with a non-condo property and no shared facilities agreement has been put in place to deal with matters such as the sharing of costs with respect to maintenance and repair.

The amendments will require a written shared facilities agreement between condo corporations, developers and other parties who share services, land or other property (e.g., swimming pool, underground garage).

Regulations will be able to set out provisions for these agreements. For example, they may set out if these agreements would have to include a method for distributing shared costs.

Regulations will also be able to address other issues, such as whether separate utility meters or sub-metering arrangements would have to be installed.

Disclosure statements and declarations

A disclosure statement is a document compiled by a developer that tells purchasers about the condo they are buying. It provides vital information about the future or existing condo property and corporation (e.g., corporation’s first-year budget, the proposed or actual declaration, by-laws and rules).

A declaration, or a developer’s proposed declaration, sets out matters of ownership, such as the boundaries of the unit, the designated use of the unit, the proportion (expressed in percentages) of common expenses allocated to the unit, and repair and maintenance obligations.

Declarations and disclosure statements vary widely and are often difficult for condo buyers to read and understand.

Regulations will be able to create rules for standard disclosure statements and declarations, in terms of their form and content. Developers would not be able to alter these aspects of disclosure statements and declarations. They would also be easier for buyers to understand.

Among other items, standard declaration provisions would be able to cover unit boundaries, maintenance and repair obligations, and insurance requirements. A standardized disclosure statement summary would replace the current table of contents.

Disclosure of known costs beyond the corporation’s first year

At present, a condo developer may defer some of a corporation’s operating costs and not include them in the first-year operating budget. A unit’s monthly fees can rise sharply once these costs take effect.

As a result, the act requires developers to disclose any circumstances that they know of, or ought to know of, which may lead to an increase in common expenses within a set period of time after the corporation’s first year (e.g., elevator maintenance contract). In some cases, developers would also have to disclose the amount of the potential increase to common expenses.

Ontario New Home Warranties Plan Act warranties

A growing number of condo projects centre on the conversion of an existing building, where construction incorporates pre-existing elements like the façade of a church or school, or the entire frame of an office building.

The Ontario New Home Warranties Plan Act (ONHWPA) does not currently extend to these condo conversion projects, creating inequities for consumers and exposing them to risks.

The legislation amends the ONHWPA so that most of the warranty protections available to buyers of new condos would also apply to certain condo conversion projects. Such an extension would provide a necessary safeguard for buyers of this type of condo.

Some ONHWPA warranties would not apply to the pre-existing elements of a condo conversion, namely that the pre-existing elements have been constructed in a workmanlike manner and are free from defects in materials. All other ONHWPA one-year warranties, as well as all other two-year and seven-year warranties would apply to both pre-existing elements and new elements of a conversion.

Condo project websites

Regulations could require developers or a related company to include specific items of information on websites dedicated to their condo projects (e.g., the proposed declaration, by-laws, rules, other key documents, a search function for key words and terms).

Material change

A buyer can currently cancel a condo purchase within an initial 10 day “cooling-off” period for any reason whatsoever.

In addition to the initial 10 day “cooling off” period, a buyer may cancel a condo purchase in the event of a “material change” to the information contained, or that should have been contained, in the disclosure statement.

The act amends the definition of “material change” to exclude certain changes, such as an increase of less than 10%, or another threshold set out in the regulations, to the amount of the projected common expenses previously disclosed to the buyer. This amendment would provide greater predictability to purchasers about increases to the projected common expenses that they could expect once they become an owner.

The definition of “material change” has been amended to exclude certain changes, such as an increase of less than 10% (which will be calculated and determined in the regulations), to the amount of the projected common expenses previously disclosed to the buyer (or an increase of another threshold that will be set out in the regulations). This amendment would provide greater predictability to purchasers about increases to the projected common expenses that they could expect once they become an owner.

Additionally, the amendments will allow a purchaser or past purchaser to make an application to court to seek compensation from the developer for any losses the purchaser incurred if the developer does not comply with the "material change" disclosure requirements of the Act.

Status certificates

The status certificate for a resale condo contains important information on the financial status of the unit and the corporation.

During the Condominium Act Review, many experts expressed the view that status certificates should include extra information as a way of improving the understanding of the financial health of the corporation.

The act will expand the information that needs to be included in a status certificate. Regulations may also require that additional information be included in status certificates.

Unreasonable noise

The review process revealed that many condo owners are disturbed by recurring noise caused by their neighbors.

The act will recognize the right to quiet enjoyment by prohibiting the creation of an unreasonable noise or any other nuisance, annoyance or disruption to an individual in the condo property.

Delivery of documents

The act will enable the province to regulate how important documents (e.g., disclosure statements, status certificates and material change notices) are delivered.

Strengthen financial management

The amendments will give owners more information about financial matters affecting their investment and more control over important changes.

The Condominium Act Review raised numerous issues involving condo corporations’ operating budgets and insurance practices. It also revealed that some corporations lack funds to pay for major repairs. This can lead to costly special assessments – a type of common expense in addition to regular monthly condo fees.

The Stage 2 Solutions Report recommended that:

• owners need timely and reliable information and access to their corporation’s financial records
• some corporations need clearer rules when it comes to setting and adjusting their budgets
• clearer rules for setting up insurance be put in place

In addressing these concerns, Ontario has aimed to strike a balance between:

• giving condo boards sufficient flexibility to authorize work that needs to be done on the property
• the risk of mismanagement if boards have too much leeway in spending decisions

Changes by condo corporations without notice to owners

Changes “without notice” enable a board to authorize an addition, alteration or improvement to the common elements, a change in the assets, or a change in the service the corporation provides without consulting owners.

The current law allows such "without notice" changes under certain circumstances, such as if the estimated cost in any given month is not more than $1,000 or 1% of the annual budget, whichever is higher. However, some boards have been able to manipulate this limit at the owners’ expense.

The amendments will be updated and clarify when boards may carry out modifications to the common elements, any assets of the corporation, or services the corporation provides without notice to owners. For instance:

• to comply with a shared facilities agreement with, for example, another condo corporation
• to ensure the safety or security of those in the condo property or prevent imminent damage to the property or any assets of the corporation
• if the change does not involve spending more than $30,000 or 3% of the budgeted common expenses for the current fiscal year, whichever is less
• if owners would not see the spending change as materially limiting their use or enjoyment of their own units, the common elements or any assets of the corporation
• if a law or regulation requires the modification, for example, to comply with fire codes and accessibility laws
• if the modification is for any other purpose that may be set out in any regulations under the proposed act

Notice of off-budget spending

The Stage 2 report concluded that boards need to communicate more openly with owners in the event of a sizeable unforeseen repair or an unexpected cost overrun on a scheduled repair.

Under the amendments to the Condominium Act, a condo board will have to notify owners within a specified time if it proposed an expense exceeding the budgeted amount by more than a set margin. Regulations will determine the margin, the form of the notice and the time for notification.

Communication and education on financial matters

The review identified improved communication and education among condo owners, especially on financial matters, as a cornerstone of a healthy and vibrant condo community.

In one of several provisions aimed at greater transparency, the amendments will require every condo corporation to prepare an annual budget covering operating accounts and the reserve fund. The act would also set rules governing the date on which the corporation’s first fiscal year would end.

Maintenance and repair

The Stage 2 report called for greater clarity on who is responsible for paying for repair and maintenance of various parts of the condo property.

Under the amendments to the Condominium Act, a condo corporation would be responsible for repairing and maintaining the common elements and any assets of the corporation. Unit owners would be responsible for maintenance and repair of their units.

Condo declarations would be permitted to provide further details on some of these obligations and to alter them to some extent. The rules regarding when a corporation is required or permitted to carry out an owner’s repair or maintenance obligation would also be clarified, including an owner’s responsibility for reimbursing the corporation for its costs.

The terms “repair” and “maintain” would also be clarified so that each would have a distinct meaning.

Reserve funds

Every condo corporation is required to set up a reserve fund and must ensure that it is adequate to pay for major repairs and replacement of the common elements and any assets of the corporation as they age. These items typically include the roof, the exterior of the building, underground parking garages, roads, sidewalks, heating and cooling equipment, plumbing, elevators and recreational facilities.

Reserve funds are mandatory in Ontario. The current Condominium Act requires that boards must undertake periodic reserve fund studies as a way of ensuring that a corporation’s fund is adequate. This step has made an important contribution towards improving the management of condo communities.

Even so, many reserve funds are too low to meet their corporations’ needs, especially in older properties. As these properties age, owners are being called on to make significant extra contributions for repairs that many neither planned for nor expected — and often cannot afford.

Furthermore, participants in the Condominium Act Review agreed that owners should be encouraged to gain a better understanding of how their reserve fund operates.

The act has several provisions to address these concerns.

1. Adequacy of reserve funds

Although the current Condominium Act requires that corporations have adequate reserve funds, it does not define the term “adequate.” Regulations under the act establishes how adequacy would be determined for:

• reserve fund studies
• a condo board’s required funding plan following a reserve fund study
• the amount of common expense fees that a corporation collects from the owners to apply to the reserve fund

2. Purpose of reserve funds

The amendments will broaden the purpose of reserve funds to include:

• major repair to units (in addition to the common elements and any assets of the corporation) if a corporation has an obligation to repair units
• other items and projects set out in the act’s regulations (e.g., energy-saving projects)

The regulations will be able to set out what constitutes a “major repair.”

3. Expert opinion on the reserve fund balance

Under the amendments to the Condominium Act, if a reserve fund were to fall below the level set out in regulations, the board would be required to obtain an outside opinion on whether it should conduct a study on the adequacy of the fund before the next required periodic study.

4. First-year reserve fund contribution

Under the amendments to the Condominium Act, developers would need to specify, in the corporations’ first year budget, the amount of the common expenses to be paid into a condo corporation’s reserve fund.

Regulations would set out how that amount would be calculated. One option might be a minimum percentage of the operating budget.

5. Accountability for a first-year deficit

Under the amendments to the Condominium Act, if a developer does not comply with the act’s rules for calculating the first year budget reserve fund contributions, the developer would be liable to the corporation for the amount of money that it would take to be in compliance.

Insurance

The Condominium Act Review process highlighted numerous gaps and shortcomings in condo insurance practices.

Some of the most troublesome issues relate to the definition of a “standard unit” in a condo building. Without a clear definition, it is difficult for owners to know exactly what they are responsible for insuring.

The review of the Condominium Act resulted in a recommendation for a set definition of a standard unit. A corporation would have authority to amend the definition through a by-law.

In line with this recommendation, regulations will set out a basic, default definition of a standard unit in cases where a condo corporation has not passed its own by-law spelling out such a definition.

The condo corporation would be required to obtain insurance for all standard unit components of a unit, as well as the common elements.

Owner’s liability for damage

Sometimes an owner’s carelessness results in damage to the common elements, assets of the corporation or to another unit. The existing law was unclear about who pays the corporation’s insurance deductible for the damaged property, although a board does have the option to pass a by-law assigning this responsibility.

The Stage 2 report recommended greater clarity on this issue. The act make it clear that the responsibility for damage lies with the owner of the unit where the person (or, if set by regulation, the thing — such as a pet) who caused the damage lives — provided the damage was not caused by agents or employees of the corporation.

If, for example, a unit’s resident damages a unit, any assets of the corporation or common elements covered by the corporation’s insurance, , an amount will be charged back to the unit owner’s contribution to common expenses. This charge-back will be calculated as the lesser of:

• the cost of repairing the damage
• the deductible limit of the corporation’s insurance policy

A condo board would not be able to make certain alterations to this obligation through a by-law (as is the case under the current act). It could be changed only by amending the condo declaration.

Charge-backs

A charge-back is an extra fee added to a condo unit’s monthly common expenses. Under the current act, a condo board can issue a charge-back to recover costs that the corporation incurs for items like:

• carrying out an owner’s repair or maintenance obligations, or
• certain court costs obtained by a corporation against an owner

Most condo declarations also contain indemnification clauses. These clauses set out when a corporation may add a cost that it incurs to an owner’s common expense fees.

The Stage 2 report recommended that the act clarify what a charge-back is and when it can be charged.

In the amended Condominium Act this will be done through:

• a prohibition on fines
• the regulation of any indemnification or charge-back clauses in a condominium declaration

Corporations would also be required to provide a notification to owners on any charge-backs that the unit owners owe, which would include a deadline for payment.

Owners would be able to submit certain charge-backs to dispute resolution within 30 days of receiving a charge-back notice.

Payment would be suspended during dispute resolution proceedings related to the charge-back. However, if the owner transfers the unit, he or she would have to make sure that the unpaid amount in dispute is held in escrow before the transfer, and until the dispute is resolved.

Disclosure of known costs beyond the corporation’s first year

At present, a condo developer may defer some of a corporation’s operating costs and not include them in the first-year operating budget. A unit’s monthly fees can rise sharply once these costs take effect.

As a result, the act requires developers to disclose any circumstances that they know of, or ought to know of, which may lead to an increase in common expenses within a set period of time after the corporation’s first year (e.g., elevator maintenance contract). In some cases, developers would also have to disclose the amount of the potential increase to common expenses.

Condo corporation investments

Condo boards now have little flexibility to decide how to invest a corporation’s funds. The Stage 2 report recommended consideration of a wider range of options.

With respect to investments, the act allows a greater measure of flexibility – to be set out in the regulations. However, it would also maintain, and in some cases clarify, some fundamental protections.

Improve how condos are run

The Condominium Act Review raised several issues related to condo governance. For example:

• many condo owners feel detached from their boards and building managers
• some condo board directors need additional training and support
• owners say they know too little about how and why decisions affecting their interests are made
• owners are calling for more transparency and accountability from condo boards
• fewer owners are attending condo meetings in person or by proxy

Threshold for passing condo by-laws

Regulations under the act provide a transition period during which corporations could change their existing by-laws with a lower threshold of required votes. This would enable condo corporations to align their by-laws with the requirements of the new act.

Term limits

In line with the Stage 2 report, the act continues to give corporations flexibility to decide on term limits for directors. Corporations can include such decisions in their by-laws.

Improved communication with unit owners

One common thread running through the review process, the Stage 2 recommendations and the act is the need for improved communication and education in condo communities.

The amendments will require boards to issue regular information on topics such as the corporation’s insurance, legal proceedings, the names and addresses for service of the corporation’s directors.

Regulations will set out how and how often boards would have to issue these updates. The act states that some of the updates would have to be sent out as “information certificates.” An information certificate would be similar to a newsletter and be sent to the owners on a regular basis or at other specific times.

Board meetings by conference call

Under amendments to the Condominium Act, condo boards will no longer have to pass a by-law to allow for conference calls and similar off-site meeting technologies. This makes it easier for condo boards to hold regular meetings.

Regulations will set out more details for this rule. Also, condo board members would need to agree to hold meetings in this way.

Procurement process

The review concluded that “kickbacks” on contracts or payments made to maintenance companies associated with condo board members are a serious concern for some condo owners.

The Stage 2 report concluded that the best protection would be having a well-executed, sealed-bid, contract procurement process.

Because of this, the act will forbid condo corporations from concluding procurement contracts unless they fulfill certain requirements, such as a sealed bid process. Regulations will set out the procedures that would need to be followed and under what circumstances (e.g., for contracts exceeding a certain value).

Preliminary notice of owners’ meeting

Many condo boards already provide an informal “preliminary notice” of a meeting as a way of encouraging owners to nominate candidates for director positions or to suggest items for a meeting agenda.

The amendment will support this practice by requiring boards to provide a formal “preliminary notice” of a meeting of owners.

The notice would have to include:

• a call for anyone wishing to run for election as a director to notify the board in writing
• a call for materials (e.g., agenda items) from any owner wishing to include those materials in the formal notice of the meeting
• a request for information from “non-leased voting units” in the event of a vacancy on the board in the position reserved for voting by the owners of those units
• any other items that are set out in the regulations

The board would not have to include all suggested items in the final agenda, apart from those required by regulations.

A board would have to give preliminary notice at least 20 days before sending out the actual meeting notice.

Meetings requested by unit owners

One pillar of accountability in condo communities is the owners’ ability to call special owners’ meetings – known as requisitioned meetings – to address issues of concern, including proposals to dismiss board members.

Requisitioned meetings are part of the democratic process set out in the current act. For example, if owners wish to vote on a rule proposed by the board or to vote on certain modifications the board wishes to make to common elements, they have to requisition a meeting.

They are sometimes used to compel board members to account for their actions when owners believe that they are not acting in the best interests of the corporation. For example, if owners wish to call a meeting to vote for the removal of a director, they can requisition a meeting for that purpose as well.

At present, a board must call and hold an owners’ meeting if at least 15% of owners sign a petition (e.g., the requisition) calling for a meeting.

The Stage 2 report recommended keeping the current 15% threshold. But it proposed that the process for convening meetings and assessing the validity of a requisition be revised in the interests of clarity, speed and fairness.

The amendments will make it easier for owners to call a condo board meeting to deal with an important matter. It would also spell out procedures that the board would have to follow in the interests of transparency and communication.

The requisition application would have to be submitted on a standard form that would provide specific information to minimize any confusion about the process. The process following the submission of a requisition is also set out in the act, including time periods that the board members and those owners requesting the meeting would have to follow.

Voting at meetings

The act paves the way for wider owner participation at meetings by enabling a condo corporation to pass a by-law allowing votes at meetings to be cast by telephone or electronically.

Electronic delivery of notices

The act allows boards and owners to use electronic communication methods, if owners agree to receive formal notices in electronic form, such as emails. The corporation would be required to keep a record of these communication methods.

Achieving quorum at meetings

The Stage 2 report expressed concern that many owners do not attend condo corporation meetings, making it difficult to achieve quorum.

The amendments will relax quorum requirements for mandatory meetings.

At turnover and annual general meetings, quorum would be reached with:

• 25% of owners at the first and second attempts to hold the meeting
• 15% of owners at the third attempt and any subsequent attempts

Boards could not add an item requiring a vote to the agenda on the second or subsequent attempts to hold a meeting.

A corporation could pass a by-law mandating a 25% quorum, regardless of the number of attempts.

The regulations will also be able to set the quorum for any meetings where owners of “non-leased voting units” are exercising their right to vote in respect to a reserved position on the board.

Proxies

If a condo owner is unable to attend meetings but still wants to have a role in the decision-making process, he or she may complete a proxy form. This gives another person who plans to attend the meeting (i.e. the proxy) the power to vote on the owner’s behalf.

The Stage 2 report recommended that proxies be standardized to avoid tampering and misinformation. Regulations under the act set out a new standard proxy form.

Examination of records

The Stage 2 report set 3 main goals for effective record-keeping by condo corporations. It recommended that the law should:

• set clear requirements for how long records must be kept
  • financial records for at least 6 years
  • other records as determined by regulations and by-laws
• ensure that corporate records are easily accessible
• ensure that personal privacy is protected and records are not used for inappropriate purposes

Regulations will set out procedures:

• for requesting access to corporation records
• for a board’s responses to such requests
• fees for examining and copying corporation records
• standard forms for such requests

Non-leased units

Currently in condo properties where at least 15% of units (referred to as “owner-occupied units”) have not been leased during a certain time, one position on the board must be reserved for election by the owners of these type of residential units only.

This was designed to ensure that owner-occupiers have some direct representation on the board, especially in buildings with a large population of renters and absentee landlords.

Under the act, the owner-occupied elected position on condo boards would be retained in the interests of protecting an owner-occupier minority in largely rented buildings.

However, for greater clarity and accuracy, this type of unit would be renamed as a “non-leased voting unit.” This is because this type of unit would be characterized on the basis of whether it was leased during a certain time period and not whether the owner actually occupies the unit.

In addition, this reserved position would no longer be mandatory. Specifically, corporations would have to reserve the position only if the “non-leased voting unit” owners are a minority in the corporation and at least 1 of them requests an election of the reserved position on the board.

Director qualifications and education

The review process found that many condo board directors lack adequate skills for the job. In addition to training mentioned elsewhere, the Stage 2 report recommended that condo board directors comply with several extra conditions, such as disclosure and training rules.

Under the amendments to the Condominium Act, regulations will establish disclosure and training requirements for directors. The amendments will also make director qualifications and disqualifications consistent with other corporate statutes.

Condo manager licences

The review of the Condominium Act heard that while most condo managers and management firms are competent, fair and honest, this is unfortunately not always the case.

Some participants complained about managers and firms that were disrespectful, unresponsive or dishonest.

Currently, Ontario has no minimum requirements for setting up a condo management firm or working as a condo manager. The Stage 2 Solutions Report urged the province to set clear, mandatory standards to ensure a reasonable level of competence and integrity.

These recommendations are addressed through the new Condominium Management Services Act, 2015 and regulations under that Act that will set out:

• a compulsory licensing system for condo managers and management providers
• training and education requirements for managers
• a code of ethics for condo managers and providers

A new administrative authority, referred to here as the Licensing Authority, would administer the Condominium Management Services Act.

Licensing Authority structure

Like the Condo Authority, the Licensing Authority would be an administrative authority.

The Licensing Authority would be an independent, self-funded, not-for-profit corporation. Its employees would not be members of the Ontario Public Service.

To ensure accountability and transparency, the Licensing Authority would:

• have an administrative agreement with the Minister
• be required to publicly disclose certain information
• be subject to oversight by the Auditor General

Licensing Authority funding

Ontario would provide start-up funding for the Licensing Authority.

After the initial start-up funding, the Licensing Authority would raise revenues from licensing fees collected from individual managers and management firms.

The Licensing Authority would set its own budget and fees in accordance with the processes and criteria approved by the Minister of Government and Consumer Services.

Condo manager qualifications

The Condominium Management Services Act, 2015 will authorize the regulations to set specific qualifications to be a licensed manager. The process for obtaining a condo manager licence would be largely set out in the act’s regulations.

Regulations will also determine any transition periods for condo managers to comply with the new licensing requirements.

Anyone convicted of an offence under the act could be liable to a fine of up to $50,000 or imprisonment of up to 2 years less a day. Management firms could be liable to a fine of up to $250,000. The Licence Appeal Tribunal would hear appeals against licensing decisions of the registrar.

Condo manager code of ethics

The Stage 2 report recommended a code of ethics for managers. The Condominium Management Services Act will authorize the Minister of Government and Consumer Services to establish a code of ethics through regulations.

A disciplinary committee could review alleged code of ethics violations. Its decisions could be appealed to an appeals committee.