Navigating the New Bill (Part 3 of 3)
Not only can reading Bill 106 feel like traipsing through a muddy stream on a rainy day, it can also feel like having to dive back into that stream once you have finally escaped.
In Part 1 of this guide to reading the Bill, we provided an outline of the Bill’s structure and basic contents. In Part 2, we explained how its formatting affects its reading. In this Part 3, we explain how the Bill sometimes turns in on itself.
PART 3 – TWISTS, TURNS & DANCES WITH WOLVES
1. About when it comes into effect
One of the primary purposes of Bill 106 is to bring into effect changes to the Condominium Act, 1998, and to other legislation, at one or more particular points in time. Coordinating that timing imposes some complexity on the Bill. There are numerous places in Bill 106 where the coming into force of all or part of this Bill or other legislation is mentioned. The basics we should all know are these:
1. The three brief sections that comprise the body of Bill 106 will come into force on the day it receives Royal
Assent. That is the day on which it has been finalized and fully approved by parliament and is approved
by the Lieutenant Governor of Ontario.
2. For the most part, Schedules 1 and 2 of Bill 106 will each come into force on a day to be named by
proclamation of the Lieutenant Governor of Ontario, which might or might not be later than the day the Bill
receives Royal Assent, and which might or might not be on the same day as each other.
In case the fact that the Bill and its two schedules might all come into force on different days is not enough to make you scratch your head, we also have to point out that there are several exceptions. For example:
- Certain sections of Schedule 1 (i.e., sub-sections 46(2) and 140(4), and sections 144-149 and 151-154) come into force at the same time that the Bill receives Royal Assent (which, as discussed above, could be before the rest of the schedule);
- certain sections of the schedules only come into force after other new legislation comes into force - for example, when Schedule 1 is proclaimed into force, the coming into force of section 3 of Schedule 1 will be deferred, if necessary, until the Not-for-Profit Corporations Act, 2010 has come into force;
- some sections of Schedule 1 and Schedule 2 apply only if and while other new legislation is not in force - for example, a change that Bill 106 makes to the Development Charges Act, 1997, in section 144 of Schedule 1, only comes into effect if Bill 73 – Smart Growth for our Communities Act, 2015 – has not yet come into force;
- certain sections of Schedule 1 and Schedule 2 apply or come into force, or do not apply or come into force, depending on the timing of the coming into force of other sections of Schedule 1 or Schedule 2; and
- sometimes some of these triggers are combined.
A good example of that last point, and of some of the resulting complexity, is the subsections to section 142 of Schedule 1. Subsection 142(2) provides that subsection 142(3) of Schedule 1 applies only if a section of another proposed statute has not come into force before subsection 1(12) of Schedule 1 is in force, while subsection 142(4) of Schedule 1 provides that subsection 142(5) of Schedule 1 applies only if that section of the other proposed statute has come into force before subsection 1(12) of Schedule 1 is in force. And the net effect of all that is just to effectively eliminate four words out of subsection 5(2) of the Condominium Act, 1998.
Confused yet? Welcome to the wonderful world of new legislation. The lesson to be learned here is that you simply can’t assume the whole law comes into force at once. It is necessary to review all provisions of the Bill to determine the timing of the effectiveness of any section on which you intend to rely.
2. About amending itself
In addition to changing other legislation, and in addition to differing triggers regarding when its sections will or will not come into force, Bill 106 has the additional oddity of sometimes amending its own provisions.
An example of this arises in section 81 of Schedule 2, which repeals section 55 of Schedule 1.
Section 55 of Schedule 1 repeals and replaces subsection 61(b) of the Condominium Act, 1998, which prohibits a condominium manager from being the corporation’s auditor. The new section merely improves the wording of the section by substituting “property of the corporation” with, simply, “property” (which is more accurate terminology).
So why would this section be repealed by section 81 of Schedule 2? Because, when Schedule 2 comes into force, it completely replaces section 61(b) of the Condominium Act, 1998, rendering section 55 of Schedule 1 both pointless and inaccurate.
The lesson here again involves recognizing that you have to read the whole of the Bill to understand the whole of the Bill. A helpful hint is to read it on a computer, not just on paper, so that you can make use of the search functions that help (though not always perfectly) to pull out every relevant occurrence of the phrase, term or section you are seeking to understand.
3. About not everything that is changed staying changed all the time
One further and last example of the weirdness of Bill 106 is that, sometimes, the changes to the legislation brought about by the Bill won’t apply all of the time. The following is an example of this.
Subsection 34(7) of Schedule 1 of Bill 106 repeals subsection 43(5)(h) of the Condominium Act, 1998, which presently requires a declarant to provide the condominium’s board of directors with a schedule setting out the standard unit definition(s) for a corporation within 30 days of the turnover meeting. This won’t be required anymore.
Subsection 152(2) of the Condominium Act, 1998, as currently written, also requires such a schedule to be included in the materials turned over to the condominium’s board after registration of a declaration and description creating a phase of a phased condominium.
Under Bill 106, section 126 of Schedule 1 repeals and replaces subsection 152(2) of the Condominium Act, 1998. In its new subsection 152(2), a new sub-clause ‘2’ states that amongst the things that the declarant must provide after registration of the phase, are the following:
Subject to the regulations, the materials mentioned in clause 43 (5) (h), as that clause
read immediately before the day subsection 34 (7) of Schedule 1 to the Protecting
Condominium Owners Act, 2015 comes into force.
So, in the future, when reading the Condominium Act, 1998, as amended, we need to keep in mind what subsection 43(5)(h) of the Act used to say before it was repealed by subsection 34(7) of Schedule 1 of Bill 106. (Unless or until, of course, the regulations change that again.)
The lesson here? Don’t throw out the current Act once Bill 106 comes into force – some of it will sometimes still apply.
4. Remember the Regulations
As a final comment, we note that, as the last example indicates, some (in fact, many) changes to the legislation are not even in Bill 106 – they will be in the regulations to be made under it. We are advised that the regulations are being drafted now. We hope to see them soon, because without them there is a whole lot in Bill 106 that remains murky and unclear.
The lesson in this case is not to rely too heavily on your assumptions just yet – we have to wait for the regulations before we truly know (in all respects) what the new law means.
Bill 106 is, at times, complex and convoluted, and you will sometimes need help finding your way through it. Following these kinds of convoluted trails through legislative muck is exactly what lawyers are trained to do. We hope our 3-part guide has given you some keys that make your reading of the Bill a little simpler; at the very least, we think we have given you fair warning of its challenges and pit-falls. Remember, we and other lawyers are here to help and to add confidence and clarity to your understanding and application of this new legislation once it (all or in part) comes into force. To adapt a popular slogan of today: Keep calm and read on.