An Array of New Authorities
CONDOMINIUM MANAGER LICENSING
Schedule 2 of Bill 106, when in force, becomes the Condominium Management Services Act, 2015 (the “CMSA”).
Under the CMSA, the government - or, more precisely, the "Lieutenant Governor in Council," which essentially means the Lieutenant Governor of the province on the advice of the Cabinet - will establish a not-for-profit corporation (that is not a crown corporation or crown agent, but remains accountable to the government for all its activities) as the “administrative authority” to oversee the licensing of persons wishing to act as condominium managers in Ontario. This administrative authority is not to engage in its own commercial activities and may be replaced by direct government control if necessary to ensure the intent of the CMSA is carried out.
A board of directors of the administrative authority will be appointed by the government. That board, in its turn, is empowered to appoint a Director and Deputy Directors, a Registrar and Inspectors, and both a Discipline Committee and an Appeals Committee.
As such titles ultimately suggest, the authority will have power not only to license and track the licensing of condominium managers, but will also be able to perform inspections to determine their compliance or non-compliance with the CMSA, and to receive, investigate and act on complaints, including through formal disciplinary procedures.
Disciplinary action may include sending a warning letter to the offending manager, requiring him or her to take certain educational courses, or even revocation of the manager’s license (which is, in effect, prohibiting him or her from being employed as a condominium manager in Ontario). Decisions of the Discipline Committee and the Appeals Committee will be made available to the public.
The Condominium Authority (CA) is another not-for-profit corporation to be established by the Lieutenant Governor in Council. Rather than possessing its own statute, the authority and duties of the CA are set out in and under the changes to the Condominium Act, 1998 (the “Act”) made in Schedule 1 of Bill 106.
The full scope of the CA’s duties is not set out in the Bill, but will be defined further in an agreement between it and the government. The primary intent of the new sections of the Act added by Bill 106 appears to be that the CA will help to ensure compliance by condominium corporations, boards and other stakeholders of Ontario condominiums, through the provision of educational resources and administration of the Condominium Authority Tribunal. The CA may also set up advisory councils to provide information or advice to the government regarding condominiums in the province and may make recommendations to the government on legislative amendments it considers to be appropriate.
The expenses of operating the CA can be covered by a combination of "user fees" for particular services and assessments of contributions to be paid to it by condominium corporations (similar in principle to the way that common expenses are assessed against individual unit owners). The anticipated amount of such an assessment is not set out in Bill 106. Instead, it provides that assessment processes and criteria are to be established by the CA with government approval, which then must be disclosed publicly on the CA's website. The CA may exempt certain classes of condominium from assessments or provide that one or more types of condominium are assessed differently than others. Therefore, speculations about the fees being, effectively, in the range of $1 to $3 per condominium unit per month are simply that – speculations. It is to be hoped that such assessments would not exceed such a range, but there is nothing in Bill 106 that restricts them to it.
CONDOMINIUM AUTHORITY TRIBUNAL
One of the duties of the CA is to appoint the Condominium Authority Tribunal (CAT). The CAT is one of the most important new changes to the Act. The intent is to establish a simpler, less costly and effective mechanism for resolving some of the most basic condominium disputes amongst condominium corporations and unit owners, occupants or mortgagees, without requiring the parties to engage in more formal legal proceedings, where possible.
The fact is, though, that the CAT does not entirely replace those processes. Only a limited range of issues can be dealt with by the CAT. This range is not yet defined, since this is to be set out in the regulations that are being drafted to accompany the changes made by Bill 106. However, we do know that issues relating to ownership/title issues, easements, occupiers liability, sale of common elements, liens, amalgamation or termination of a condominium, are outside of its authority. Further, although the CAT will have broad powers to do such things as issuing orders for compliance and/or that costs, compensation or even penalties be paid by one or more parties, within its arsenal of dispute resolution options is the authority to require that the parties engage in some other form(s) of dispute resolution, such as mediation, conciliation, negotiation or arbitration. Thus, the CAT – while a significant step in a positive direction – is not ultimately going to be a kind of “one-stop shopping” venue through which every issue can or will be resolved.
One of the subjects we will cover in this blog in the future is exactly when and for what purposes – and with what possible results – condominium stakeholders will be able to rely on the CAT to deal with their disagreements.
In addition to the CAT, the CA will be empowered to appoint a Condominium Registrar, whose duties will include receiving regular filings and fees from condominium corporations. Amongst these are an “initial return”, a “turn-over return” and “annual returns”, which will set out the condominium’s board membership and whatever other information the registrar (or regulations under the Act) will require.
The information gathered by the registrar is to be made available to the public by electronic or other means. In addition, the registrar may issue certificates that, amongst other things, indicate the status of a corporation’s filings and identify its directors, officers and managers.
All in all, these proposed changes create a lot of additional employment and somewhat costly (and potentially cumbersome) infrastructure relating to condominium governance, but all for the good purposes of,
- facilitating the provision of essential information to consumers and other interested parties,
- improving the options for dispute resolution between condominium stakeholders, and
- increasing the accountability of condominium managers and boards to the owners who employ or elect them.
It remains to be seen how well these new systems and structures will work. We suspect that this will depend a great deal on the good faith and reasonable care applied by those who are appointed to, and who seek to use, them. As mentioned above, these subjects will be considered in more detail in later entries in this blog.