Condo Adviser Episode 38: Tenants in condos

[MUSIC PLAYING] GRAEME MACPHERSON: All right, everybody. Welcome. Welcome. My name is not Rod Escayola. I'm Graeme Macpherson. I'm his plucky and more handsome younger sidekick. I'm your condominium lawyer with Gowling WLG and host at least for now until Rod gets out of court.

So he's currently held up. I expect we'll have him steering the ship again soon. But until then, you're stuck with me. Thank you very much, everybody, for returning to the Condo Adviser Webinar tonight, the second webinar of 2023. We're going to be tackling the topic of tenants and tenancies.

Tenants stand in a bit of a weird crossroads and condominium law. They're subject to the Condominium Act. They're subject to the Residential Tenancies Act. And that can result in some confusion about what their rights and obligations are.

Now, this can be a bit of an issue. Because as I'm sure we all know, tenants are very common. They appear to live in most condominiums, at least residential ones. So today, what we're hoping we can do is unpack some of the roles and obligations of the corporation, the owners, and the tenants and how these roles and relationships crisscross with courts, the landlord and tenant board, and the condominium authority tribunal.

And we're joined today by a fan favorite guest Debbie MacEwen, manager extraordinaire from CMG. Thank you very much for being with us, Debbie. And just as you were all getting used to me, Rod showed up in the nick of time to give his housekeeping speech, dressed in his finest robes. So with that, I hope you've enjoyed my hosting for the beginning. I'm sure everybody [INAUDIBLE]

RODRIGUE ESCAYOLA: You lasted four minutes, and you're now fired.

GRAEME MACPHERSON: Honestly, I'm drunk with power. I'm reluctant to give it up. But Rod is here in his best robe. So I'll hand the reins over to Rod. We didn't sink the ship.

RODRIGUE ESCAYOLA: But look at that. So good evening, everybody. And just for the record, it's not even my robe. I'm actually wearing Graeme's gown today because there was a bit of an unforeseen hearing. And so look at that. I fit in his gown. And as soon as the show goes on, I'll turn my camera off and change. So welcome, everybody. I'm sure you-- so, Graeme, did you do the housekeeping or not yet?

GRAEME MACPHERSON: We did not. So it's housekeeping time.

RODRIGUE ESCAYOLA: How about you do it?

GRAEME MACPHERSON: I do fun stuff. You do the boring stuff now.

RODRIGUE ESCAYOLA: How about you do it? I don't have my notes in front of me.

GRAEME MACPHERSON: All right, well, so some housekeeping notes, everybody. For one, as I said earlier, try to keep the chat alive. And I see some support in the chat for me. Thank you, everybody. Careful you're going to grow my head bigger than it already is.

But keep the chat alive. Feel free to post your comments, questions in there. Also, if you do have any questions and you don't want them to get lost in the shuffle, you can post them in the Q&A. We really do try our best to get to everything. Sometimes we can't get to it all. But we do appreciate you posting there.

Also, for those watching our webinar, we do need to start with our usual disclaimer. First, please note that whenever we do refer to legislation, we're going to be referring to Ontario legislation. Those listening from elsewhere will just have to adapt to what we say to their jurisdiction.

The information that we provide you is to the best of our ability. And it's accurate as of the date of this broadcast. So that's March 2023. Also, most importantly, please keep in mind that the information we're providing you tonight is general in nature and may not necessarily apply to whatever specific situation you're in. It's important for everybody to seek their own professional advice tailored to the facts and reality of their own situations.

Finally, please note that we are required to inform you that this session is being recorded. It will be uploaded to the Condo Adviser website. And you can get access to it by visiting condoadviser.ca and clicking the Webinar tab in the top right. We'll show that later. It can take a couple of days for us to get this up there. So don't worry, we will. Don't fret about that. It will be posted eventually. And with that, I think we can get into the meat and potatoes--

RODRIGUE ESCAYOLA: Hey, wonderful.

GRAEME MACPHERSON: And, Rod--

RODRIGUE ESCAYOLA: [INAUDIBLE]

GRAEME MACPHERSON: --you know what? I'm not going to give it back yet. Since I'm on a roll here, I'm going to go ahead and open the floor to you and Debbie who are actually tackling our first topic. And that's the landlord's obligations.

RODRIGUE ESCAYOLA: Wonderful. And you know what we're going to do, folks? We're going to do two things. We're going to have a survey on how well Graeme did. So maybe on a moving-forward basis, he'll be the host. And something else we're going to do next episode is we're going to ask one of you at home to do the housekeeping. I mean, we've been doing this for two years. So one of you will get the chance to do the housekeepings.

OK, so, Debbie, the first segment of this presentation is going to be divided in three. We're going to talk about the landlord obligations. We're going to-- and then we're going to talk about the tenant's obligations. And then we're going to talk about the condos obligation.

Because as I said recently, I mean, there's a bit of a dysfunctional love triangle between all of these individuals or all these entities. And they're not playing on the same field. And that's the issue. So let's start with the landlord, Debbie.

I don't know if Graeme already mentioned that you wear a couple of hats today. You are a manager. But you are also very involved in a residential tenancies. And so you have a lot of expertise in that field. And so let's start with the landlord's obligations in the context of a condo. What are they?

DEBBIE MACEWEN: The landlord has an obligation to-- firstly, when they decide they're going to become a landlord-- they've purchased a condominium, or they've lived in a condominium for years. And they've decided they're going to change their focus, move out, rent it-- they need to advise the condominium corporation that they have, in fact, moved; that they do, in fact, have a new address for service so the records of the condominium corporation are up to date at all times.

They need to ensure-- not all condo owners know this. But the Residential Tenancy Act also has a list of prescribed forms that must be used in Ontario. One of those is the lease. The lease form is a prescribed form. It is a mandatory form to be used.

And there is a box on that form that has to be checked if the rental property is, in fact, a condominium. And the landlord must certify in the lease form that they have provided the tenant with a copy of all rules and regulations and/or governing documents that could impact the tenancy or the use of the home as a rental property. And that is signed by the landlord. So in essence, they're signing off that they have provided the tenants with those documents.

RODRIGUE ESCAYOLA: OK, and so a couple of the capital sins here. Two problems, I think, that we encounter in the condo world-- well, maybe three. One of them is that if the landlord, as you just indicated, Debbie, does not give the governing documents to their tenant, that's going to be their first excuse. Oh, I had no idea that I wasn't able to roast a pig on my balcony. Had you given me the rules, I wouldn't have done that.

So the first problem we encounter as condo in the condo world is the tenants don't get the rules. So landlords give the rule. The second problem we encounter is that, as you just indicated, if you don't change-- if the landlord doesn't change their home address and continue to use their unit address as the address when we send letters or demands or notices, it's going to the rented dwelling. It's not reaching the landlord. So you, landlord, you have to update your address.

And the third one-- and this is one that we see all the time-- Section 83 of the Condo Act requires the landlord to advise the corporation within 10 days-- it used to be 30. But it's within 10 days the landlord has to advise the corporation that they've entered into a lease, or that they terminated the lease, or that they modified or renewed or whatever it is.

Maybe a bonus question, Debbie. Does the landlord have to provide a copy of the lease? Or can they provide information about it?

DEBBIE MACEWEN: So a lot of condo boards and condominium managers get hung up on the Form 5. There is no requirement in the Act for a landlord to provide the manager or the corporation with the Form 5. So the landlord has a choice. They can either provide the Form 5, or they can provide the signed lease agreement.

As a rental company owner, I always prefer to send the lease agreement, which is a better document, it gives more information-- start date, end dates, contact information for the tenant. And it's simpler for the landlord as well. It's not an additional form they have to complete. It's not an extra step they have to take. They attach the PDF, and they send it off. And they are compliant when they have done so.

RODRIGUE ESCAYOLA: OK, and maybe, Graeme, in the meantime, if you're able to find Form 5 on the web, maybe you can share your screen. So that's great. Moving on to the second block, we will talk about the tenants' rights and obligations.

And, oh, Graeme, double duty, while you're looking for the form on the net, you also have to tackle the next chapter. You're leading on that one. So what are the rights and obligations of our good fellow tenants? Are they second class citizens, or? What's going on here?

GRAEME MACPHERSON: All right, so tenants do have rights and obligations both vis-a-vis their landlord, the owner, and the condominium corporation I'll start with the easier one first from the purposes of our conversation. Tenant's obligations to their landlord will come from whatever their lease is with the landlord and the Residential Tenancies Act.

Obvious examples are things like making sure they pay rent and not damaging the unit or if there's any particular rules in the lease following those. But that's not something the condo is going to be too concerned about.

RODRIGUE ESCAYOLA: Right, so I'll stop you there. So this is-- what you've covered now is how to be a good tenant. And I think now, you're about to go how to be a good occupant.

GRAEME MACPHERSON: Exactly, that's a good way of putting it. Because the tenant's obligations as a tenant are those I've talked about. But as an occupant of a condominium, they have to abide by the Condominium Act, the declaration, the bylaws, and the rules. They are held to the exact same standard as any owner who's residing in a condominium.

And the corporation has actually a duty to ensure that all occupants comply with this obligation. I think it's worth noting too that the landlord and tenant board has actually acknowledged this obligation as well. I've got a quote here from a landlord and tenant board case from 2016 that just confirms that, "It should be noted that pursuant to the Act, the condo corp is entitled to make rules, including ones pertaining to pets," the example in that case.

"Further, the occupants of a condo building are expected to abide by a condo board rules and/or bylaws. An owner is expected to ensure that occupants of units abide by the rules and/or bylaws." So the landlord and tenant board is also aware of this obligation. But tenants are not able to breach the rules and do whatever they want and use the excuse, well, it's not in my lease.

RODRIGUE ESCAYOLA: Right, exactly. And I think as you alluded, the condo corp really doesn't care if someone's a good tenant. But we certainly do care a lot if the person is a good occupant because--

GRAEME MACPHERSON: Exactly.

RODRIGUE ESCAYOLA: Right, absolutely. Maybe one of the questions that I saw go into chat, people are saying, yeah, yeah, well, they're all gung ho about Section 83 obligations to provide information. But what can we do when an owner doesn't provide this information? So what kind of whip can we crack? I don't know if David or Graeme wants to tackle that quickly.

GRAEME MACPHERSON: I mean, I can jump in. It's the same whip you would crack if there's a rule about dogs being a certain size, if there's a rule about smoking, if there's a rule about Airbnb. They are reaching a requirement of the Act. And so that would follow the standard compliance process, whereby you would likely start with maybe a friendly letter.

And I think we'll get into enforcement a little later on. But you'd probably start with some communication. And if necessary escalate to legal. And if necessary, escalate to court.

RODRIGUE ESCAYOLA: Right, OK, do I move on to the next segment? Are you done with your slides?

GRAEME MACPHERSON: Yes, I am. And I can also stop the share. I'll just quickly show Form 5. I did find it. So here you go. Can everybody--

RODRIGUE ESCAYOLA: That's Form 5. Oh, look at that. This is before-- oh, I'm about to say something mean. This is before the CAO got to ugly our forms. That's an old form.

GRAEME MACPHERSON: Oh, that's the old one? Well, enjoy it [INAUDIBLE].

RODRIGUE ESCAYOLA: No, it's good. Yeah.

GRAEME MACPHERSON: The result of a Google search.

RODRIGUE ESCAYOLA: No, no, no, you got the right form. But that's before the CAO their university summer student to uglier forms. OK, anyways, moving on. I think I'm going to get a letter tomorrow from the good folks at CAO. I'm not sure. David, I'm going to turn to you for the third element of the segment. Because this is a triangle. What are the condo's rights and obligations? So we dealt with the landlord. We dealt with the tenants. Now, the condo.

DAVID PLOTKIN: Graeme, are you going to put the slides back up? Yeah, so same sort of thing with dealing with occupants generally is managing, controlling, administrating the common elements, ensuring compliance with the governing documents in the Act. The difficulty that comes with this is often in this triangle of a relationship.

Well, sometimes condos don't want to deal with tenants. It's not our problem. This is for the landlord to deal with. We're going to hear a lot today from Debbie and from the other panelists, don't take that approach because there's still the obligations that fall on to the condo as the occupier of the common elements and all the obligations to ensure compliance under the Act that do fall on to the condo that it needs to do on behalf of all the owners.

RODRIGUE ESCAYOLA: OK, let me just see here. Right, and maybe, Debbie, let's deal a bit with that. And you're going to have to wear two hats here. You're going to have to wear your hat as a manager but also as a landlord or someone from the landlord world.

The old saying that condos don't deal with tenants, I mean, that has very limited use, I think. And so how would you tackle it? What would be a healthier way of tackling that relationship?

DEBBIE MACEWEN: I guess I'm going to preface that by saying that that mindset makes me crazy. The fact that we can-- and some condominium managers do attempt to avoid doing their due diligence and their job because the unit is tenant occupied makes me crazy. It doesn't matter who lives in the unit.

If that individual is not compliant in any way, shape or form, you must communicate with that individual. You must let them know. The difference is you include the owner in those communications. So you can send the communication to the owner and cc the tenant or send a copy to the tenants by mail.

But both parties should be involved in communications, especially if there's an infraction or a rule violation. But if it's just a report of unit maintenance that's required, something that the occupants observed on the outside of the home, to say I'm not taking that report because you're not the owner is just not something that should be done.

We have an obligation to maintain the common elements. We have an obligation to enforce the rules. And we have to work with the individuals that make those reports until the relationship with the tenant goes bad. If the relationship goes bad, if they're hostile, if they're belligerent, if they're refusing access, if they're preventing you from doing your job, then we flip the switch.

And the owner-- the onus then goes to the owner. And the owner must deal with their tenant to make sure that they are compliant, they do provide access, et cetera. But at all times try working with the tenant first. It makes the job easier and eliminates the middleman that's going to have to do a lot of legwork to ensure that you can get your job done. And it just makes logical sense.

RODRIGUE ESCAYOLA: Right, and as you said, that is until things don't go very well. Let me just see if I can share my screen. Because at that point-- let me see if-- can I do this? Can I just like take over Graeme's screen? Mm, where's my-- yes.

GRAEME MACPHERSON: Only one way to find out.

RODRIGUE ESCAYOLA: There's only one way to find out.

DEBBIE MACEWEN: Rod, I notice in-- I noticed in the chat, somebody's mentioned property manager. So I guess I'm speaking because I am a residential property manager as well as a condominium manager. Many, many landlords are not managers. They are just homeowners that have become a landlord. So it applies to them as well.

RODRIGUE ESCAYOLA: Right, right, right, OK. And so what I find interesting is that while you're trying to-- first, I think what you said, Debbie-- you have to try to resolve the issue as you would with an occupant, but you've got to keep in the loop the landlord.

When the relationship with the tenant falls off its rails, then your relationship with the landlord changes slightly. Because while you need them as an ally, they become the target for the condo corporation because our tools are stronger vis-a-vis the owner. We can crack the whip at an owner. We can charge back the owner. We can deal with the owner.

And so what becomes difficult at that point in time is that you have to try to keep a relationship with the owner. But at the same time, you got to keep their feet to the fire. They have an obligation to take steps to deal with this matter. So I think now, the image of the relationship with the landlord in that case is this one.

I don't know. Am I sharing my screen? So during the day, on paper, you're fighting with the landlord. You're telling them that your tenant is a problem and we're going to do this and we're going to take you to court and we're going to charge you. But at the same time, you have to work with them in order to try to get to the resolution.

You need to give them information. You need to give them evidence. The owner needs to give you information, needs to give you evidence. And so it's an odd relationship, as I said, because you're fighting with the landlord. But at the same time, you have to be friends with Ralph at the end of the day to be able to get the information. Does that make sense?

DEBBIE MACEWEN: That makes perfect sense, yes. Typically-- I mean, what you see most often with a tenant condominium and landlord relationships, things that go south are typically rule interactions-- the tenants having parties, there's noise issues, backyards a mess. What have you. Oftentimes, the landlord-- if the condominium manager is experiencing issues with a tenant, oftentimes, the landlord is experiencing issues with the tenant as well.

Those kinds of tenants usually don't limit their problem creating to just the condominium manager. So oftentimes, you have a frustrated landlord who's trying to work with the condominium manager for a resolution with the tenant. But that landlord is hemmed in by the limitations given to them by the Residential Tenancy Act. Because they have to jump through hoops on that end as well.

So the very best strategy is for you as a condominium manager to give that landlord all the tools they need so they can have a strong and successful residential tenancy board filing to have a penalty or an eviction or some sort of sanction levied against the tenant via the RTA, typically get them out of the unit.

RODRIGUE ESCAYOLA: OK, perfect. Moving on to the next topic, I guess, at this point is we're going to talk about the collection of arrears. And I'm going to turn to you, David. And in this case, a minute ago, we spoke about how we can use the landlord to help us bring the tenant into compliance. But we can also use the tenant to help us bring the landlord into compliance if the landlord doesn't pay their condo fees. How does that work, David?

DAVID PLOTKIN: Right, so under Section 87 of the Act, there's specifically a mechanism that's set out there that if an owner is leasing out their unit to someone else and is in arrears of the common expenses-- so the units in arrears and it's the owner who's responsible for paying the common expenses, the corporation can send a formal notice to the tenant requiring the tenant to pay their rent to the corporation directly to help at least to the extent of the common expenses.

So if their rent is more than the common expenses are, which I would think typically, it would be. If you're a landlord, you want to make a little extra so you can cover your expenses. At least that delta needs to be sent over to the corporations. The corporation would say, these are the common expenses payable. You must pay it to us on a monthly basis. Here's where you pay it to.

And interestingly, under Subsection 5 of that provision, this actually ranks, again, in priority to anyone else who might have a claim over those rental arrears-- that rent. So sometimes you might have a judgment debt. So you might have other things that allow you to take funds away from a tenant's rent. But the corporation gets the ability to send that notice and get that money paid into them directly to help pay off the arrears for the owner.

RODRIGUE ESCAYOLA: Right, and the tenant that does-- maybe you said that. But the tenant that does pay the corporation towards the arrears is not in default of their own lease.

DAVID PLOTKIN: Right.

RODRIGUE ESCAYOLA: Right? That's as if they had paid the rent. OK, a good question that came up from a David C. "Could we have a different set of rules for owners and tenants? For instance, could we say owners can have dogs but tenants can't have dogs?" And I mean, this is a minefield. This is a beautiful question. I love it. And we're chatting on the sideline with Graeme. And he says, oh, I wonder if that would be oppressive. And the reason is, yes, it's oppressive. But, Graeme, you figured out that tenants can't bring an oppression claim. So there we go. It's a Wild West out there.

To answer that question, David, I would say this, you can't really have two sets of rules unless the rule is specifically applicable to the concept of tenancy. So you could have a rule that would regulate a tenancy. But you could not have a rule that would be owners can be noisier than tenants and tenants can smoke but landlords can't smoke. You have to have the same set of rules for both.

I assume that the person that could advance the oppression claim in that case, if you had a rule for your second class citizen tenants, I think the person that could bring that oppression claim would be the landlord, the owner and say, well, how is it that my tenant can't use the barbecue? So you can't really have a set of rules that differs unless it's expressly and specifically about the tenancy, as I said, like putting a minimum lease period kind of thing.

OK, so we did this. I don't know. Do you want to say a word or two about short-term tenancies? I think it's a good segue into that, David.

GRAEME MACPHERSON: That was a good segue.

DAVID PLOTKIN: Yeah, I didn't have too much on that more than just to say that as we all know, it can be prescribed and limited in a number of different ways. And there's a lot of-- there's a lot of debate going on about how to do that. And I don't have too much more to add on that. I don't want to take up all the time. But yeah.

RODRIGUE ESCAYOLA: And I'll raise a good point. He says, we keep flipping between landlord and owner. And it's kind of confusing. So we're going to say landlord/owner from this point forward. We're going to have to try to say that. Because, obviously, you're right. Sometimes we refer to them with one way. And it may be confusing. So let's try to stick to that.

Debbie, speaking of having different rights applicable to landlord and tenants, I'm looking at the agenda. Today may be the first time that we're going to run out of things to talk about.

[LAUGHTER]

This has never happened. That's because we don't have Jason on the line. Everybody, don't tell him I said that. OK, so, Debbie, speaking of different rights applicable to tenants, what about the AGM? Do we have different rules applicable to landlord owners versus tenants? Can tenants attend an AGM, for instance?

DEBBIE MACEWEN: Yeah, tenants can attend an AGM as long as the owner of the unit that they occupy or another owner of the complex gives them a proxy to do so. Certainly, [INAUDIBLE] would be welcome to attend the AGM. I also, Rod, want to add this.

I had a condominium that I managed for a significant period of time that had a tenant as the president of the board for 10 years. Their bylaws allowed for it. And she was an asset to the corporation, to say the least. So not all tenants are bad.

RODRIGUE ESCAYOLA: Well, of course not. But you know what? You bring a good point. And we don't have that in the agenda. But that's a good question. Can a tenant run for the board? Does one of the two twins want to tackle that?

GRAEME MACPHERSON: The lawyerly answer of, it depends. So the standard answer is if the bylaws don't say anything about this, yes. There's actually surprisingly little requirements of who can run for the board if the bylaws don't say anything about it. You have to be over 18. You have to not be a criminal. You have to be sane.

So it doesn't matter if you are a tenant or even an owner necessarily. You don't even have to-- frankly, you don't even have to have anything to do with the corporation. But some corporations like to tailor their bylaws such that only people who own units can be board members or only people who own and reside can be board members.

So there's no one size fits all answer to this. When in doubt, always check your bylaws. It's usually in the corporations first bylaw, their operating bylaw. But sometimes there are specific ones about board qualifications as well.

RODRIGUE ESCAYOLA: Right, and what I've often seen as well is where the bylaw provides that only one of the seats can be occupied by a nonowner, but all the other seats have to be occupied by owners. So I mean, again, as Graeme just said, check your bylaws. Usually, the operating one. Maybe it's been modified later.

OK, so that was a good question, Debbie. Good point.

DEBBIE MACEWEN: Well, I want to-- I should say this. Rob, there's a lot of these-- a lot of condominium corporations that are heavily rented that have smaller condos, lots and lots of tenants, lots of long-term tenants. And some of these corporations struggle with getting people to come on the board. So opening up a window there to allow one seat to be occupied by a tenant is not necessarily a bad idea.

RODRIGUE ESCAYOLA: Yeah. No, I agree. And I know of a condo corp here close to where I live. They have a tenant on the board. And I mean, he's working like six directors. So I mean, I'm always puzzled a bit when there's that love-hate relationship between the owners who occupy their units and the tenants, as if the tenants were always bad people that didn't care about the environment where they lived. And so I don't think it's always true.

So I'm going to turn to you, Graeme, then. Next question, we're in the category, now, folks at home-- we're in the category where we're analyzing the different rights that apply to owners, landlord versus tenants. And so what about accessing records, Graeme? Can a tenant access records?

GRAEME MACPHERSON: I'll back up the bus a little bit. The process to access records is the same as the process to deal with complaints of nuisance, pets, parking, and storage. And for those who have been watching our webinar, you'll know that that is operated through the Condominium Authority Tribunal or the CAT. And the CAT's rules set out that only owners mortgagees and condominium corporations can commence applications before them.

So that means that actually the answer is no, tenants do not have a right to demand records of a condo in the same way that an owner does. Along the same vein, tenants are not able to commence CAT applications. So that does put tenants in a bit of an awkward spot if they are suffering from an issue of nuisance or they are feeling like a pet below them or above them is barking and causing them problems.

It's on the landlord/owner to bring that CAT application. I think it's worth noting, though, that tenants can sometimes be the cause of nuisance or parking issues or pet issues. So they can be added as respondents in CAT applications.

Just because they can't start them doesn't mean they can't be brought into them. But please do note, if you do start a CAT application about nuisance or something and you add a tenant as a respondent to that case, you have to also add the owner/landlord of the unit. If not as a respondent, then at least as an intervener.

RODRIGUE ESCAYOLA: OK, so I think you've tackled the two topics here at the same time. So one of them, I think you tackled the CAT applications and whether a tenants can commence one. And I think the answer to that is no, right?

GRAEME MACPHERSON: Yeah.

RODRIGUE ESCAYOLA: And if you, the condo corp, are going to commence a CAT application against a tenant, for sure, you want to include the owner. And I think that's-- of course, that's a very safe and sound strategy. There was a case not too long ago at the CAT. I think it involved a noise issue. And the unit above-- it was a sad story.

The unit above them had all sorts of medical equipment to assist with a heavily handicapped kid that needed help to breathe into this and to that. And the unit below felt that there was too much noise. And what was interesting about that case is that the unit below sued the condo corporation.

And nobody brought the tenant into the equation. And it was very difficult to determine whether or not there was noise to the level that it became a nuisance. OK, and you also talked about access to records. Tenants are not allowed to access the records. Only owners and mortgages are allowed.

GRAEME MACPHERSON: Exactly.

RODRIGUE ESCAYOLA: Yeah, and, in fact, there's a case-- I keep saying not too long ago. But that's because I'm old. But there's a recent case where the owner commences CAT application to access records but then moved out-- sold and moved out and then disqualified himself from being able to access the records because they were no longer an owner of the corporation.

So if you're going to stir the pot, you need to have your feet in it. OK, moving on, enforcement involving tenants. So this is what-- we said we would tackle that. So we need to enforce our rules, our bylaws, our declaration. But now, in this case, we need to enforce it against or vis-a-vis. We need to bring a tenant into enforcement.

And so, Debbie, again, you're going to wear your two hats. I'm going to first ask you to put your manager's hat, your condo manager's hat on. And how would you-- like, step by step kind of thing. And I know we touched upon it a bit earlier. But how do you tackle this? Maybe if we use an example, there's a tenant that's quite noisy. How do you tackle it from the manager's perspective?

DEBBIE MACEWEN: Oh, I could give you the long answer. But I won't. So first of all, you need to determine if the noise is, in fact-- I've had recently an owner complaining about noises because the tenant-- or the owner above him has a different lifestyle. He works night shift.

So he comes home and makes food. So living noises are very different from noises that are a nuisance. So we typically will ask the individual that's complaining about the noise to describe it, to record it, to keep some log so we can establish if there's a pattern.

We will send a first notice or a warning to the individual that the complaint has been made about, advising what the complaint is. If it continues and we deem that it is beyond normal living noises, the second letter will go out.

RODRIGUE ESCAYOLA: That's right.

DEBBIE MACEWEN: And then the final letter will be lawyer.

RODRIGUE ESCAYOLA: So let me stop you there. So you're doing the three strikes, you're out. That's fantastic. Are you copying the landlord owner on all these letters?

DEBBIE MACEWEN: Absolutely.

RODRIGUE ESCAYOLA: Yeah, OK.

DEBBIE MACEWEN: Absolutely.

RODRIGUE ESCAYOLA: And then let's say it doesn't really work. How do you get the landlord to side with you? I guess when we--

DEBBIE MACEWEN: So typically--

RODRIGUE ESCAYOLA: Go ahead.

DEBBIE MACEWEN: Yeah, so typically, the landlord, when they are advised in the second letter that the next letter will cause them to incur legal fees, they come on side quite quickly. Generally, they then want assistance often because they're having issues as well. And they don't want to pay the legal fees.

If we have to send that third letter from a lawyer and the legal fees go on the owner's account or they're charged, absolutely, they are taking steps on their end to make sure that they are mitigating their losses. You're going to want me to talk about what those steps are, aren't you?

RODRIGUE ESCAYOLA: Sure

DEBBIE MACEWEN: [LAUGHS] OK, and most people aren't aware of this. We see it from the condominium manager perspective. We're sending these three strikes, you're out letters. But as the landlord/owner on the other side, they have a process that they must adhere to in terms of compliance with the Residential Tenancy Act.

And the first step in that process is to give their tenant what's called an N5. Again, it's another prescribed form. It allows the tenant seven days to correct the issue that's been brought to their attention, whether it be noise, barking dog, smells, what have you.

If they do not-- if the noise or the issue goes away within seven days, on the eighth day, there's been no further complaints, no other issues, then the matter is considered resolved. However, if there's another noise complaint, the same issue within six months of that first N5 and a second N5 is issued, and the landlord/owner can immediately apply to the tribunal for a hearing date for an eviction.

It could take a year for all of this process to play out. The tribunal is backlog at least 10 months. You cannot evict without a hearing. You can attempt to get your tenant to sign an N11, which is an agreement to vacate the unit. You can offer them compensation, if they sign the N11 and get an agreement to vacate the unit on the specific date.

But all of that to say that it's not an easy process for the landlord/owner in terms of the Residential Tenancy Act and what they have to do to secure an eviction or compliance. As a condominium manager, what I like to see is that the owner/landlord is working to get the matter resolved, is taken the necessary steps. And I will give them any document that I need to to help them along the way. So that's the process. It's a lengthy one.

RODRIGUE ESCAYOLA: Right, Graeme, I wonder if you can put on the screen, the N11 form. I'd like to see if the summer student that worked at the CAO also had a stint at the LTB, see if they ugly their forms over there.

GRAEME MACPHERSON: I think we can track that down. Give me a moment.

RODRIGUE ESCAYOLA: OK, perfect. In the meantime-- so, Debbie, I think you also covered a bit the landlords' perspective and very well, actually. So they have to follow their own process. And I think what's really important for landlords on the line is you want to play ball. And I think either David or Graeme is going to speak about that later.

But the CAT and the tribunals, the courts don't look favorably on a landlord that says, well, that's not really my problem. This is a condo issue. Debbie, as the condo manager is all excited, let her handle that. Oh, and while you're at it, Graeme, if you can look for a N5-- Jordan says that that one is more exciting. I'm not sure why. We'll find out. What's the--

GRAEME MACPHERSON: All right.

RODRIGUE ESCAYOLA: --Form N5, Debbie? Do you know?

DEBBIE MACEWEN: There are several different reasons that you can use an N5. So you can use an N5 to put your tenant on notice if there's a noise disturbances, rules that are being broken, damages to your unit. I think overcrowding is another box that you can check.

All of them allow for seven days to become compliant or correct the issue that they're being put on notice about. The first N5 gives a 20-day termination time period. So either correct the issue or move out of the unit within 20 days. Nobody moves out of the unit. They don't correct, you can apply to the board to secure a hearing date for an eviction.

But the N5 is one of the most complicated forms that exists with the prescribing--

RODRIGUE ESCAYOLA: Hey, wait a second. Have you seen-- have you seen--

DEBBIE MACEWEN: Oh, no.

RODRIGUE ESCAYOLA: No, have you seen a proxy lately? Like, what are you talking about?

DEBBIE MACEWEN: Oh, no, the proxy is horrible. [LAUGHS] But RTA Form 5, horrible, horrible, horrible form. Very confusing.

GRAEME MACPHERSON: Yeah, I understand. I also have the displeasure of working with this form.

RODRIGUE ESCAYOLA: Yeah, so Form 5 then is for nuisance and breaking things. And the one that will--

GRAEME MACPHERSON: Here's that 11.

RODRIGUE ESCAYOLA: N11 is for what? It's for noise.

GRAEME MACPHERSON: That's for an agreement that you would have your tenant sign that--

RODRIGUE ESCAYOLA: [INAUDIBLE]

GRAEME MACPHERSON: --if leaving the lease early.

RODRIGUE ESCAYOLA: Yeah, well, nobody--

DEBBIE MACEWEN: [INAUDIBLE]

RODRIGUE ESCAYOLA: Yeah, nobody ever signs that.

DEBBIE MACEWEN: Yeah, the condos have an app for you.

GRAEME MACPHERSON: [INAUDIBLE].

RODRIGUE ESCAYOLA: Yeah.

DEBBIE MACEWEN: Yes, exactly.

RODRIGUE ESCAYOLA: Yeah. Good luck with that.

DAVID PLOTKIN: [INAUDIBLE], I negotiated one of those recently. It can be done.

DEBBIE MACEWEN: If you show up with money. If you give them-- if you show up with a money order for a month's rent, sometimes, they'll sign it.

DAVID PLOTKIN: Or if the tenant wants to leave the lease earlier than the term provides. And you then want to get the landlord some sort of payout instead of forcing them to stay. You can also be used on that angle, right?

DEBBIE MACEWEN: Yeah. Exactly.

RODRIGUE ESCAYOLA: OK. So--

GRAEME MACPHERSON: Again, these aren't really forms that the condominium is probably going to be dealing with directly. But these are more the types of things condominiums going to expect an owner if there's an issue with compliance going on. These are the types of things the condominium is going to expect an owner to start working on.

RODRIGUE ESCAYOLA: Right. You raise a very, very valid point. We ventured outside of our comfort zone here with these forms a bit. But you're absolutely right. At the end of the day, that's really for the landlord to deal with that.

Before we run out of time, now we're back to our usual, we're going to run out of time. Yeah. So I'd like to cover the jurisdictions of these three bodies that are, in fact, regulating this dysfunctional love triangle.

So I'd like maybe to get a sense of what's the jurisdiction of the Residential Tenancies Act or the Landlord Tenant Board. And what's the jurisdiction of the CAT? And what's the jurisdiction of the Superior Court of Justice?

So we'll start with you Graeme, the RTA.

GRAEME MACPHERSON: So for the RTA, we've gone into it already. But it governs the relationship, the direct relationship between landlords and tenants. And so the condominium doesn't really have a place there.

Landlords slash unit owners can apply to the Landlord Tenant Board to evict their tenants. That can be for a variety of reasons like noncompliance with the lease, damage, non-payment of rent, dangerous conduct, et cetera.

And landlords can apply also if tenants aren't obeying condominium rules, and that's causing the landlord problems vis a vis the corporation.

As we've said, corporations don't apply to the landlord tenant board, but they can encourage slash require owners and landlords to do so. And it's also useful for if the owner or landlord does apply to the board. The corporation can assist. They can provide documents to help beef up the application and make its chances of success as good as possible. But it's not actually going to be running that ship.

As Debbie mentioned as well, the landlord and tenant board is very, very busy, very, very backlogged, and so wait times can be quite significant, even in urgent cases.

As for what the role of the CAT is in all of this, the CAT does not actually have jurisdiction to order evictions. So even if we're dealing with a case of nuisance or a pet problem or something like that that is in the CAT's jurisdiction purview, the act tells us that the tribunal will not make orders requiring a person to vacate a property permanently.

So what the CAT can do is make compliance orders that thou shalt follow this rule, but it can't order eviction.

DAVID PLOTKIN: And the CAT-- and the cat make an order requiring a person to vacate a property temporarily?

GRAEME MACPHERSON: I--

DAVID PLOTKIN: I have the same question, actually.

GRAEME MACPHERSON: That's interesting.

DAVID PLOTKIN: I don't think so but I just-- I don't like-- I mean, the wording of the act is that, but I don't think they have injunctive powers in any way.

GRAEME MACPHERSON: I don't think they can either mandate [INAUDIBLE] the way to cool off.

RODRIGUE ESCAYOLA: This is why we have David on the team. He's going to find a way. If there's a David, there's a way. OK. Fantastic.

And what's interesting, and I'm not sure who's going to tackle this. Is it later when we talk about the current legislation versus what-- yeah, that's a bit later in the agenda.

DEBBIE MACEWEN: OK. Let me get rid of that.

RODRIGUE ESCAYOLA: Yeah. OK. So what about the Superior Court of Justice? When do we go to the Superior Court of Justice? David.

DAVID PLOTKIN: If things like section 117, dangerous circumstances or urgent matters. Any time you go to Superior Court on a tenancy issue, the court immediately gets nervous and doesn't want to hear it. So you really need to frame your application or action in a very specific way, either as 117 or 135 oppression.

We're going to talk about what the act provides for and will not provide for in the future. But it's-- you can't just go to court for every small thing and frame it as something that it isn't. If it's the residential tenancies issue, the court is going to punt you back and say, I can't deal with this.

RODRIGUE ESCAYOLA: Right. So if-- folks at home, if you're getting a bit confused about which court to go to, I'm going to say this. If you're the condo corporation, you never go to the residential tenancy-- the Landlord and Tenant Board because you are not a landlord. So you never go-- that's really not your sandbox. You can't deal with that.

You are then left with going to the CAT or going to the Supreme Court of Justice. The CAT right now involves nuisance, records, parkings, pets, lockers. If you fit in one of those categories, you go to the CAT. If you don't fit in one of those categories, you go to the Superior Court of Justice.

And as David said, usually, the Superior Court of Justice deals with liens, dangerous conduct, and so on and so forth, oppression. And I think eventually, the plan is to wean off our good tribunals from the fun of a good litigation. I think the plan eventually is to have a CAT that will be a one stop shop. We'll see.

OK. Termination of leases. And I think Graeme, you just indicated that the CAT will not terminate a lease. OK. So-- and we know that the landlord and-- the Landlord and Tenant Board does have the power to terminate a lease, but we as the condo, we can't go to that party. We're not invited.

So David, help us understand maybe, because I know there's a change-- an upcoming change under the Condo Act. Right now, there's a power to terminate, at least, but it's complicated.

DAVID PLOTKIN: Yeah. So I think we put it up on the slides. But the--

GRAEME MACPHERSON: Yeah, I'll get it back up there.

DAVID PLOTKIN: Right now, it's an implied right that exists and has been used under an oppression remedy. It doesn't really say specifically what you can or can't do. But because an oppression remedy is so broad and liberal and the court can do whatever is fair or just in the circumstances, it's been used in order to grant eviction orders.

With the new act, there's a-- the provision that will eventually maybe be turned on or not. There's a provision in there that specifically deals with removal of an owner and expressly does not allow the court to remove a tenant. And it says, you must go through the Landlord Tenant Board.

So this has caused some consternation and concern because it's taking away a power of a court that was there, even if it not expressly so, and saying, if it's a landlord tenant thing, it's got to go through that tribunal. And the theory behind that is, you can't have two-- there's one stream or there's another stream. You can't pretend to be a tenant board one day and a court another day, and vise versa.

So when that gets turned on, there might be some questions about, well, what about in those urgent circumstances where you need an emergency eviction or you need a restraining order, or you need some temporary injunctive relief. And I think that's going to raise a lot of questions about how to go about dealing with that.

RODRIGUE ESCAYOLA: And that creates an odd situation. So right now, currently, as the Condo Act reads today, if an owner doesn't comply, under Section 134, you can seek a compliance order. And one of the things you could seek against an owner is to get them punted, to get them evicted because they're not complying. They're ungovernable, and so we're going to get rid of them.

And currently, under the Condo Act, it provides that the court may terminate a lease-- the Superior Court of Justice, that is, may terminate a lease, but only if, first, you got an order from the court against that tenant, and the tenant breaches it.

So there's a two-step process. You need to get an order that says, you shall not roast pigs on your balcony. And if they do it, then you can say, you've now breached the order. And so we're going to terminate the lease. Currently.

But as David indicated a minute ago, there's some provisions of the act that are not enacted yet that basically say, you can't terminate a lease. The court can't do that. And-- which is funny because the court has inherent power-- when I was in law school, that power came from God, I think. Now it comes-- and then it came from the crown. And now I think it probably comes from the will of the people. I'm not too sure.

DAVID PLOTKIN: Equity.

RODRIGUE ESCAYOLA: They have inherent power. And so judges don't like to be told. You can't do that.

OK. Anything else? Let me just--

DEBBIE MACEWEN: Rod, I just want to touch on something we spoke briefly about yesterday, you and I.

RODRIGUE ESCAYOLA: Yes.

DEBBIE MACEWEN: The likelihood of a condominium corporation recouping its costs should it decide to push and push and push and push and push a landlord that's already trying to get their tenant to comply, has made applications, is waiting on a hearing date from the tribunal. And the condominium corporation either decides to go to CAT or the Superior Court of Justice. The likelihood that the condominium corporation would recoup their legal fees in that case.

You had an opinion on that. And I'd love for you to share it.

RODRIGUE ESCAYOLA: And I think Graeme and David, are you going to talk about a case when-- where you have the perfect landlord that doesn't get hit too hard on costs and the other one is a bad landlord. Is that-- or am I building that up?

GRAEME MACPHERSON: Yeah, actually, that's how the cookie crumbled. So I'm happy to talk about-- I'll be covering the case about the good landlord. I'm happy to talk about that now.

RODRIGUE ESCAYOLA: Yeah, let's do it.

GRAEME MACPHERSON: It was a case before the CAT quite recently in 2022. I think in the summer, it was released. And I mean, there's nothing too unique about the facts of the case. I mean it was a case of a tenant who was smoking and causing some nuisance. The case, for anyone interested, is called MTCC number 1177 versus Brunette.

But yeah, the tenant is causing problems. And essentially, I think the main takeaway of this case is that the CAT has almost no trouble finding that. There's enough evidence here that this is very clearly a compliance issue with this tenant. So what are we going to do about the costs that have been incurred?

And ultimately, the owner was not stuck with any of the costs as-- because the owner had been able to show that I spoke with my tenant about this. I sent them letters asking to comply. I sent these letters to the condo to show what I had been doing. I sent them an eviction notice. I asked for an expedited hearing.

The owner did everything reasonably available to them to help deal with the situation. And the CAT was aware of that, cognisant of it, and as a result, did not feel that it was justified to stick this owner with the bill.

And I think that's the right outcome. Because what else are you supposed to do?

RODRIGUE ESCAYOLA: Right. Well, let me ask you this, though, who ended up with the bill, the condo corp or the tenant?

GRAEME MACPHERSON: In this case, it was ordered that the tenant would be responsible for the costs. And I mean, the difficulty with that, obviously, is that the tenant is may be gone and-- or if they're not, it may be like squeezing water from a stone.

But I do think there is something to the court or whatever adjudicated body recognizing the reasonable steps taken by the owner.

RODRIGUE ESCAYOLA: Right. And you can't lean against a tenant. You can only lean against the unit. So there's some practical challenges when the landlord gets off the hook at the same time as you just said. I mean, what can the landlord do? You can't be sending the goons. You can only do so much. Or can you send the goons?

So let's go to David now, speaking of goons.

DAVID PLOTKIN: I don't know if you can ever send the goons. That is not the legal advice that's being provided here. But you do have the obligation to take some reasonable steps. And I just put it in the chat, there was just a CBC article. You might recognize some names in that article from your favorite condo lawyers.

There was a recent CAT case dealing with the opposite situation, where the CAT actually ordered substantial costs of over $26,000 to be paid some by the condo owner, and some by the owner and the tenant.

So in that circumstance, it was a noise complaints, nuisance, and a very highly disruptive environment. And basically, the tribunal decided that-- I mean, the landlord slash owner has obligations to assist to be involved to try and not just wipe their hands of, oh, this is a condo issue. Let the condo deal with it. And here, the owner also wasn't really that useful within the hearing itself. And the court-- that tribunal dinged them for their passiveness in the process as well.

So that's the opposite situation. And we see, it was a substantial cost award for the CAT. And there is a bit of a momentum there to start charging some more fees in that regard.

RODRIGUE ESCAYOLA: Right. And there was a prior case a couple of years back. The Peaches case. It involved a dog, a big dog, and his name was Peaches. And the word tenants, that had all sorts of arguments that the dog was an emotional support animal. That turned out not to be true, and so on and so forth.

And in that case as well, the courts tried to do the summon thing, and just divided the cost between the tenant, between the landlord owner. And of course, at the end of the day, who's usually helped stuck holding the bag is the condo corporation because whatever is not paid while the corporation pays its lawyers and then everybody enjoys the benefit.

Oh, that's interesting. I think we have Joseph Samin on the line. Is that from last condo law? We should promote that guy. We got three minutes to go. I wonder if that's him. Same colors. I recognize the colors from last condo. So if it's you, Joe, hi.

Anything else to add to these two cases? We're running out of time. No? OK. Debbie, anything to add? Did we cover what you had in mind when you asked a question about who's going to pay the piper?

DEBBIE MACEWEN: Yeah, absolutely, you did. Thank you so much.

RODRIGUE ESCAYOLA: Look at that. Free of charge.

OK. So that covers, I think, everything we wanted to cover today. Now, there's a lot to cover when we're dealing with landlord, tenants, and enforcement. You're used to it now. It's just like a fast and furious, rapid fire during these webinars.

And hopefully, it gives you enough information to at least know what you don't know. And then you can contact your favorite property manager or your favorite condo lawyer to try to help you navigate the troubled waters of this dysfunctional love triangle.

I wanted to use an image as well on one of the slides. But I just got dissuaded when I googled love triangle. That-- nothing was appropriate. So I skipped that.

[LAUGHTER]

But you can do it yourself--

GRAEME MACPHERSON: [INAUDIBLE] the internet.

RODRIGUE ESCAYOLA: [LAUGHS] Yeah. OK. So let's do the usual going around one last time. We got two minutes left only. Debbie MacEwen from the Condo Management Group here in Ottawa, also a landlord, but a good one, thank you so much for joining us again.

DEBBIE MACEWEN: You're very welcome. I want to apologize for the phone symbol. I'm doing this webinar from Lunenburg, Nova Scotia, and Graeme and I were struggling to get-- my voice wasn't coming through. So I'm on the phone, and you get a picture of a phone on your screen. So I apologize.

But thank you so much for having me. It was my pleasure, gentlemen.

RODRIGUE ESCAYOLA: Hey, thank you. And enjoy yourself next week. You're going skidooing for a week or something.

DEBBIE MACEWEN: I'm going snowmobiling in the Cape Breton Highlands on Friday.

RODRIGUE ESCAYOLA: Look at that. Look at that. Good on you. Send pictures.

And now the two twins.

DEBBIE MACEWEN: Oh, I will. I'll send you some, for sure.

RODRIGUE ESCAYOLA: You know what? We may actually post them on the Condo Advisor. That's going to get some traction. Debbie MacEwen with a snow suit on.

So Graeme MacPherson, condo and lawyer extraordinaire with Gowling WLG. Any parting words of wisdom?

GRAEME MACPHERSON: Any parting words of wisdom? If your boss tells you at the last minute that you need to rapidly step in and host a webinar, quickly make yourself scarce.

RODRIGUE ESCAYOLA: [LAUGHS] You did a fantastic job. I saw in the comments, everybody loved you more than they like me. So I think I'm retiring.

What about you, David Plotkin, also a condo lawyer extraordinaire with Gowling WLG, the enforcer by excellence here. So any words of wisdom on the topic?

DAVID PLOTKIN: This is a confusing topic. There's a lot of-- it's complicated when you have three different places to go, depending on who you are and what is happening. So don't feel overwhelmed there. We're all here to help you figure out which path to go through, depending on who you are, and what you need to achieve, and how long you have to do it.

OK. Perfect. Graeme, I think you need to put the slide deck back on for the parting slides. Yes. OK.

So thank you very much, everybody. It's 6 o'clock on the nose. Thank you for taking the time to join us tonight and take part in this webinar.

Next webinar, apparently, is on April 5th. We don't have a topic yet, but I'm working with a condominium management star to join us. Maybe he's on the line now. And he-- I'm hoping to get him to come up with a good topic.

You will need to register again. And to register, next slide, I think. Yes. You will need to click on Webinars.

Please don't hate me, we haven't posted last month's webinar. We have a new team that's working on that. So the one on security is not posted yet. We're going to work on this. We're going to post this one as well. You'll be able to access it by pressing the Webinar tab at the top of your favorite condo blog.

So thank you very much, everybody. Enjoy yourselves. Hopefully, there's not too much snow in your neck of the woods. And we will see you next month. Cue with the jingle, Graeme.

[MUSIC PLAYING]