New disputes at the Condo Tribunal and COVID-19

Rod:                Hello everybody. My name is Rod Escayola and I'm your condominium lawyer with Gowling WLG. Let me start by welcoming you to our October edition of your monthly condo webinar. Now this time around, I gotta tell you, we had planned on not talking about COVID. Yay. We wanted to focus on the Condo Tribunal's new expanded, new and exciting jurisdiction, but as COVID would have it, here we are again dragged into the COVID hole because there's been all sorts of changes, new regulations and new restrictions, changing restrictions, amendments to the restrictions. Some cities are included. Some cities are excluded. So we thought what about if we start with just a small COVID update. So we're going to split tonight's webinar in two. We're going to have our COVID update, couldn't do without, and we are also going to focus on the Condo Tribunal's new jurisdiction. It's exciting to hear about them. As usual what we've done, we've called our trusted experts to join us tonight, with the notable exception of Denise who is off tonight. She's taking a break but, fear not, she sent someone to not quite replace her but our new guest, Natalia, is going to blow your virtual socks off when she talks about the Condo Tribunal. Keeping with our tradition we needed a theme to introduce our panelists. So we got a suggestion from a property manager of the Regional Group, from Val Comenco, who suggested that we would go with famous 60's people. Love a challenge. Now none of us being born in the 60's, with one notable exception but I'm not going to point the finger, we have to ... some of that stuff so you'll have to bear with us. Now first and foremost, from Apollo Property Management, reminding owners not to ask what the condo corporation can do for them, but what they can do for the condo corporation, Sean "JFK" Cornish. Hi, Sean.

Sean:               Hey Rod. Good to be back and good not to be the newbie anymore.

Rod:                Nice. Nice. You sound better than yesterday. Yesterday you had a bit of a sore throat. Now, from Crossbridge, speaking on behalf of ACMO, the Julie Andrews of condo management, Katherine "Poppins" Gow. Hello, Katherine.

Katherine:        Hello. Great to be with you tonight all again.

Rod:                Stepping in for Denise, from Lash Condo Law, having AGMs at Tiffany's, Natalia "Hepburn" Polis. Hi Natalia.

Natalia:            Hi everyone. Thanks for having me.

Rod:                I don't see you but I assume you are there somewhere. Yes.

Graeme:          Yes, she's here.

Rod:                She's here? Okay. Well, you should see my set up here. I have enough screens to feed a family. Now, our condo twins. Both condo lawyers at Gowling WLG, the "Chagabera" of governance, Graeme MacPherson.

Graeme:          A revolutionary always.

Rod:                That's right and keeping the Yankees at bay, the second twin, David "Castro" Plotkin. Hi, David.

David:              Oh boy. Hello.

Rod:                I believe you were supposed to take the evening off but I called him at midnight, literally, last night and he put his cape on, straight from the National Life Safety Group, with a mean uppercut, Jason "Mohammad Ali" Reid. Hi, Jason. How's it going?

Jason:             Fantastic. Thanks for having me.

Rod:                Okay, so, if you have questions you can use the chat line. If you want the question to be ignored, deliberately, you can use the Q&A section and to ensure that we all get in the shuffle, David and Graeme and Katherine will monitor those means. Now before we jump in, your favourite part of the webinar, our disclaimer. So for those of you watching this webinar keep the following in mind. First, when we talk about legislation we refer to Ontario legislation and, even at that, sometimes we refer to smaller portions of Ontario. Those listening from elsewhere, you'll have to maybe adapt some of what we say. The information we provide to you tonight is as accurate as can possibly be on October 7, 2020. Most importantly, keep in mind that the information we provide tonight is ...

Graeme:          Rod, Rod. Your sound cut out for a minute there but I think what you were probably going to say was that it's general in nature and it looks like ...

Katherine:        ... the day of broadcast and subject to change at a given moments notice on account of the fact that these emergency orders change all the time. I might have heard it once or twice.

Graeme:          Yeah. So, Rod appears to be having a technical issue on his end. Wouldn't you know it? The agenda that we had set for this, Rod was going to be the first one to speak, but maybe while we wait for him to sort that out I'll just turn to our first topic that we're going to be covering tonight which is, as everyone's getting quite used to how we normally open these, we talk about re-opening Ontario. So I think what I'll do first is turn to our managers, Sean and Katherine. Maybe I'll start with you, Sean. How's it going on the AGM front and are your corporations still attempting to hold, or holding, in person AGMs?

Sean:               Out of the corporations that we manage we had, I'll call them three outliers, who had intended in person AGMs, either small groups or outdoors or something that seemed to fit the regulations. But of those two have opted now for virtual meetings and one did go through with it, prior to the significant changes earlier in September. But in general everyone is, other than the scramble to schedule an AGM, everyone's actually seems to be taking up the virtual aspect of the AGMs quite well. Both adapting to the planning for it and enjoying the actual end result.

Katherine:        Yeah. I would agree with you wholeheartedly, Sean. There's a lot of trepidation and, of course, we as a group got over that trepidation having practiced in mock in one of these webinars so that we could get used to what the flow of an Annual General Meeting would be like, virtually. I can tell you that all of the ones that I've attended, the ones that I've Chaired, have gone extremely smoothly. Kind of only joking but it's funny because it's true. The only thing folks missed was the wine and cheese after that we usually are able to have. The concern that certain folks mightn't be able to participate because they aren't really computer savvy hasn't been experienced at all. The hosts and moderators, the service providers, have been exceptional at assisting anybody who's even a little bit leery or rusty on how to use electronic tools so that they can fully participate in the meetings.

Rod:                Okay, folks. Well, I'm back. You wanted to kick me out. I think it's because I gave control to the twins tonight and I think somehow they managed to kick me out. But look at that. They didn't skip a beat and they actually are on script.

Graeme:          Rod, I hate to ... I'm actually drunk with power now and I'm unwilling to give up my new seat as leader. So I'm going to go ahead and ask you the next question. Something Sean mentioned when he was talking was some changes to the laws with respect to COVID and the amount of people that we can have in one place in September. Can you let everyone in on that and let us know how it applies to AGMs?

Rod:                Well, look at that, eh? He's an expert. Merci beaucoup. So, last month we told you that the emergency period came to an end and as a result of that all COVID postponed AGMs had to be held by a strict deadline, and parallel to that, the Province told you there's some limits to social gathering. That was a mistake to refer to that as a social gathering but it is what it is. So some people out there, those wishing to play COVID roulette were looking at ways to continue to hold their meetings. They decided that an AGM, it's not a social gathering, so it doesn't really apply. Maybe it's a business setting. Others were finding ways to maybe meet outside using mega speakers. There was a drive-thru AGM suggestion that I heard that got me laughing. Many, in any event as Sean was saying a minute ago, went ahead and scheduled their AGMs, hoping for the best. Hoping that they'd be able to hold them. Now I called those AGMs nominations at the Rose Garden. That's what I call it now. Where you just stack people up and hope for the best. Now, while these AGMs were being planned, what we didn't know is that September 17 came and there were strict limits imposed on gathering in Toronto and Ottawa and in Peel and suddenly you had to be restricted to 10 people indoor, 25 people outdoor. So the question became do gathering limits apply to AGMs and the answer is yes, unequivocally. These gathering limits are not social limits. They don't just apply to Bingo nights and pinata parties. They apply to any monitored social gathering and any organized public event. Now as chaotic as your AGM may feel, while you're in the hot seat, they are organized events. These limits absolutely apply to that. So what are the limits now? Well, the limits right now across Ontario are, well I shouldn't have said that, only in the special areas such as Toronto, Ottawa and Peel. That's not across Ontario but there's a big bunch of people in those three areas. It's 10 people if your AGM is indoor. 25 people if your AGM is outdoor. You cannot combine indoor and outdoor to bring it up to 35. If it's partially indoor, not sure what that means if the window's open, maybe, if it's partially indoor you are indoor. Now, there's some exceptions for businesses renting meeting places. The 10 limit and 25 limit apply to AGMs that are held on location, or in a public park, for that matter. But if you bring your AGM to a business, in the business of renting the meeting spaces, then it's 50 people indoor and 100 people outdoor. Those are the limits now. Keeping in mind that there's some special areas in Ontario, the enhanced measures zone, Ottawa, Toronto and Peel. The reason why we're now having these enhanced measure zones is because once you're in the red alert level there isn't another colour. Right? So they've decided we're going to be on the alert level but some areas are going to be some special areas where we need a bit of extra help. For those areas there's further limits of 6 per table. People congregating outside, at registration for instance, would have to wear a mask and there's other limits for sports facilities. So that's sort of the long and short of limits on gathering. They apply. Stop playing COVID roulette. Stop looking for loopholes and just fall in line. Resistance is futile. COVID is not a sprint. It's a marathon, folks. So there it is. That's my bible thumping moment here.

                        Back to, I guess to Sean and Katherine, how does that sort of take place in the trenches? When I just joined back in, Sean, you were telling us that some people have finally accepted the hard truth, and they're sort of abiding by this, and they're all going virtual. Is that what I'm getting?

Sean:               Absolutely and it's literally everybody, to the extent that I saw the comments in the chat, it's become a crunch on the calendar to try and squeeze these in with third party providers. We find trying to accommodate our clients we've gone to all different measures including legal counsel, locally, some of whom offer the services as well as ourselves. We've done it with smaller corporations where it's a little more manageable. But it's all hands on deck to the extent that we have AGMs scheduled on Sunday morning, Saturday afternoon, all the way through until December. Into January I should say.

Rod:                Right, right, right.

Katherine:        Play the tiny violin for property managers who don't get paid a surge fee for attending AGMs on Saturday or Sunday or Friday evenings now as they try to cram them in. The other kind of creative things that we're doing is looking to alternative hosts, as Sean said. Many of them won't have the electronic ballot capabilities so it means a bit of a hybrid, the unicorn that no one's seen yet, where you're effectively hosting the Annual General Meeting as a town hall because all of your votes have been exercised on the proxy. I think the other thing we spoke of briefly, yesterday Rod, was in looking to put together an Annual General Meeting that was safe as opposed to fast. So certainly if your communicative with your home owners, Francine mentioned in particular, what's happening if I don't have any notice of it, if I don't know what's going on? It's legitimately a problem to find a host now particularly because of that emergency order that had a requirement that those virtual meetings take place before the 21 of November. So almost every company that I'm aware of are now booking into the new year.

Rod:                Right. What about getting quorum? Is that a challenge in Ottawa and Toronto? I suspect no.

Katherine:        No and it was mentioned in the chat, one of the benefits of having the Zoom meeting was that we had more attendance than we ever did. Some of the feedback that we're getting back is that folks will never go back to the in person meeting and the reason is that you don't have to rush home through traffic to try to make the meeting, and if you happen to be at the cottage or one day we'll be able to travel again overseas, you can still tune in and still participate and you don't lose your enfranchise rights to vote and make a difference in your community.

Rod:                Right. Now what about, I guess we need email addresses, to be able to hold these meetings and to send the electronic ballots and to invite people. Is that kind of a challenge, maybe Sean if you want to go first, is that a challenge to gather email addresses? Anecdotally I'm involved with a corporation with 225 units where they were very happy and proud to tell me that they had 17 addresses to start with. That was our starting point so how's it going in Ottawa on that front, Sean?

Sean:               Yeah, and actually while I do have one example that's comparable to that, it's definitely the exception. We've been pretty good. Even before the electronic communication regulations came in allowing electronic communication, we did tend to have a pretty good data base of email addresses for owners. They were unofficial. They were in legal addresses for delivery but in the current circumstances those are valid for the requirements for delivery notice of meeting. So that's been quite helpful but there are still the odd outlier there that has not quite found the full participation on electronic communication.

Katherine:        Yeah, and I agree wholeheartedly with Sean. I certainly don't have any in my portfolio quite like that. But the official notice, the consent to receive electronic notices and things of that nature, again, if you missed it this extension allows you to send packages to folks electronically, notwithstanding the fact that typically they would demand a printed package. So that is sometimes a confusion, if you will, over whether or not the corporation has an email address or not. So sometimes it's a bit of research. Right? Who have you had an email from? Where does it go? You're doing your best to connect as many homeowners as possible and to be able to validate those addresses.

Rod:                The thing is, is that this COVID crisis is pushing all sorts of industries, including the legal industry, including the court system and management, into this century. So we're all going to come out of this realizing that we can do this remotely and having many more email addresses, which is a much sort of faster way of getting the information out there. Okay. Let's switch gears and let's go and deal with the AGM deadlines. I'm going to turn to Graeme for that and that too has caused a fair bit of confusion because some deadlines are extended and some deadlines are not extended. Help us out, Graeme.

Graeme:          Yeah, absolutely. As many of our viewers will know the extension that the Province had given when all this first started was until November 21 corporations could hold their meetings or AGMs virtually, even if they didn't have a bylaw that allowed them to do that. Which is normally what you need. That also applied to the ability to conduct board meetings, where every single board meeting ... to happening electronically and it also allowed corporations to send notices of meeting, or any other type of notice to owners by way of email or electronic communication, even if that owner hadn't consented to that. What we were dealing with as a deadline for that was November 21 but I think a lot of corporations were really starting to feel the crunch to get these bylaws registered and passed by that deadline, which is fast approaching.

Rod:                Graeme, we can't hear you very well. I don't know if it's just me.

Graeme:          Is this better?

Rod:                Yeah, slightly.

Graeme:          Okay. It's the best I got. I'm sitting nice and close because I'm only going to say it once but it's recorded. In any event, the new deadline for these items is May 31, 2020. 2021. I'm so used to thinking about 2020 that I said 2020. But it is indeed 2021 and we'll get that fixed before this goes up. But yeah. Don't worry. You don't have to go back in time to get this passed. Don't worry. What's important to clarify though and what's led to a lot of confusion is that a lot of corporations got this update in the ... felt that we have until May 31 to hold our AGM. We've been given more time. Unfortunately, no you don't. The time limits to hold your AGMs are still unaffected. So if your AGM was ordinarily supposed to be due during the quote/unquote emergency period your deadline to hold that is still October 22. So you now have longer to hold meetings, without a virtual bylaw, on line but your AGM deadlines have not been changed.

Rod:                Right. So here you had in our slides our calendar showing you the COVID postponed deadline, I guess, and it's based on your year end. So find your year end and that's going to tell you when you must hold your meeting. That's the deadline to hold the AGM. That has not changed. That has not been extend. What has been extended is the ability, as you said, the ability to hold them virtually without a bylaw. So you have more time to adopt the bylaw basically.

Graeme:          And you can see here to that we made this chart before the change in the law came into effect because it's got November 21, 2020 highlighted. That should now be May 31, 2021, as the new date to hold a virtual AGM and accept electronic voting without a bylaw.

Rod:                Okay. So we'll correct that and we'll make sure that we post a corrected version. Very good. As Katherine said hold them safely, even it means not quite on time. Now one of the questions that we've been asked is what can an owner do if the corporation doesn't call its AGM on time? Because some people may be still waiting for the vaccine. Or they may still be waiting for the end of the pandemic. So, Graeme, what can an owner do if they feel that the corporation is just dragging its feet and not calling the AGM?

Graeme:          Well, there are some options available to owners. As we've indicated before on this webinar, the Condo Act doesn't actually indicate that there's any quote/unquote consequence to holding the AGM late. But that doesn't mean owners are without ability to make it happen. If you are concerned that your corporation isn't holding its AGM on time, and it's doing that for the wrong reasons, I think like Rod just said, if it looks like it's going to be a couple of weeks late, maybe just for the sake of getting one of the third party voting providers on board and availability, I can forgive that, I can live with that. But it it's an issue we are just going to hold out through this siege and wait until we can do it in person, we just have no idea when that could be, and that will bring the corporation's business to a halt. So I think the most practical advice I would have for if it really looks like that this AGM isn't happening and it should, owners always have the power to requisition a meeting. At which point it could kind of kick start the corporation into well, we might as well just hold the AGM. I mean, when all else fails there is always recourse to the courts. That's the slower and more expensive route so I would hesitate to recommend that first. Even before requisitioning I would recommend just try to communicate with your manager. Try to communicate with your board before taking such an action to see what's going on and see if they have an explanation. Based on what you receive or don't receive you can make an informed choice. But yeah, owners are not left without tools to leave them stranded without an AGM.

Rod:                Okay. I'm going to turn the mic to Natalia. In the meantime, Graeme, if you want to sort of reboot your microphone or find an alternative because you sounded like you were in a bunker somewhere.

Graeme:          It's just my apartment.

Rod:                That's right. Natalia, we're going to turn to you now. Newest addition to this panel and I'd like you to maybe help us understand the various, I guess last Friday the Province amended its re-opening Ontario legislation or the regulation adopted pertaining to that legislation, and finally, Ontario came out and said, "You know what? Masks are mandatory while in interior sort of areas of businesses", and so on and so forth. So, does that apply to condos and to what extent? The devil's in the details so maybe you can tell us a bit more about that, Natalia.

Natalia:            Certainly. So, of course, this new Provincial mask policy/regulation applies to condo corporations but there is some odd exception in the Provincial policy that differs from many municipal policies and likely many condo policies that have been adapted thereunder. That is this new dwelling element. That if it's a dwelling of an interior common area, which a condo would be included, that if people are able to maintain a social distance of 2 meters, they don't necessarily have to wear a mask. This is somewhat at odds with certain municipal policies, for instance Toronto, that was adopted back in July 29 I believe, and it required masks in all common areas which would include the common elements of corporations. So although it's great that the Province has taken its initiative to amend its regulations to make this masking mandatory, it will make a little bit of confusion for owners, who will look either at the Provincial policy and say, "Oh. Well I can maintain a 2 meter distance and I don't need to necessarily wear a mask into our common elements." Whereas, Toronto's policy doesn't say that and in Toronto, especially, all condo corporations have to adapt a masking policy. So more than likely than not that  masking policy doesn't provide this odd exception that we see in the Provincial policy. There obviously is the same exceptions that apply for other masking regulations which include children, 2 or under, people with medical conditions and are accommodated under the Accessibility for Ontarians with Disabilities Act or the Human Rights Code. Also some exceptions with eating and drinking food. If you need some sort of procedure that requires your mask to be removed and so forth. Although it's great that the Province has enacted and amended their regulations to provide this, it will inevitably cause some confusion in condo corporation settings. So all owners, presidents or guests should, if they can, if they don't apply to one of those exceptions, wear masks within the interior common elements of corporations.

Rod:                Okay. So, this I think is yet another example of Dougie boy's timid confusing and delayed approach to rolling out precautions and health restrictions. I mean, just look at Thanksgiving this coming weekend. You can't have it with your family unless you bring your family to a strip club or to a casino. So that's sort of Dougie boy's approach to how we do this. Very timid and sort of a bit confusing but I think your point is well taken that first, look at your condo corporation, whether it has adopted a policy or a rule dealing with masks. Then abide by that. If your condo corp has not then look at your municipality and many municipalities. I know, Natalia, you spoke of Toronto but I mean there's tons across over the Province, including Ottawa of course. So look at the municipality. Has it adopted a restriction or an obligation with respect to masks and so on. If it has then you abide by that. Now, if the condo hasn't and the city hasn't, then you fall within the end bit of this new regulation at the Provincial level, requiring you to wear a mask unless you're able to maintain a 2 meters distance. So that's sort of the lay of the land on that front. How's it being approached in condos? Or how are owners reacting in condos? Sean or Katherine. Is it now difficult? Is that so contentious or are people now sort of more comfortable with the concept?

Sean:               We've certainly found that people have adapted well to it. The odd hold out or difficult ones have generally been compliant when spoken to as opposed to looking at enforcement measures or some sort of compliance efforts to force them to comply. Which of course is difficult ... bylaws in Ottawa and the Provincial regulations where people do not have to prove that they are exempt from the requirements. So, no, in general it's been good and as you mentioned the city regulations can be more restrictive, not more permissive. So the Provincial changes haven't had an impact on Ottawa condos. The only exception to that would be, again, if you had a commercial condo with a restaurant, there's a requirement for people to wear masks when lining up outside of a bar or restaurant. That's a new one, Provincially.

Rod:                Right.

Sean:               At the same time, Ottawa Public Health has recommended, not directed, not forced, but they've recommended that people should be wearing masks both inside and outside. So that's genuine advice from them regardless of what the requirements are.

Rod:                Katherine, how do you sort of balance when you have an owner that falls into one of these exceptions? Doesn't have to demonstrate that they do but then you have the rest of the community that sort of faces them in the elevator or the hallway. How do you deal with this?

Katherine:        It's always moralization, right? Part of it is to foster an attitude of understanding and going so far, for instance, as determining right of way, if you will. So somebody who is unable to wear a mask, communicating to the rest of the population that will consider somebody in the elevator as having the right of way to remain in the elevator and asking somebody who is incapable of wearing a mask to please wait or to ask somebody who is in the elevator if they're comfortable with sharing it. As you can well imagine, not withstanding the fact that they may have an exception, it's trying to be sensitive to the fact that folks coming and going, with the cases being on the rise, we all have to work together. I 1000%25 agree with Sean. I think of all of the front line workers, the hospital workers in particular, who are wearing the full HAZMAT suit and for hours, whole shifts, it's literally the least we can do is wear a mask and at all times. Whether or not our physical space is large or small. I think that's one of the biggest tools we have, currently, to try to decrease the case load.

Rod:                Hm hmmm. So, Jason, I'm going to turn to you because we did bring you in from your bunker. I guess you sent a very interesting email earlier in this week, or was it last week? There's some new regulations that now do apply to employers, for instance, mainly based on a fact that if the Province is, if health authorities are recommending something then the employer has to sort of follow it. So help me understand that.

Jason:             So, the big announcement on Friday was quite interesting. That was the City of Toronto making that announcement, making recommendations to the Province to allow them to either put those into place for those three enhanced locations, or those enhance measure zones. So these 8 points here really kind of sum up what I'm seeing and suggesting that's going to likely be very important over the next 3 or 4 days. So number one is, all condo staff must be wearing masks everywhere in the building. We're seeing a lot of condominium concierge and security staff having the plexiglass but they themselves are still not wearing the masks. That is a requirement and in addition, if you're looking for evidence to support that, that individual is sitting in there for an 8 to 12 hour shift and breathing that lobby for 12 hours. There is nobody that's going to convince me to say that that plexiglass is safe. That plexiglass is a secondary kind of protection measure. The other thing is you're wearing the mask as an employee to also protect the residents within the building. So that plexiglass is just not providing that group protection. So masks are required in all areas, including common areas. The other rule that came into place is for all work places, no matter what sector this is, all work places must ask three questions of all visitors, non-residents, not the residents, but any trades or any visitors that are required to attend those locations. Now while that is very important to focus on, I want to focus on the enhanced measure zones. So Toronto, Ottawa and Peel. If you have a condo corporation in those locations, you should be screening all visitors to your property in those locations, and if you're not now it will likely be required in the coming days so be ready for it. But this is already a requirement in work places. It just hasn't been talked about and we haven't exactly clarified whether a condo meets that requirement. It does. It does. Absolutely. The third point is gyms. So there's been some discussion about gyms and group classes. There are no group class exercise based on the recommendations from the City of Toronto on past Friday. That's going to come into play. My suggestion and recommendation is, if you're in the enhanced measure zone, right now you should be removing any group exercises, already. If the City of Toronto doctor goes on national television and says they're recommending this we don't need to wait for a law. You've got an authority having jurisdiction making that recommendation and a proactive condo corporation should be implementing that, is my belief. The other thing is, if you're going to open up amenities make sure the amenity has been opened up with a 1, 2 page document and the board signed off on that opening. I don't care if it's a 7 page document, 1 page document, the board should be signing off stating that they've reviewed the plan created by either the property management firm or an outside firm, it doesn't matter, but the board should be approving that. Why? That's the kind of information we talked about several months ago that's going to be asked for. And it is going to be asked for. Party rooms, if you've opened them in the enhanced measure zones, based on Friday's announcement from the City of Toronto, the authority have jurisdiction, that's the City of Toronto health doctor, came out and said, "Listen. The only way banquet halls are going to be opening is because if they have a detailed plan and that plan is approved by public health." So, I kind of take those assembly areas, just like banquet halls, that's what your party room is. A party room, there's no way you can manage and effectively look after that party room. So if the City of Toronto doctors and public health unit are recommending that all banquet halls have a plan and that plan is approved, you're not going to go down that road. Those enhanced measures areas, they should be closing those party rooms. Security guards and building staff. In those enhanced measures zones, Toronto, Ottawa and Peel, I don't believe we're going to see another mass lockdown. From what I understand we're going to have a targeted increase of measures. That targeted increase of measures could result in people being stopped on the way or travelling within those areas. It's farfetched, yes, but if you want to look after your continuity of operations, you should be planning for that. At least engage your service providers. Reminders on masks and social distancing. You know, Denise Lash and Natalia, you were talking about the mask requirements. This is huge. The opportunity for your building employees to rely solely on social distancing and then stop. Oops, I just broke the 2 meter range and put the mask on, there's too much of a gray area there. There's too much for human mistake. So, mask policies should be at all times for employees. Flu season is upon us. So what can we do as a condo corporation? Number one, I think it's very important that we review the cleaning schedules that we implemented almost 6 months ago. Why? Because those may change based on the demographics of your building, the traffic of your building as well as several other factors. My suggestion is that if I was responsible for a condo corporation I should be reviewing those cleaning schedules, at least every couple of months based on the new information that we're receiving, and documenting that review. Then finally, fire safety is important. Why? We saw an increase during the enhanced measures of the lockdown the last time. So one of the things we're recommending is high rise condominiums are required to do fire drills, for staff, every 3 months. Just make sure you're doing them. Make sure your staff are ready. Then finally, don't forget your annual reminder of the emergency procedures for all of your family of residents. This is so fluid right now and I apologize for taking any longer than I should, Rod, but it is. Things are changing. We're constantly getting new information on a daily basis, but these enhanced measure zones, we have a real opportunity to implement a lot of these things now because they are being recommended. We don't need somebody to tell us to do these or that we have to do them. They're already being recommended by the top doctor in the largest city in Canada.

Rod:                Right. Well, look at that. Very well said. Very well presented, Jason. I'm glad you actually could make it today. I guess I got a visual cue for what you just said. Stop looking for loopholes. If you're looking for a loophole we've got two right here. They go around your ears to hold your mask in place. Those are the loopholes. I found that on Twitter. It's not mine. Very good. We're sort of behind schedule and so we're going to jump ahead and switch gears and talk about the new Condo Tribunal. I'm going to turn to Graeme first who's going to sort of help us understand this new jurisdiction. Graeme, I guess this sort of came into play on October 1. This Tribunal has a brand new sort of jurisdiction and they're open for business to accept different disputes now. Tell us more about that.

Graeme:          Yes. So not only are they open for business but, in fact, in any case where there is a Tribunal that has a particular jurisdiction it means that Tribunal has to be the first one that you turn to. So now if you wanted to go to court or something about any of the new jurisdiction items, you would be told by the court, politely, "Well, no. You have to go to the Tribunal." What we were working with before with the CAT was just disputes with respect to records requests but since October 1 been expanded to include pets, vehicles, parking and charge backs that the corporation has sent to an owner in respect of those items that I just listed. Let me tell you, they've really run the gamut here, especially with the vehicles. They have listed everything under the sun that I can think of including the obvious motorcycles, automobiles, to the less obvious punts. Under this definition, which is really quite broad and you can read it on the regulation, but in my view it would even include things like drones and horse drawn carriages. I'll move on quickly because I know we're short on time but, basically, if you park your horse drawn carriage in a parking spot illegally and your horse is causing nuisance, and you get a charge back letter from your corporation's lawyer about it, it's the perfect case for the new jurisdiction because it will cover all of their new areas. I'll move on now and pass over the microphone to I think, Natalia, who is going to talk a little bit about how the process actually works at the CAT.

Rod:                Okay and Natalia has extensive experience with the CAT and so share the goods.

Natalia:            If anyone hasn't been a part of a CAT proceeding yet, it's essentially a three stage process that's done all online. One thing to note it's very email heavy so expect to receive a lot of emails when you're a part of this sort of proceeding. The first step of the proceeding is to start the application on CAT's online system. Prior to October 1 it was only with records requests. Only an owner could really apply to CAT to bring this sort of proceeding. Now, a corporation could apply with this new jurisdictions that it's covering that Graeme just mentioned. So once an applicant files the application a respondent will get a notice of case. At that point in time the respondent has 7 days to respond and they respond by accessing the CAT's online system and basically joining the case. So once both parties are in the proceeding you go to stage 1 which is negotiation. At this point it's just between the two parties, whether it's the condo corp and owner or multiple owners, and with each other you try to negotiate and reach some sort of settlement. In my experience with CAT it's not very fruitful because by the time you get to CAT there's already been so much communication between the owners and the corporation that negotiation won't really get you anywhere. Inevitably it usually goes to stage 2. The applicant has paid the fees and you'll move onto the mediation phase. At the mediation phase, a CAT member will be assigned to the case and that is essentially like any other mediation. Where the mediator tries to come some sort of resolution between the parties. Generally, the CAT member will assign a deadline for the parties to reach some sort of settlement and if they are not able to then they'll open the case for the applicant to then pay the fee and move on to stage 3. One good thing about the mediation phase is the CAT member tries to limit the issues if it is proceeding to stage 3. Which is good because oftentimes, for instance in records requests, it could be 30 requests that are in dispute and then you could limit that down to maybe 5 or 6 records. So once the applicant pays the fees the mediator will then make a summary of the issues and that will be provided in stage 3 to the new member that's assigned as the adjudicator onto that file. The adjudication is set like any arbitration or court proceeding. You have the parties submit evidence they're relying on which, in a records request proceeding would be the board's response, the records requested that were provided, any communication between the parties that they're relying on. Thereafter you provide witness testimony. So whether it's a manager, a board member or whoever who will be providing a witness statement to be submitted onto the CAT ODR system. There'll be ... perspective, expand on the evidence and once that's complete the parties have the opportunity to cross examine one another. Which also includes the opportunity to object to certain cross examination questions. The adjudicator ultimately makes the finding whether or not to allow certain questions to be put forward. Then only if there's a second round of cross examination, if they're necessary, then the CAT member will also ask questions to both the parties if they need further clarification on any of the items. The last step is the closing submissions. In the closing submissions you'll put in any CAT case you're relying on, other case law and then the provisions of the Condo Act or the corporations governing documents which support your case. The most controversial aspect, in my opinion, is cost submissions. Generally CAT doesn't award legal fees for anything except if its an exceptional circumstance. I believe there is only one CAT case right now that actually has awarded costs and oftentimes corporations use their lawyer to represent them in these sort of matters. Which could rack up a big legal bill and, unfortunately under CAT's rules, they're only awarding these sort of legal fees for exceptional circumstances. Which we haven't really seen thus far but hopefully with the expansion of the jurisdiction maybe they'll take circumstances that are ... a little more, if the corporation is the applicant and they have a strong case.

Rod:                Okay. Wonderful. So the first disclaimer that I have to put on the table that this beautiful diagram that you see on the slide, I actually took it from the CAO's website. They have an amazing website, the Condo Authority of Ontario, where they sort of explain in greater details the process, what you need to do and how it works. So that doesn't come from us. It comes from their website. It's full of good information so if you want to brush up on any of that, that's a good starting point. A quick question for you maybe, Natalia, is that these cross examinations and this hearing and the submissions and all that, do we have to go to a courthouse? How does that work?

Natalia:            No. So everything is online and it's done in writing. Sometimes the adjudicator will allow for oral submissions but I think I've done 20 or so CAT proceedings at this point. I've never done anything orally. Everything is in writing and it's all on the CAT ODR system. Actually, I think October 1 is when they updated their system because previously it was a little bit confusing but it's gotten a lot better since the October 1 changes. Which is good for someone who's not very tech savvy like myself.

Rod:                Hm hmmm. Right. So it's pretty much online now and as you have indicated there is, I guess these disputes used to be strictly about documents. So when you look at that, that makes sense to make written submissions. Did you ask for the documents? What document did you ask? Are these documents records? Which ones did you provide? I don't think there's a lot of sort of contentious evidence around that, I would think. But when we start bringing pets and parking and vehicles into the equation, and whether or not your allowed to park your punt, or whether you're allowed to park your horse in the parking, there may be more. You know like there's going to be this ... the weight of your dog if the issue is your dog is overweight. There may be issues surrounding whether this dog or this pet is a service animal. So there may be a lot more nuances there. You've indicated that it's very difficult, near impossible I would say, to get costs once we go to the CAT. That may very well change I think. It may level the playing field or certainly change the dynamics in the sense that it's less risky perhaps for an owner to challenge a ruling or a decision made by the corporation.

Natalia:            Yes. I guess now any dispute between the new jurisdiction will go to CAT and if the applicant is the condo corporation, because in these record requests disputes that we've seen, sometimes the applicants have been awarded some costs, for instance the costs of even applying to the CAT itself and back paying filing fees. Maybe now that the tables have turned and the corporation might be mediating disputes against condo owners that the CAT will also be awarding some sort of damages or costs to condo corporations.

Rod:                Right, right. I think the default setting for the CAT is that they're not going to be awarding legal costs. Legal costs incurred in the context of a CAT proceeding or it's going to be very, very rare. So that's going to change things a bit, I think, which sort of brings me to you, David. You though we had forgotten about you but that brings us to this year's case. The case came and a first instance decision came out in January and already people were saying that that was the 2020 condo case. The appeal decision came out probably at the end of August. The Amlani case. The Amlani case, David, as you know because you argued it successfully dealt with costs and charge backs, I guess. Can you maybe tell us a bit more about that and whether or not Amlani changes the landscape on the cost issue and charge back issue?

David:              For sure and as you said this has really caused some consternation amongst our peers. I'm going to do my best to try and put out the different perspectives on it and we can maybe talk about it as a group also. So the Amlani case, in very brief, was about an owner, who we represented, who was a smoker. There was no rule in the corporation specifically prohibiting smoking. In 2015 there were some complaints about his smoking and it was dealt with very swiftly and fairly by the corporation. They called in an engineer. They sealed off some risers and there were no issues afterwards for 2 years. 2 years later certain complaints started coming in and the corporation kind of changed its tune. None of this is almost kind of like me editorializing. I'm really going with the findings of fact of the court. The court found the findings of fact that the corporation refused to discuss the issue with the owner. They refused to sit down and even call in any experts. They refused to mediate seeing that as a threat as opposed to a common sense solution and when they did eventually go to a mediation there was a finding that they left halfway through. So the court determined that all of this was all about how the corporation acted unreasonably but the bigger thing here is about the legal fees. That's what this really came down to. The condominium corporation's legal fees that were charged for what was a compliance issue; ie: not following what they said were rules or in breaching the governing documents of the corporation. They incurred over $25,000.00 in legal fees. Some of those fees being after the owners had actually left. So the question was can you charge back these legal fees in the context of a compliance matter.  A lien was then put on the unit when the fees were not paid and then the application was brought by the owner to strike down the lien and for a question in damages. He was successful in that application and the court ruled that, first, the indemnification provision of the condominiums declaration was not specific enough to cover this exact situation. So that's kind of one stream of thought. There was also a lot of discussion on the difference between section 85 of the Condo Act and section 134. So section 85 allows the corporation to lien for common expenses. Section 134 allows the corporation to get its legal costs back after being awarded an order for compliance. So a lot of the question here was can you pre-charge someone for breaching a rule, or for not being in compliance with the governing documents, or do you have to first go get an order from the court ordering that they were, one, not in compliance of the rules, and then you can charge back for all of the reasonable costs incurred in seeking that compliance. So the court at first instance was pretty clear on it that the Justice found that section 85 and 134 are very different streams.  You choose one or you choose the other. You can't mix them both together and pretend that compliance is a common expense or vice versa. They're really two separate streams and the divisional court, on appeal, which was my first experience with a Zoom divisional court appeal, upheld this decision and said they saw nothing wrong with the application judge's legal interpretation. So the big take away from this, regardless of which school of thought you're on, whether you think as long as you have like a really specific indemnification provision, maybe you can, or if you're of the view that you can never charge back and lien for a compliance issue, the key take away from this is you just got to act reasonably. The facts of this case were so right for the judge to just jump in and say, "This corporation did nothing. They refused to meet. They saw mediation as a threat. They ignored all attempts by the owner to try and sit down and reach some sort of solution and they continued charging legal fees once the owners actually moved out of the condo to appease the corporation who was continuing to charge them legal fees." So all of that was viewed as unreasonable by the court. So you certainly want to be ensuring that you're acting reasonably in the context of any of your interactions with owners, especially in compliance. You certainly want to have your indemnification provisions reviewed by your legal counsel before you take big steps. Especially when you're incurring fees. Don't just assume you're going to be able to get all that money back. You really need to review the indemnification provisions. You've got to act swiftly and you still, corporations, despite this owner friendly decision let's call it, corporations still have an obligation to enforce the rules. You've just got to do it reasonably and properly, you know, setting out the steps and making sure that you're crossing your t's and dotting your i's. So maybe I'll invite anyone else who wants to jump in on this to kind of share their views. Maybe Rod also has some thoughts on this that I missed.

Rod:                This is a fundamental question that we encounter all the time. Owner breaches a rule. Corporation seeks compliance. The corporation then has incurred costs seeking compliance and then the question is who should pay for that cost? Should it be this owner that breached the rule or should it be the rest of the corporation to absorb that as a cost of doing business? There's been a lot of abuse where an owner feels that the corporation is acting as judge and jury, basically going forward with a compliance matter, and being able to sort of recover without any checks and balance. At least that's the perception. It's a fundamentally important question that's been adjudicated in the Amlani case and I think we still have those two schools of thoughts out there. But as you pointed out, David, I think the starting point is, well it should always be, for the corporation to act reasonably. But also have a look at your indemnification provisions and have a look to see if in fact it provides you with the tools to be able to recover the fees. If not, you may need to change your strategy about it. Now, we're not suggesting that you can never recover fees and that owners will get a don't pass go and don't collect your, or as Katherine says, get out of jail free card. That's not what this decision is about. The decision was really about acting reasonably in effectual context of this decision. But it's an important decision and it may actually change the dynamics. How you sort of balance enforcement versus collection and so on and so forth. But we're not going to have a general discussion about that for the simple reason that we're running out of time. So, unless there's anybody that's dying to say something, I'm just going to go around. I'm going to thank all of our guests. If you want to know more about this decision, or about anything else, feel free to, everybody has blogged about it, except us oddly enough. We're the only ones that have not blogged about Amlani.

Graeme:          We've blogged about it. We had a few blogs on it.

Rod:                We do, eh? Sure. Not at the appeal level. We wanted to see what the people would say about it and we didn't really want to toot our horn too much. Which we did tonight. Anyway, so going around the table now and thanking all of my usual guests for having taken the time to join us and share their knowledge and expertise. I'm going to go in alphabetical order and you get about 15 seconds to share wisdom or parting thoughts.

                        From Apollo Property Management, thank you very much, Sean Cornish for your participation tonight. Any words of wisdom?

Sean:               No. Not a lot of wisdom. I think it's all been shared. The message, oddly enough, is consistent over the last 6 or 8 months. Let's not find the loopholes, as you said. Let's be cautious and we'll all get through this but we don't need to be jumping the gun and trying to get ahead of the game throughout any of this.

Rod:                Wonderful. Thank you so much, Sean. Katherine Gow from Crossbridge, parting words?

Katherine:        Keep calm. Wash your hands. Sanitize your cell phone. We got a little bit complacent earlier. We were so excited to re-open so let's step it back a little bit, give everybody more space and be a little cleaner on those items.

Rod:                And a guest star tonight, for the first time on our webinar, is Natalia Polis from Lash Condo Law. Thank you very much, Natalia. Any words of wisdom before we go?

Natalia:            Thank you so much for having me. It was a pleasure to be here. Words of wisdom. When in doubt wear a mask.

Rod:                Nice. I like it. I like it a lot. My two favourite condo twins, Graeme MacPherson. Graeme, parting words.

Graeme:          Yeah ...

Rod:                Can't hear you buddy.

Graeme:          Okay well then, parting words, make sure your microphone works if you're going to be doing a webinar.

Rod:                Nice. Very good. And the evil twin, David Plotkin. Hi David. Any words of wisdom before we go?

David:              I'm resenting the evil twin. I look so nice. If you're unsure of what the municipal bylaws say and what the Province is expecting you to do, pass a policy. Your policies are enforceable. The courts have recently, there was a recent Toronto case we didn't get a chance to talk about, but has upheld a policy that was passed the condo corp in the context of COVID and said that it was a reasonable response to the global pandemic. So if you're unsure which authority you're supposed to be following pass a reasonable policy and then enforce it in a similar manner as rules.

Rod:                Very good. Thank you so much and big thanks to the National Life Safety Group, Jason Reid, for your very thorough review of the recommendations and how they apply to your condos. Words of wisdom before we go, Jason?

Jason:             Listen, you've all been attending these sessions and there's been hundreds in attendance every time, I wish you all a wonderful Thanksgiving with you and your families.

Rod:                Wonderful. Thank you so very much. So folks, this is a monthly event now. Our next meeting is Wednesday, November 4, at 5:00pm. Information will be posted on the condoadvisor.ca. You'll need to register again. You can find information about our webinars, past and future, if you click on the webinar tab of the condoadvisor blog. If you have any topics in mind that you'd like us to cover send them our way. We're always looking for good topics to discuss. So that's about it. I'm off. Thank you very much to the panelists. Thank you to everybody at home. Have a safe and socially distance great Thanksgiving weekend. Thanks so much. Have a great evening everybody.