Condo Adviser, épisode 43 : nos avocats en droit de la copropriété répondent à toutes vos questions
(en anglais)

[MUSIC PLAYING] ROD ESCAYOLA: Hello, good evening, everybody. My name is Rod Escayola, and I am your condominium lawyer with Gowling WLG. And this is our December episode, a holiday episode for some, a Christmas holiday episode for others, call it what you want as long, as you're having fun. That's what matters.

And so today, we are trying something we haven't done. I mean, we've been webinaring now for over three years. We're going on our fourth season. And we thought, what about asking the viewers their most intimate and complicated questions, condo questions? So today is Ask a Condo Lawyer Any Condo Question. So there it is. That's what we're going to do today. And I have the usual condo jedis. We have Graeme Macpherson with the hat. Well done. Well done.

GRAEME MACPHERSON: Yeah. Tis the season.

ROD ESCAYOLA: Tis the season. And Nailah is hatless, but that's OK. She's got the lights. We all got the lights. She didn't know we had a dress code, actually, for today. So there it is. We're ready to go. We're ready to jump in. So, folks, what we're going to do is-- oh, Graeme, can you turn the chat live on?

GRAEME MACPHERSON: Yes, I can. Let me fix that.

ROD ESCAYOLA: I think we always keep-- yeah, we keep forgetting that, and I really don't know how to do this. So that way, people can say hi from wherever they're at, and they can share their fruit cake recipes and do whatever needs to be done. Now, I usually have a disclaimer, and the disclaimer is far more important today than at any other webinar because we're answering questions you've asked us.

What you're getting today is not legal advice, and it is worth what you are paying for, nothing. So we're going to just get your questions. We're going to try to give you pointers, but you really need to consult with your favorite condo lawyer in order to get the answers that are applicable to your specific case. So that's really important, OK? OK. Let's get going.

GRAEME MACPHERSON: Rod, I can get chat going, you'll just have to make me a co-host as well.

ROD ESCAYOLA: Oh, you're so kind. Didn't want to interrupt me. OK. How's that?

GRAEME MACPHERSON: Let's see. OK. Yeah, give me a minute.

ROD ESCAYOLA: Yeah. That was a bit of a mad scramble because we were coming out back from the CCI/ACMO conference. OK. So, Nailah, you're the first to go. So the way we're going to do it, folks, is we picked-- we got flooded with questions, but we picked 12 questions, just like the 12 Days of Christmas, if you want. So I have my advent calendar on the screen, and I'm now going to ask the questions as we receive them.

So we got a question from Paul in Toronto. I'm skipping the last names. And Paul is asking this, he says, we have a CCTV camera in various locations at our condo. Can the condo manager forbid an owner from receiving a copy of a video to observe certain videos? Nailah.

NAILAH RAMSOOMAIR: Well, I'm going to start us off here. Well, the first issue I see are privacy issues, right? Because if you're asking for video footage of unit owners, any common spaces, then that's going to cause some privacy issues, Privacy Act breaches. So that's the first issue I see with that. I don't know if anyone else has some other points to add there.

ROD ESCAYOLA: Yeah. I think Graeme is just, like, jumping up and down. There's something he wants to say.

GRAEME MACPHERSON: Well, there was a CAT case not too long ago in 2021, where an owner actually requested CCTV footage. Interestingly, the footage he wanted was of himself on a ladder. I'm not entirely sure what his reasoning was. I didn't fully comprehend it. But there it is. He wanted footage of just him.

And the condo took the position that, well, CCTV footage isn't really one of the prescribed records that we're supposed to keep, so it's not really a record of the corporation. But the CAT actually disagreed and found that, even if it's not specifically listed in the act, other things may be records, and it found that video footage may actually be one of those things. Now, that case is called, urgh, jeez, Hawryliw and TSCC 2309.

But it's important to note that in this case, the CAT made it clear that one of the big factors of why it was ordering that the footage could be delivered to this guy was because it was footage just of him. Normally, when we talk about records requests, there are exceptions. You can't, for example, request records that have to do with your neighbor. Any records having to do with a specific unit owner or unit are blocked by the exception to the rule of open book.

So in this case, it may have just been that because he wanted his own footage of himself on the ladder that they granted it, but still, don't close the door necessarily on having to give away footage.

ROD ESCAYOLA: Right. And so to Nailah's point, the issue is an important one. I mean, you don't want people to access the footage just to keep track of how often Pistache the dog goes out on a pee-pee routine. You don't want that. You don't want also neighbors that are just going to take note of how often 301 and 705 happen to meet in the mail room at midnight to kiss under the mistletoe. You don't want people to spy on each other.

There was a case where I was involved where there was-- the SWAT team, actually, was called. They stormed every entrance, every stairway, every staircase, they stormed a unit, and we got a request from the lawyer acting for the accused who wanted to see the footage of the accused being escorted out to get a better sense of where and how the accused's face accidentally hit a corner, or a door, or two on the way out. And that's what they wanted to see. I guess maybe the pickup and delivery was a bit rough.

And so we took the position that we don't disclose records unless there's a court order, or unless the police ask for it. If the police wants it, we're going to cooperate. But I think now that we have these records-- that was pre-CAT and prerecords, these new rules applicable to records may have changed the landscape. So what I think is important is for you to adopt a retention and a disclosure policy, where you're going to have clear guidance to yourself, and to the owners, and to the world as to what are owners entitled to see, when, and how.

And as Graeme said, if an owner wants to see footage only of themselves, well, there's no privacy issues. But beyond that, you may need to blur some of the information. So there it is. Back to my advent calendar. Yeah, this idea didn't work as I wanted. But in any event, we'll open the next door. The next door, it's a question from Bruce who is from Kent County, I guess. We have a unit directly above-- well, that part is not important. The important part is this.

So there's a leak from a unit, and we've noticed that it comes from the entire bathroom. When they went up, they saw that the bathroom was in need of repair. The plumber went up. The plumber confirmed that the source of the leak was coming from that bathroom or from the toilet flange to be quite precise. The plumber also noticed that the tub needed repairs. And so what's the question now, you're asking. Well, the question is, can the board give the owner a specific period of time to replace the tub before another leak takes place? Who's going to tackle this? Is that you, Nailah.

NAILAH RAMSOOMAIR: Yeah. I think that's me. So to answer this question, I think we're going to turn to the handy-dandy Condominium Act. So Section 90 of the act will tell you about your obligations to maintenance. It'll tell you that the corporation needs to maintain common elements, and the unit owners are to maintain their own units. The answer to your question is that, if an owner has an obligation to maintain their unit and is not carrying out that maintenance within a reasonable time, the corporation can then go, make those repairs, maintain or repair whatever needs to be repaired, and then charge that price back to the unit owner.

So essentially, I guess the moral of the story is, if you need to maintain or do repairs, to do them within a reasonable time, otherwise, the corporation is going to step in and will be able to charge that back to you as it's stated here in the act at 92(3). Another place to look at for your obligations will depend on your corporation, so it's good to look at your declaration which will lay out your repair and maintenance obligations.

ROD ESCAYOLA: Right. Exactly. And you, when you say you, you mean the owner?

NAILAH RAMSOOMAIR: Yeah.

ROD ESCAYOLA: Right. So the unit owner may have an-- does have an obligation to repair-- to maintain their unit, and if they fail to do that, Section 92(3) allows the corporation to go in and do the repair for them, and then charge them for that. But the key words here are, here, you need to give them a reasonable period of time to do so. OK, perfect. Let's go back to this advent calendar. Now, we got a second door open. We're going to open the third door. I'll do better next year folks at home. I'll have it all automated. That was a last-minute idea.

GRAEME MACPHERSON: It doesn't share.

ROD ESCAYOLA: We got a question from Bruce in Toronto. Bruce says, basically, that he feels that the board controls the auditor's selection process, and that they don't allow the owners to say who's going to be selected as the auditor. Other than the standard approval, the vote at the AGM, he says they don't have an audit committee, and so he's concerned about the current year audit. Basically, they just feel like they're not being given access to the auditor. So, Graeme, what are the options for Bruce?

GRAEME MACPHERSON: In fact, I'd go as far-- I've never seen a condominium corporation with an audit committee, but that doesn't mean that owners are completely powerless in this respect. Whenever a meeting is called, we have to send out the preliminary notice and the general notices of meeting. And in that first notice, the prelim, it will indicate that this is going to be a meeting where we're going to be appointing or removing an auditor. And if you'd like to select a replacement auditor or a different auditor for consideration, please put their name forward, and there will be a deadline to do that.

Then, when the general notice goes out, if anyone put the name of an alternate auditor forward, they will be included in the general notice, and that will be something that goes to a vote at the AGM. How that vote is dealt with, whether it's by motion or by a formal recorded vote, that's going to be something that the chair of the meeting, and we'll have to consider how it's approached considering your bylaws and what they say about voting.

But all this to say is that owners are not powerless when it comes to the auditor. But you just have to make sure, if you do feel that another auditor would be more suitable, that you make sure to get that request in by the deadline. Otherwise, I expect the corporation would likely-- if it hasn't received any formal requests by the time the deadline rolls around, I expect it would just be seeking a motion at the AGM to reappoint the current auditor.

ROD ESCAYOLA: Right. And we'll add to that that as owners, you have access to all sorts of information, all sorts of records, financial records included, and so on and so forth. But you can't really allow one owner or two or 10 to have a direct line to the auditor. The auditor can't be fielding questions from 85 individual owners. That's why they usually show up at the AGM. Save your questions for the AGM. But good questions.

OK. The next question back to our calendar. Look at that, number 10 has been opened. No chocolate behind it, but a picture of Graeme with a hat on. You're doing just like Queen Elizabeth. You're speaking and the crown doesn't move. That's fantastic. OK.

[INTERPOSING VOICES]

ROD ESCAYOLA: So the question, the next question is from Gillian in Ottawa. And she wants to know, how do we enforce rules, and how far can we go? Nailah, I think you're the one tackling this.

NAILAH RAMSOOMAIR: I am. And once again, we're going to turn back to our handy-dandy Condo Act. So there's three provisions in the act which basically talk about rules and compliance with the rules. So you have 17(3), which basically says, the corporation has a duty to take reasonable steps to ensure that the owners and occupiers and lessee's comply with the act, the declaration, the bylaw, and the rules. Then we move to 119 that says that as a unit owner, you have to comply with those governing documents, and that the corporation ultimately has a right for you to-- a right to require you to comply with those documents.

So the way that I would answer this question is that the corporation should go about enforcing compliance with rules in a very reasonable and balanced way. There's no point or any good of jumping the gun here and jumping straight to taking legal action when there's an infraction to a rule. In fact, what we would recommend, perhaps, is that management send a letter, maybe even a follow-up letter stating the infraction before jumping to any legal action or any drastic measures with the exception if the infraction or the behavior poses the risk of any harm or danger to those around.

ROD ESCAYOLA: Right. And that goes back to balancing the interests of everybody involved. And a lot of-- not a lot, but it has happened that courts have criticized corporations for having escalated too quickly a situation. In fact, I don't know if I can ask of that because you're speaking next, Graeme.

But you know what, if you have a moment, let's-- I don't know if you've noticed one of the cases that was presented today, somebody from another condo law firm read an excerpt. I don't know if you have the name of that case. But if so, we can maybe share it. Basically they're saying, listen, lawyers aren't just hired goons, and you got to balance the interests. Not everything is about docketable and fees. They weren't talking about us.

OK. The next question is going to be-- back to the calendar. Look at that, Nailah, that's you dancing. OK. The next question is going to be from Sheila in Ottawa, and she is asking this. Is it a breach of confidentiality if, as part of a records request, we disclose 46 pages, basically, of financial records, including the age receivable accounts, and also all sorts of line entries for the past nine months, and how much staff was paid, and the expenses that were claimed by staff, and so on, and so forth? So can we disclose all of that, or are we breaching the confidence, I guess? So, Graeme, you tackle this one.

GRAEME MACPHERSON: Yeah. So in general, I think a good starting point to live by when it comes to requests for records or information like this is try to be as much of an open book as possible. And, obviously, we're always going to have concerns about privacy, or what can we disclose and what can we not disclose. And that's why the Condominium Act already bakes in certain exceptions that are important to help protect those concerns.

So records relating to employees can't be disclosed except for contracts of employment, so that would include things like how much they're paid. I think when we see records relating to employees, it's the type of thing where we don't want everyone to have access to where all of the employees live or their personal information. Likewise, we can't give records related to specific units or owners, nor can we give records that are related to actual or contemplated litigation or insurance investigations. Likewise, any record covered by solicitor-client privilege would be covered as well.

Now, word to the wise, though, on the other hand, or the other side of the coin, I think corporations should be as open book as possible. But if owners are going to be requesting really lengthy, huge financial packages with tons of information going back years and years, this noncore record is going to take a little bit of elbow grease to put together, and there is going to be an associated cost with that.

So this is often a sticking point, and I think it's just important to make sure, as an owner, you're aware that there will be a cost associated, or if as a corporation you receive such a records request, letting the owner know as soon as possible that you're going to tabulate the costs, but there will be one just so everyone's on the same page. At the same time, that cost can be escalated if any of the records need to be redacted to protect any of the information I talked about. There may actually be a fee associated with that as well.

ROD ESCAYOLA: OK. Wonderful. Let me go back to my notes. Let's go back to the calendar. Let's see if the calendar, the box we open matches you. Oh, that's unfortunate.

GRAEME MACPHERSON: Oh, that's too bad.

ROD ESCAYOLA: That's too bad, eh? OK. So let's go to the next topic here, AGM minute retention. So this is a question from Laurie in Thunder Bay. Hello to Thunder Bay. One of the best restaurants I've ever had the pleasure to eat at is in Thunder Bay actually. I think it was called Caribou or something. It's got nothing to do with the animal. Well, at least, that's not what I ate. Anyways, moving on, the question is this from Laurie. Are the minutes supposed to show the vote for each motion, and what documents or information must be kept after the AGM? Oh, two in a row for you, Graeme.

GRAEME MACPHERSON: Yeah. Looks like it.

ROD ESCAYOLA: OK. Well, we're lucky to have you.

GRAEME MACPHERSON: So I think it's important to keep in mind that minutes of meetings aren't a script. They're not a verbatim transcript of what occurred. And if they were, then that's just what would be ordered, but they're not. They need to sufficiently allow the reader to understand what happened at the meeting, and what the rationales were.

So in my view, and I think in practice, most corporations when a motion takes place, it's usually fine to simply indicate in the minutes that the motion was carried if it passes. I don't think you need to be saying, we had this many for and this many against. And I think along a similar vein, when we do votes for directors, we often don't reveal what the voting numbers were at the meeting or in the minutes. That information is available, but it's not often in the minutes.

Now, something else you need to make sure of if you're going to be making decisions like this. Again, I know I say it all the time, but just check your bylaws, specifically your operating bylaw, that's going to be the one that deals with how votes are run, and how meetings are run because that may also weigh in on this. Now, it's also important to keep in mind that-- let's say we're at a meeting, and I'm your AGM chair, and we're trying to move through it, and let's approve the minutes from last year. Can I get a motion for this?

Someone, if there's any, particularly, condo law savvy owners in the crowd may put their hand up and say, well, actually, pursuant to the act, I'd like to request a recorded vote on this, and they are allowed to do so. Section 52(2) of the Condominium Act, which I've got out right here, it actually states that, at a meeting, any person entitled to vote can request that a recorded vote be described, that a recorded vote be held on any item scheduled for a vote either before or promptly after the vote.

So could someone put their hand up and request that a motion to, let's say, approve the minutes, something simple like that be done with a recorded vote? Yeah, they could. And I think probably in the spirit of democracy, the best thing to do is simply adapt to that and hold the recorded vote. And so this leads into the second part to that question of, well, how long do we need to retain everything?

And for your AGM minutes, you need to just retain them. Keep them. Put them in a folder, and keep them forever, for all time. There is no expiration date on that. For anything where there was a recorded vote with ballots, you need to keep them for, at least, 90 days after the vote. Does that mean you have to destroy them after that time? No, not necessarily. But just make sure-- especially if you have a new vote that you weren't thinking was going to be a recorded vote that becomes one, keep those ballots for 90 days.

ROD ESCAYOLA: Right. And, in fact, what you have to keep for 90 days are proxies and ballots, right?

GRAEME MACPHERSON: Yeah. Any voting instrument essentially.

ROD ESCAYOLA: Right, exactly. OK. Minimum 90 days. And that may be extended. It is, in fact, extended if there is a litigation or a request for records, and then there's an extension, a time frame there that's like--

GRAEME MACPHERSON: Yeah. It's not a good look if you hold a meeting, and someone challenges the vote, and then you say, well, it's been more than 90 days. [INAUDIBLE]

ROD ESCAYOLA: Yeah. Sorry, buddy. And, in fact, if you go to your favorite condo blog, hopefully this one, and you go in Condo Tools, you will be able to see that we have a retention. I think we do.

GRAEME MACPHERSON: It's at the bottom, yeah. Not that I was using it for this.

ROD ESCAYOLA: Nice. So there it is. It gives you an idea of what you have to keep for how long, OK? So that is a shameful plug. Let's go back now to this. Let's see if the next set calendar door matches Nailah. Let's go. Oh, OK, that's not too bad. A little swan. Let's move to the next question here. What goes in board minutes? So that's building a bit on the last question actually. So this is a question from Richard in Toronto, and the question is about the adequacy of board minutes.

He says he's been reviewing his condo director's meeting minutes. There's a number of items on the agenda, but the owners are not provided the agenda to inform them, and to inform them on what's being discussed. So, for instance, he says there's a consent agenda, and I guess they don't see the agenda, and monthly financials, but they don't see the financials. So that's the question. I mean, what has to be included in the board minutes?

NAILAH RAMSOOMAIR: Yeah. So I guess the act specifically says that it requires adequate records to be kept by the corporation. And so the CAT actually has decisions where they speak about what constitutes as an adequate set of minutes. So they essentially say that minutes need to have a high standard of accuracy in order to document the board's business transactions. So I think that policy of being an open book so that people can understand the transactions and the affairs of a corporation is really important.

And I think the ultimate goal that you'd want to strive for in your meeting minutes is essentially a document that has enough detail to allow owners to understand what's going on in the corporation, the decisions being made, when they're being made, and the financial basis for those decisions. And we actually have a very good blog on our Condo Adviser website that speaks just about this.

ROD ESCAYOLA: We do, eh? Not that you've used it to prepare for that.

NAILAH RAMSOOMAIR: Absolutely not. Absolutely Not.

ROD ESCAYOLA: OK, perfect. So something else also maybe to answer-- was it Bruce-- Richard's question was, what documents are to be attached to it? And I would say this that if the minutes refer to a document by reference, you may be entitled to those documents. But even if that wasn't the case, you're entitled to records of the corporation.

So maybe what you ask for is not just the minutes, but you could ask for the minutes, and you could ask for the agendas, and you could ask for financial records or whatever it is, right? So perhaps the starting point is you ask for the minutes, and then after that you see if you need anything else behind that. Anyway, it's not that I'm encouraging people to go on fishing expeditions, but that's something to keep in mind.

OK. Let's go, let's see what's behind this door number 6. Oh, another duck. OK. That's not very original. Next question is from Carter from London. Our condo board consists of five members-- oh, that's a good question. I like that one. Our condo board consists of five members, three of which are needed for quorum, yes. Recently, a motion was put forward in which two of the directors had to declare a conflict, and so they recused themselves and could not vote on the matter.

That left three remaining directors. Two of these voted in favor, one of these voted against, and I guess ultimately the question is this. If two people out of a five people board vote in favor of something, did they have quorum? Was that sufficient for the motion to pass? So we had five, two recused, three were left, two voted one way, is that sufficient for the motion to pass? Nailah.

NAILAH RAMSOOMAIR: Yeah. So to answer that question, the answer would be, yes. So the relevant provisions here you would look at are 32 and 34(2) of the Condo Act, which speak specifically to quorum, right? And it says that a quorum is the majority of the number of people on which the board consists of.

But even if there are vacancies at the meeting, and 34(2) is going to speak to that, the board can still exercise its powers as long as there's quorum. And that means-- so when it comes to a vote-- so as in your question, there'd be three people, the majority of the balance of directors will win that motion. So it doesn't matter that you're missing two. As long as the majority of the directors vote on it, then the motion will pass.

ROD ESCAYOLA: Right. Because quorum is three in this case, right? And so these people are able to vote on items, and it's the majority of these people, the majority of the quorum that matters. Yeah. One of the sub questions from Carter was whether or not Robert's Rules of Order did apply. And, I mean, there's all sorts of different procedural rulebooks that float out there. There's a Canadian equivalent to the Robert's Rules of Conduct.

At the end of the day, the board needs to find a way to function, right? And if you need to crack open Robert's Rule of Conduct, you're already losing part of the battle. But, I mean, the answer to this one was easy. The day has been saved because the answer is clear. It's a mathematical, you got three people left on the board.

And, in fact, there's an analogy or a-- I don't think you spoke of 34(2), did you? Oh, you did. You did, eh? OK. I was just going to repeat that. OK. Well, let's just keep moving. Somebody is trying to stretch the source here. So we're at the-- are we really at question 8?

GRAEME MACPHERSON: Yeah. We're flying. It is, in fact, a Christmas miracle.

ROD ESCAYOLA: This is a Christmas miracle, people. You may be able to go home early tonight. OK. So this is great. Let's move on. What do we got? Let's move on to this one. I don't know what that is, like, a Cheerio bowl or something? I don't know what that is.

GRAEME MACPHERSON: My future at the Olympics, perhaps?

NAILAH RAMSOOMAIR: No, it's the five golden rings.

ROD ESCAYOLA: Oh, wow.

GRAEME MACPHERSON: Oh, good thing you're here.

ROD ESCAYOLA: Yeah. So the next question--

GRAEME MACPHERSON: Wait a minute. Yeah, that's what all of these are.

NAILAH RAMSOOMAIR: Yeah.

GRAEME MACPHERSON: I promise I'm smart. I notice patterns.

ROD ESCAYOLA: Oh, look at that, eh? So by the end of this, maybe Nailah will give us a rendition of the five golden rings. OK. So next question, 9, is a question from Dennis from Stoney Creek. Oh yeah, that's a good one. The fire department conducted a fire alarm audible test in our building, and it was determined that, I guess, their hallway alarms did not meet the 60 dB test.

And so the fire department issued an inspection order, and the corporation had to comply. And as part of what they had to do, they decided that they would extend the building alarm into the suites by adding a fire bell into each suite. OK. The question is not about the fire code, thankfully. The question is this, can this work in the unit be done with reserve fund money? Graeme.

GRAEME MACPHERSON: Even if this question isn't specifically about the fire code, I think it still applies. And whether we're talking about we have to extend something into the units, or we have to do something to-- we have to build something or add something to comply with the fire code or the building code or something, can we use the reserve fund for that?

It feels, maybe initially as a gut reaction, like we can, but, in fact, I don't think we can. We have to be quite careful when we rely on the reserve fund. The act is very clear that it can be used, quote, "solely" for the purpose of major repair and replacements of the commone elements and assets of the corporation. So that's all you can use the reserve fund for. There's really no wiggle room around that. So where does that leave you in a situation like this one?

Well, there's a couple of options. Option 1 is the operating fund. Depending on the scope of the project we're talking about, we may not be that liquid at the moment. So operating fund is probably going to be for the smaller-scale stuff. Other options are to borrow funds or levy a special assessment.

Now, borrowing funds is definitely a good option, but you need to be careful maybe not to put all of your eggs in the borrowing basket. Because in order to borrow funds as a condominium, you need to pass a bylaw. And in order to pass a bylaw, we need 50% of all unit owners to vote in favor of-- of all units to vote in favor of that bylaw.

And so most corporations can sometimes struggle to even get quorum at a meeting of 25%, let alone passing a bylaw with 50%. So you don't want to just assume you're going to get that passed. And so that's why usually what we tend to see is a mix of borrowing bylaws and special assessments occurring. Because relying on the borrowing bylaw alone can be a little risky, especially if you need the cash quickly.

Now, I think it's important to note that the very restrictive section of the Condominium Act that I've just read is going to be expanded. When? I don't know. None of us know. We all hope soon. But it's going to expand Section 93 to allow several more uses for your reserve fund. And those uses are going to be for major repairs of units, the common elements or assets, if the corporation has an obligation to repair them, so that definitely expands the scope.

And in addition to that, you can use the reserve fund for the purpose of complying with acts or regulations made under them, like the fire code or the building code. So that's going to allow a lot more flexibility for the reserve fund. It will be interesting to see what that does for reserve fund planning, but until we get there, it remains grayed out in the Condominium Act. And, again, for those who don't know, if you're ever, in your free time, looking through any act, including the Condominium Act, if you see that some of the text isn't grayed out boxes, that means it's a plan for the future, but it's not in place yet.

ROD ESCAYOLA: OK. Wonderful. Let's see what's in the next one. The four something, the four birds here. So next question is, who pays for the ramp? So that's a question from Sandra in Ottawa. Hello, Sandra. We are at townhouse type of condo, where each unit has its own entry with steps. This is important.

We have an owner with a mobility challenge that wishes to install a ramp to their entrance. Our legal team-- maybe not us-- has advised us that the corporation is not obligated to pay for this. Clearly not us. It is my understanding that according to the Disability Act and the Human Rights Code of Ontario, the corporation is obligated as long as the resident demonstrates a disability. What is the correct answer, Nailah?

NAILAH RAMSOOMAIR: OK. So first of all, Rod, that's four turtledoves.

ROD ESCAYOLA: Somebody is googling this.

NAILAH RAMSOOMAIR: I'm not. I know the song. But to answer this question about accommodations and ramps, so this is really complicated, and it's very fact-specific, meaning it's really going to depend on the specific facts and circumstances of each case. What I would recommend is that on our Condo Adviser website, if you click Condo Tools, we have a pamphlet that speaks about the corporation's duty to accommodate disabilities. I think Rod may pull that up now. It's a really good resource. It has a lot of information on, for example, what is--

ROD ESCAYOLA: So condo tools?

NAILAH RAMSOOMAIR: Condo tools, yeah.

ROD ESCAYOLA: And then Duty to Accommodate Infor Sheet. Oh, look at that.

NAILAH RAMSOOMAIR: Yeah. So it has all this information on, for example, what is a disability, the relevant provisions that are important. It specifies what is undue hardship. So undue hardship would be health and safety concerns, costs, effects on the right of other owners. Because you'll see that sometimes corporations will allege undue hardship to not accommodate that disability. So those are the types of things that they would be arguing there to fall under undue hardship.

I would say we look at the case law, but the case law isn't actually very helpful here either. There's two key decisions, they're both from the Human Rights Tribunal of Ontario, and they both come to completely different conclusions here. So I have all the facts on the screen here because I think it's important just to understand the factual circumstances in each case.

So the first one is McMillan v. Bruce Condominium Corporation. So the applicant here lives in a condominium unit. So it's freestanding, it's a detached dwelling, and both the front and the rear entrances are exclusive use common elements. So what the applicant wants here is for the corporation to install handrails on the front and rear steps of the unit because of mobility issues. So health reasons, decreasing mobility. The board here confirmed the approval, so those railings could be installed, but that it would be at the expense of the applicants. The corporation wouldn't be liable for paying for that installation.

And the tribunal ultimately found that the corporation is, in fact, not responsible for these areas defined as common elements that fall within a unit owner's exclusive unit. And so because of that, the corporation wasn't liable and the applicant had to bear the expense. But the board did approve it because they did recognize that it was an accommodation that was needed. The issue was that it's because it was within that exclusive realm of the owner's unit that the corporation wouldn't be liable to bear the cost of that.

But then if we look at another decision, which is the DiSalvo decision, again, another 2009 Human Rights Tribunal decision. And this one, the applicant, again, resides in a townhouse. Has a medical impairment, so muscular dystrophy, so they can't safely enter and exit their home. So they wrote to the corporation, and they wanted a ramp to access the front door of their townhouse so that they'd be able to go in and go out safely. All the parties here agreed that the front entrance, the step, the landing, the walkway, and the curb of the condominium units were considered common elements.

Here, the corporation attempted to argue that if they were to provide this ramp or install this ramp, that it would only be to the exclusive benefit of this unit owner and their wife. As in, no one else would be using this. But the tribunal ultimately found that because this was an accommodation based on a disability, that the corporation should be liable and should assume all the costs for the ramp, including the installation, the upkeep, and the storage. So there you see two similar situations where the tribunal arrived at two different conclusions, so that's why we say that it's really fact-specific.

ROD ESCAYOLA: And that's why AI will not be replacing lawyers anytime soon. There it is. OK, fantastic. Let's move on. Nailah, number 3 there you have-- what is that, a hen?

NAILAH RAMSOOMAIR: The French hen.

ROD ESCAYOLA: OK. The French hen. OK. Moving on then, let's go to the next question. Who pays for the ramp? We covered that. Who pays for water damage? So this is a question from Justina in Toronto. We have a unit directly above our condo office-- did we not talk about this already-- and it leaked into the unit. We investigated the source, the bathroom was in poor state of repair. Did I not read this already?

GRAEME MACPHERSON: We did. But we answered a different question about it.

ROD ESCAYOLA: Oh, OK. Well, so now the question is-- what is the question here? ooh, who pays for it? Yeah. Last time was can we force the person to repair the unit, and in this case the question is, who pays for the damage in the unit below? Is that it there, Graeme?

GRAEME MACPHERSON: Yeah.

ROD ESCAYOLA: OK, perfect. Let's go.

GRAEME MACPHERSON: So in all caps, lawyer answer incoming, I'm sorry, everyone, but the answer is fully, it depends. There is no one-size-fits-all answer for questions like this. And we get the question of who pays for this water damage probably more than we get any other question, and it could itself be an entire webinar alone. So I'm not going to go into a great level of detail on this, but what I am going to do is go through the items that you're going to want to consider, in the order you're going to want to consider them when you are faced with the question of if something's happened, who pays for it.

The starting point is Section 89 of the Condominium Act, which tells us that the default setting is that the condo is responsible for repairing the units and the common elements after damage. However, the act goes on to say at Section 91 that your declaration can alter that obligation, and it can put the onus for these types of repairs onto the unit owner instead. And so that's why your next stop is going to be your declaration.

This is going to tell you a bunch of information, including, what has been-- is what's been damaged part of the unit or part of the common elements? Was the source of the damage from within a unit or from the common elements? These factors are going to be laid out in your declaration because it defines what's unit and what's common element. Your declaration is also going to set out the circumstances under which an owner may be responsible to repair, or be responsible for repairs to other units, or when the corporation is.

Then when we go on, the insurance deductible bylaw and the standard unit bylaw, if you have them, may inform how much the owner versus the corporation is required to pay. Insurance deductible bylaws can be a tool that corporations can use, where even if they would be required to pay something depending on the circumstances of how the incident that caused the damage occurred, whose fault it was, or where it came from, then it may be that you can charge the corporation's insurance deductible to the particular owner.

And likewise, the standard unit bylaw is a bylaw that a lot of corporations have that sets up, in circumstances where the corporation may be required to repair a unit, what part of the unit is it required to repair. If in Rod's unit his life-sized golden statue of me gets damaged, well, the other owners probably aren't going to want to pay for that magnificent piece of art that no doubt costed up hundreds of thousands of dollars, and that's because that wouldn't be part of the standard unit. It's an improvement to the unit, if you ask me. But the standard unit, it defines what the baseline standard level of repairs that the corporation is required to repair and insure.

So a lot of information I just threw at you, a lot of reading I just assigned to you, but, again, there is no one-size-fits-all answer to this. It entirely depends on the circumstances of what happened, and what your governing documents say. It can be a lot to chew on, so if you get-- if there's ever any confusion or any doubt about this, talk to your lawyer about it.

ROD ESCAYOLA: Wonderful. That is, in fact, our most read blog post, who pays for water damage? It's the blog post that keeps on giving. OK. And now for the last one, I guess it's something in a pear tree.

NAILAH RAMSOOMAIR: Partridge.

ROD ESCAYOLA: In a pear tree. There it is. Nailah, you get the last question. Oh, I need to read the question first. How do you define a single family residence? And this question comes from Sophia in Toronto.

NAILAH RAMSOOMAIR: So to answer that, the first place to look at would be to look at your declaration. Because in your declaration, they'll most likely say that the use of the unit is limited to a single family, and then following that, they'll either define what a single family is, or it may be located in your rules. So check to make sure whether it's defined in either of those places.

And if there's not-- so I've cited a case here, it's the Menzies case from 2016. And this case essentially dealt with, what happens when single family is not defined in your government documents. And the court essentially says that a single family is a social unit consisting of parents and their children, whether natural or adopted, and includes other relatives if living with the primary group. So that is what the court has defined single family as in the absence of a definition in your governing documents.

ROD ESCAYOLA: OK. Wonderful. But you could define it in your rules, right? There it is. There's the partridge in a pear tree. Perfect. So this is what I propose we do with the time that we have left. We'll ask Nailah to sing the 12 Days of Christmas. No, no, just kidding. Gather around people, come close to the fireplace, I will share with you a Christmas story, if I may.

That's the story of the Landau versus MTCC 757 case, also known as the case of the Grinch that Stole Christmas, so let's talk about that. The facts are very simple. It's December 2017, and, well, you guessed it, Santa Claus is coming to town. And so people at this condo corporation, well, at least, the people on Santa's good list decided that they would decorate the common areas. And so this case is going to be about whether or not a condo corp can decorate condo areas, common areas around the Christmas or the holiday season, right?

And so in that specific case, they installed white lights on evergreen hedges outside the building. They installed white lights on artificial plants in the lobby. They added red poinsettia in the lobby as well. And the board even went to send-- sent around a note soliciting funds for the thank you fund for the staff. Because the note said, the holiday season is fast approaching. So, I mean, everybody is really in the Christmas spirit at that point in time.

Now, the invitation to give funds to the thank you fund included an image of candy canes and a mouse, or maybe a bear, it's not very clear, but what's clear is that it had a Santa hat on. Now, one of the owners, we'll call her the Grinch, was not very pleased with this joyful display and argued that the trees, and the lights, and the poinsettia, and the candy canes, and the Santa hat were hardcore Christian religious symbols and left her to feel like a second class citizen.

Now, the owner, and this is the interesting part, conceded that other religious holidays had been acknowledged by the corporation over the year, but felt that this one, the Christmas one, had an extra level of prominence. And so she basically complained that the Christmas post was on the bulletin board for eight full days, of course, leaving me to wonder what happened to the rest of the 12 Days of Christmas. Cue, Nailah, sing the song. No, just kidding.

So she brought an application to the Human Rights Tribunal alleging discrimination. And for those of you who want to read the long history of Christmas past, present, and yet to come, you can download the case, we have a blog post about it actually. And so now, what's important to see when you read that case is you will see how this corporation went from a nondenominational corporation to a corporation with Christmas trees, and happy holidays signs, and where the board was flaunting candy canes and mice or bears with a Santa hat on.

Now, when you read this, you will see it. Because some of you may be a bit worried, maybe your condo corporation is on that very slippery slope of conversion. And so do know that this is very sneaky, the Christmas spirit creeps up on you in a very sneaky way. This is not the Saint Paul on his way to Damascus kind of conversion. This is really a more insidious slippery slope where condo owners are being groomed into happy, joyful people for a short period of time of the year.

Now, this owner objected to lights being placed on Christmas trees, that is the coniferous one, but was OK with the same lights being put on deciduous trees. She was OK with the yellow poinsettia, but was not OK with the red one, right? And the Christmas holiday fund was not a proper fund, but the thank you fund at the same time of the year was proper. Now, when you look at that, you realize that the true issue here is that the Grinch, his heart was two sizes too small. That was the issue.

And so moving on now to the legal test, because there is a legal test. And the legal test is this, the Human Rights Code provides that everybody is entitled to equal treatment, and that no one shall be discriminated upon under one of the prohibited grounds, including creed. Now, for this Grinch to win the case, they need to demonstrate that they suffer from a disadvantage or an adverse impact. And so this is where the Human Rights Commission comes in because their job is going to be to determine whether the Christmas decorations are religious symbols, or whether the Christmas decorations are more of a secular holiday type of decorations.

Now, believe it or not, the Human Rights Commission deplored the fact that an expert report had not been filed. That there was no expert evidence to help us understand what Christmas decoration constitutes a Christmas symbol, and which one constitutes as a commercial money grab, right? And, I mean, to the corporation's defense, they really did try to get an expert. They subpoenaed the man in the red suit, but he was busy spreading glee and joy around the world at that point in time, so he really couldn't make it to the hearing.

Now, without that evidence, then, the Human Rights Commission looked at the various cases that applied to try to determine whether, for instance, a poinsettia is a Christian symbol, or whether it's not. And they referred to the Jones case, where and employee-- that was an employment case where an employee refused to display red poinsettia. But the funny part is that, in this case, he didn't refuse it on-- well, he did on the basis of his religious belief, but not because he thought that that plant was a Christian symbol. But he felt that plant was too pagan for his own belief, and he felt that that went against his own views of the world.

So one of the most important argument that this person brought forward was the question of the prominence given to Christmas over the other holidays. And in this case, she argued that the corporation had to pick between either acknowledging every single holiday, or acknowledging no holiday. They couldn't go between the two.

The problem with that is that I myself counted 56 holidays in November and December alone. In fact, 57 if you include the Sol Invictus holiday, which is the celebration of being unconquered by superstitious spiritual beliefs. Although it's not quite clear to me what kind of celebration, or greeting, or symbols are traditionally exchanged between the proponents of the celebration. Probably none, that's the whole point of it.

Now, the owner also-- and it's true, the owner complained about the fact that there was a sign posted in the lobby that wished residents a happy holiday weekend. Now, that assumed that, in fact, people were celebrating that weekend, and that people wanted to get a happy weekend. I guess some people are entitled not to have a happy weekend, and how dare we impose that on them?

Now, the tribunal didn't agree with these complaints, and at the end of the day, the tribunal concluded that there was no evidence showing that a single holiday had been discriminated against or turned down, and they concluded that they were both treated equally, and so there was no actual discrimination. So, folks, how do you stay on the nice list this year? If there's going to be a discussion at your board or at the community level discussing what kind of declarations to implement, how do you avoid upsetting the condo Grinch?

And so you have to keep in mind that the landscape, the building, the lobby, the party room, those are common elements. They're not your private area, right? And so while there's nothing wrong with some decorations around the Christmas holidays, have a little restraint, and have a little inclusiveness. That's going to go a long way if you're going to decorate and deck the halls.

There's nothing wrong with festive lights. There's nothing wrong with poinsettia. And by the way, I don't discriminate based on color. You can pick whatever color you want. There's nothing wrong with tinsel. And, in fact, some condo corporations have the tradition of installing a full-blown Christmas tree. But don't sour the eggnog, right? Be inclusive. Be respectful. Maybe add to the decoration, and add to the celebration rather than remove from it, right? I think that's probably the way to go about it.

Now, much to the chagrin of my very traditional Christian heart, you may want to steer away from ostentatiously displaying baby Jesus, and Mary, and the three wise men or wise women, if you want, in your front lobby. It all depends what you're used to, I guess. But if you're going to put a Christmas star or the Bethlehem star, just call it the Halley's Comet star. I think that's going to avoid upsetting anybody.

So here you go. Here you have it, folks. That's the end of our webinar. That's the end of our year with you. Thank you for sticking around. Let there be peace and joy around the world. We really, really need this. And let's all celebrate this winter equinox in a very inclusive way. So I'm going to go around the table to Graeme and Nailah to see if you have any sort of parting words to share with our viewers before we move on. Nailah, any Christmas wishes or holiday wishes?

NAILAH RAMSOOMAIR: Just for everyone to have a great, healthy, and peaceful holiday.

ROD ESCAYOLA: Graeme.

GRAEME MACPHERSON: Yeah. I would just echo that December can be a stressful time of year. We're getting towards the end of the calendar. So really try and-- I hope you all do get some time towards the end of December to really just unwind, relax, be with family and friends, and have a little well-deserved you time.

ROD ESCAYOLA: OK. Wonderful. Perfect. So we're going to take a break in January, and we're going to come back on February 7, which is the first-- how is that even possible? Is February 7 the first Wednesday of the month? I'll just trust my assistant on that one. Yes, it is. And we'll post the information on the Condo Adviser. You'll need to register again. It's going to be-- you just need to tap on this tab here, and it'll give you the information about it.

If you have any suggestion of the kind of topic you would like us to cover, please send them our way. Always happy to hear from you. And that's it. My turn to wish you all a merry and happy holiday season. And merry Christmas to those celebrating it. Keep an eye out for our Christmas post. We're going to have a good one this year. In fact, I think Graeme is the one who drafted it. He forgot about it, but it is.

GRAEME MACPHERSON: Oh, yeah.

ROD ESCAYOLA: Yeah, right? OK. So there it is. That's it, folks. Have a great evening, have a great holiday season, and see you in February.

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Oh, boy. There we go. I tried to correct the date.

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So ignore the date on the screen. It's not December 6, the next one is February 7. Take care, everybody. Good night.

GRAEME MACPHERSON: Bye, everyone.

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