Bill 106 (Protecting Condominium Owners Act, 2015) was introduced for first reading in the provincial legislature in May 2015 and ultimately received Royal Assent in December 2015. However, Bill 106’s changes to the Condominium Act, 1998 (the “Act”) have not yet been proclaimed into force, presumably in large degree to the fact that regulations under the Act have not been finalized.
As anyone who has read through the Act will see, much of the substantive content in the provisions will actually be found in the regulations (look for ‘prescribed’ requirements – that’s a reference to regulations). Regulations, even in draft, have not been released. Accordingly, analysing portions of the Act without the regulations is futile at worst and frustrating at best.
There may be a light at the end of the tunnel. In September 2016, it was reported that Premier Kathleen Wynn delivered a directive to Ministers, including a goal that ‘key elements’ of Bill 106 to be implemented by the fall of 2017. Does this mean that circulation of regulations is imminent? Hopefully that is the case, and in anticipation of seeing those regulations, here is a Top Ten list of regulations which could have a significant impact upon the operation of the Act.
- Standard Unit
Where a condominium has not passed a Standard Unit By-law, and subject to the regulations, the regulations are to prescribe a form of standard unit. What will the content of such a standard unit be? Will it be suitable for all condominiums, or will there be various versions? Should condominiums currently considering enacting a Standard Unit By-law wait to see the content of such regulation and/or wait for the Act to be proclaimed into force?
- Chargebacks
The regulations will prescribe which types of ‘chargebacks’ (additions to common expenses) will invoke a procedure for objection by the unit owner. The procedures will also be governed in various aspects by regulations.
- Requisition Meetings
The regulations may specify additional purposes for which an owners’ meeting may be requisitioned, beyond those named in the Act.
The requisition itself must be in a form governed by regulations and include the information required by the regulations. Currently, there is no prescribed form.
- Borrowing
Corporations will need to enact a by-law to authorize a specific borrowing under the Act, unless the regulations provide otherwise.
This is a substantial issue left to the regulations, potentially providing exceptions to the borrowing by-law requirement.
- Records Requests
The regulations may specify:
- the process by which an owner makes a request for records;
- the process by which the condominium responds;
- fees relating to examination and copying of records; AND/OR
- request forms.
Clearly, a potential ‘game-changer’ for handling records requests if implemented, as opposed to the limited guidance on such issues in the Act itself.
- Procurement Process
The regulations shall define which contracts and transactions entered into by condominiums must be governed by a procurement process. Furthermore, the regulations will define the applicable procurement process. Not much detail in the Act itself here, and the regulations alone will essentially govern this process.
- ‘Deemed’ Provisions
The regulations may also specify provisions that are deemed to be included in declarations or descriptions registered before May 5, 2001. Similarly, regulations may set out provisions that are deemed to be included in the Declaration, By-laws or Rules unless amended or repealed in accordance with the Act. Such regulations could have profound effect upon the existing documents of condominiums.
- By-laws
A majority of all owners must approve a by-law in order for it to be enacted, or such other number of owners as the regulations may require.
Will there be differing thresholds for differing sizes of buildings potentially? That makes some sense and it will be interesting to see how this is handled in the regulations, if such regulation is made.
- Reserve Fund Adequacy
The regulations are to ‘determine’ the ‘adequacy’ of a Reserve Fund. This is a long awaited response to the common problem of whether a Reserve Fund funding plan is in fact ‘adequate’. For example, must ongoing projected contributions to the Reserve Fund be limited to inflationary increases only in order to be ‘adequate’?
- Condominium Authority / Tribunal
One of the central changes in Bill 106 is the creation of the proposed Condominium Authority, which would then in turn appoint members of the Condominium Authority Tribunal. However, even the existence of the Tribunal is subject to having a regulation to create same.
Furthermore, it is unclear which disputes may proceed to the Tribunal, as these are also to be determined for the most part by regulation.
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