Condo Alert: Sheave Jammer Settlement Funds -- March 29th, 2013 Deadline

Posted by Admin on March 19, 2013
MARCH 2013
Sheave Jammer Settlement Funds — March 29th, 2013 Deadline

In 2006, the Technical Standards and Safety Authority (TSSA) ordered that all elevator sheave jammers manufactured or installed by ThyssenKrupp be replaced. Many Condominium Corporations were affected by this order and had to pay for the replacement of the sheave jammers.

As a result of the recent settlement of a class action lawsuit relating to these sheave jammers, Condominium Corporations may be eligible for a portion of the settlement
funds if:

(1) The sheave jammers were manufactured or installed by ThyssenKrupp;
(2) The replacement was carried out as a result of the July, 2006 Director’s Safety Order 207/06 issued by TSSA;
(3) The cost of the replacement was paid by the Corporation; and
(4) The Corporation did not opt out of the class action on or before May 31, 2012.

Claims must be filed on or before 5:00 p.m. March 29, 2013 elevatorclaim.ca.

Please contact us if you have any questions about this.

CONTACTS:
Denise Lash 416 360.3566 dlash@heenan.ca  
Barbara Holmes 416 643.6864 bholmes@heenan.ca  
Rod Escayola 613 236.3235 rescayola@heenan.ca  
      condoreporter.com  
 
The comments contained in Condo Alert provide general information only. They should not be regarded or relied upon as legal advice or opinions. © 2013, Heenan Blaikie LLP.

 
Heenan Blaikie LLP ■ Lawyers | Patent and Trade-mark Agents  heenanblaikie.com

Shawn Pulver featured in the Condo Voice Magazine

Posted by Admin on November 13, 2012

Shawn Pulver is a featured author in the fall 2012 edition of the Canadian Condominium Institute’s the Condo Voice magazine. In his article “Tarion Overhaul of Major Structural Defect Procedures”, Shawn discusses the significant changes made to Tarion’s structural defect claims process. These changes will affect all condominiums where the first arms-length agreement of purchase and sale was signed after July 1, 2012. Under the new regime Tarion has expanded the definition of major structural defects (“MSD”) by referring to three separate tests, and  has clarified the types of deficiencies excluded from MSD coverage.

 “It will be interesting to see how these changes affect condominium corporations, and whether the “three test” definition will give rise to more MSD claims being approved by Tarion.”

 You can read Shawn’s commentary beginning on page 33 of the Condo Voice magazine. For more information on obtaining a copy of the Condo Voice, please contact CCI at the link provided. 

Tarion Overhaul of Major Structural Defect Procedures

Posted by Shawn Pulver on July 17, 2012

Thumbnail image for Condo Building 2.jpgTarion has introduced significant changes to the major structural defect claims process. These changes will affect all condominium projects where the first arm’s length agreement of purchase and sale was signed after July 1, 2012. All of the changes are currently reflected in Regulation 992 to the Ontario New Home Warranties Plan Act, and summarized in Builder Bulletin 24 (revised). 

After consulting with the condominium industry for the past several years, Tarion has expanded the definition of “major structural defect ” (“MSD”) to provide further direction to owners, builders and condominium corporations as to which deficiencies do in fact constitute a MSD. 

The definition of MSD in the Regulations now refers to three separate “tests.” 

The “failure” test looks at whether the defects in work or materials would result in “failure of a structural load-bearing element of a building.” Tarion describes this as a “fairly stringent test that contemplates actual structural failure.”   

The “function” test looks at a structural load-bearing element and its function. Accordingly, any defect in work or materials that materially and adversely affects the ability of each structural load-bearing element of the building to carry, bear and resist applicable structural loads for the usual and ordinary service life of such element will be a MSD. 

The “use” test was referenced in the previous definition of MSD, although the current language has been revised. In order to constitute a MSD, the “use test” requires that a “significant portion of the home (or common elements) is materially or adversely affected.” The use test is an objective standard which looks at the usual and ordinary purposes of a residential dwelling. Accordingly, in the condominium context, if a load bearing related deficiency significantly affects the use of a common element lobby, then presumably Tarion would constitute this as a MSD.

As was the case under the previous procedure, an MSD claim has to be advanced by a condominium corporation within 7 years of registration.  The major difference is that if the deficiency does constitute a MSD under the new definition, the builder now has an opportunity to either take full responsibility for the MSD, or reimburse Tarion an amount referred to as a “co-share payment.”

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Condominium Owners' Right to Sue Developer for Common Element Deficiencies

Posted by Keir Wilmut on June 26, 2012

Section 23(1) of the Condominium Act (the “Act”) empowers a condominium corporation to sue on its own behalf and on behalf of all unit owners in respect of damage to the common elements. In the case of 1420041 Ontario Inc. v. 1 King West Inc., the Ontario Court of Appeal considered whether that section bars individual unit owners from bringing a lawsuit relating to the condominium’s common elements.

Gavel and Papers.jpgDuring construction of the condominium, the unit owner purchased a number of units from the developer. Four of the units were to be used as the unit owner’s head office, and were built with unique exterior doors, windows, and walls (the “Custom Finishes”). The Custom Finishes formed part of the common elements. After the building was constructed, the unit owner claimed that the Custom Finishes, along with the building’s HVAC system (which also formed part of the condominium’s common elements), were inadequate for the unit owner’s proposed use as a head office. The unit owner sued the developer for specific performance of its agreement with respect to the Custom Finishes.

Meanwhile, other problems had arisen with the condominium’s other common elements and the condominium corporation commenced an action on behalf of itself and all the individual unit owners for common element and construction deficiencies. While unit owners were given the option of opting out of the lawsuit commenced by the condo corporation if they wished to pursue their own action for damages to their units, the owner of the four units did not do so.

The developer took the position that the unit owner’s lawsuit duplicated the condominium’s lawsuit and brought a motion to have the unit owner’s action stayed. 

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Building Code Amendment to Address Balcony Glass Safety

Posted by Barbara Holmes on June 21, 2012

Thumbnail image for Condo towers ottawaIn previous posts we blogged about falling balcony glass in a number of Toronto condos and the resulting class action lawsuits. The Ontario government announced today that an amendment has been made to the Ontario Building Code relating to the design and installation of glass balcony guards. The new prescribed types of glass are less likely to break due to force or temperature variances. The amendment will apply to buildings for which a building permit is issued on or after July 1, 2012. 

The amended requirements are based on recommendations made by the Expert Advisory Panel on Glass Panels, which the provincial government established after the incidents of falling glass started to occur. The Expert Advisory Panel was composed of 25 members from various stakeholder organizations, including engineering consultants, building code consultants, developers, contractors, designers, building inspectors, municipal officials, the insurance sector and codes and standards writing bodies. Further amendments to the Building Code may be forthcoming once the Canadian Standards Association develops a national technical standard for glass panels in balcony guards, which is expected to be released within 24 to 36 months. 

 

Class Action Lawsuits Against Condo Developers

Posted by Barbara Holmes on March 14, 2012

Last August we blogged about several incidents of breaking glass on balcony railings in some downtown Toronto condos. As a result of those incidents two class actions have been commenced against the developers and the declarant of the Murano Towers and the Festival Towers. The architects as well as the manufacturer/installer of the glass railings were also sued.Thumbnail image for Gavel Shot.jpg 

As set out in the claims, after several incidents of falling glass in or around August, 2011, the doors to the balconies were sealed from the outside so that they could not be opened from inside the unit and a notice was posted on the balconies prohibiting access to the balconies. Each lawsuit is claiming $15,000,000 in general damages (plus another $4,000,000 for punitive damages and $1,000,000 for costs) on behalf of the owners and tenants of units in the buildings who were deprived of the loss and enjoyment of the balconies. In addition, the claims also allege that the unit owners suffered diminished loss in value and in rental income of their units. 

Generally balconies do not form part of the unit, but are exclusive use common elements. We haven't checked  the declarations of these condominiums but wonder if there is anything in them that permits access to the common elements to be temporarily denied for the purposes of maintenance and repair or to prevent personal injury or damage to property. Would this affect these claims? Also, in view of the realities of the Canadian winter how much use and enjoyment of the balconies does a unit owner get during the winter months? It will be interesting to see what transpires with these two class action suits.

 

Condos in Financial Crisis

Posted by Denise Lash on May 23, 2011

condo balconies.JPGOver the past few years, more and more condominium associations in the U.S. have had to deal with issues that most have never had to face before; owners walking away from their condominium units due to the economic downturn and associations unable to meet their operating expenses because maintenance fees have not been paid by the owners.

Fortunately in Canada, condominium corporations have rarely had to face similar circumstances.  Although owners may fall into arrears from time to time, most condominium corporations are able to secure the payment of those expenses by lien and have those arrears either paid by a mortgagee or the owner. The collection process enables the condominium corporation to collect arrears and pay the operating expenses to properly maintain the property.

 

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Developer Lawsuit Prevents Sale

Posted by Denise Lash on March 28, 2011

Living room of condo.JPGIn the first few years of a newly created condominium corporation the owner elected board will try to resolve issues dealing with building deficiencies, the developer's warranties and representations made in disclosure statements by the developer. In certain instances, a board may decide that commencing an action against the developer is the most effective way to resolve a dispute. 

Once the claim has been issued, the condominium corporation must provide details as to the claim on any status certificate requested by a prospective purchaser.

Depending upon the nature of the claim, this could have an impact on any owner wishing to sell their unit during the period that the claim remains in existence.

 

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