Condo Reporter - Timely Commentaries on the Latest Developments in Condominium Law in Ontario

Another follow-up to our previous posts on “Owners Requests for Records”.  As we previously posted, the Court agreed to vary its original order that the Corporation provide access to Mr.Lahrkamp to proxies and ballots by permitting the Corporation to redact references to owners and unit numbers. Mr. Lahrkamp appealed the variation and sought to reinstate the original order. 

The Superior Court of Justice Divisional Court determined that the Small Claims Court did have the jurisdiction to clarify and vary the original order. There was no basis for the appeal of the clarification order, as this was just a procedural matter  to clarify the original order, which was not appealed. 

This case once again confirms that an owner’s right to view records of the Corporation must be balanced with the privacy rights of other owners.

A recent case before the Ontario Court of Appeal dealing with the privacy of a Bank customer's personal information, may have some interesting applications for condominium corporations and property managers across Canada.

This decision has now established a new common law tort of invasion of privacy where the cause of action is called "intrusion upon seclusion." Jones v. Tsige, 2012 ONCA 32  involves a customer of the Bank of Montreal, Sandra Jones, who sued the bank's employee, Winnie Tsige, who had improperly accessed Ms. Jones’ banking records in order to determine the amount of child support payments that Ms. Jones was receiving.  The reason for Ms. Tsige's investigation into Ms. Jones’ records, was that Ms. Tsige was having a dispute with her common law spouse, who happened to be Ms. Jones’ ex-husband.

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The radio stations are playing Christmas music and the stores are decked out for the holidays. Now that the holiday season is upon us, condo owners should be checking their condominium documents before putting holiday decorations on the outside of their units. The outside of the entrance door to the units, the balconies and the exterior windows, verandas and front lawns of townhouse units generally do not form part of the unit, but are part of the common elements of the condominium. Most condominium corporations have rules in place that either prohibit or restrict owners from affixing any type of decoration or installation on the common elements. Rules relating to holiday decorations may contain provisions such as the following:

• A prohibition on affixing wreaths and other decorations on the outside of unit doors in high-rise buildings. These wreaths are frequently made with materials that would fill the condo corridor with toxic gases in the event of a fire.
• All outdoor lighting must be CSA-approved lighting that is specifically designated for outdoor use.
• The period during which holiday decorations can be put up and the date by which they are to be taken down. Nobody wants Christmas decorations up at Valentine's Day or even later .

The rules of some high-rise condominiums may also prohibit the use of real Christmas trees. Not only can a dried out Christmas tree pose a fire hazard, but the common elements can be littered with needles as the tree is taken in and especially when taken out of the building. 

We suggest that condo corporations be proactive and communicate with residents at the beginning of the holiday season to remind them about the rules relating to holiday decorations.

When a journalist in Pattaya, Thailand recently found herself stuck in the elevator of her condominium, she decided to capture her experience on camera right up to the time that she was rescued by the elevator repair technician. This story was one of several stories involving condos that were featured on the website of Pattaya One News. We were somewhat flabbergasted at some of the other headlines on that website: "10-year old girl drowns at South Pattaya Condominium swimming pool" " 2-year old child's head stuck between 2 metal supports at South Pattaya Condominium" "Thai woman jumps to her death from South Pattaya 9th Floor condo".  It certainly seems that condominiums in Pattaya are dangerous places!

While it is unusual to see so many condo-related stories in the news at the same time, these headlines provide just a few examples of the types of unexpected occurrences that can happen in a condominium. This emphasizes the need for condo corporations to ensure that the common elements and facilities are safe and do not pose a risk to residents or their guests. In Ontario the condominium corporation is the deemed occupier of the common elements and is therefore subject to the provisions of the Occupiers' Liability Act. Under this Act the occupier is responsible for the condition of the property. If there is any inherently dangerous condition, which leads to damage or personal injury, the occupier may be liable. Thus if anyone falls as a result of ice on the sidewalk and is injured, the Corporation may have liability. If there is a pothole in the driveway, and a car is damaged by it, the Corporation may be liable.

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You may recall the case of a 41 year old stockbroker who was forced to sell her unit as a result of her violent, threatening and harmful conduct against property and against other owners. 

In another similar case, which was decided on April 13, 2011, the Court concluded that one of the owners had engaged in aggressive behaviour towards other unit owners, their guests, and management. The owner had previously been convicted and had served jail time for various criminal offences relating to his conduct towards other owners and visitors.

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A recent column in the Toronto Star focused on the problems facing a condominium corporation when a resident has dementia.

As many seniors are opting for condominium living, this will be a growing concern, particularly with the baby boomers rapidly aging. A resident with dementia could create situations that are dangerous not only to the resident, but also to the other residents in the condominium - for example, increased risk of fire or water damage, aggressive/violent behaviour to others, unsanitary conditions in the unit, etc. - this is not something that can be be ignored by the condominium corporation.

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CAI Law Reporter recently reported a case decision from Ohio, dealing with whether a condominium association assumed liability for a pool drowning because of the installation of video surveillance cameras in the pool area.

Laila Nader was a 73 year old resident in a large high rise building located in Cyahoga County, Ohio. She used the indoor pool daily and was an experienced swimmer.  The pool was regularly and properly maintained by the condominium association.

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Wood Burning Fireplaces in homes can often lead to high risk situations if not properly maintained and repaired.  Many fires have been caused by problems with the corrosion of chimneys, all because the owner was not aware of the hazards.

In high-rise and town home condominiums, the maintenance and repair of fireplaces and chimneys may be the joint responsibility of both the unit owner and the condominium corporation. It may only take one fireplace failure to cause a major fire in an entire complex with severe consequences.

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The month of September was an interesting month for decisions from the Office of the Information and Privacy Commissioner of Alberta relating to the release of personal information of condo and co-op owners .

The Co-op matter involved the actions of the board in disclosing a letter of complaint that a resident had written about another resident in the Co-Op. This was disclosed in the course of the director's investigation into the complaint. The information that was disclosed related to the complainent's health and his activities in the Co-op.

The Adjudicator found that the Co-Op should not have released the letter without the consent of the individual who wrote the letter and that there was no valid reason for releasing the letter without consent as part of the Co-Op's investigation into the original complaint.

The other matter related to a condominium board member who had a conversation with a resident which was overheard by the person who is alleged that her personal information was disclosed during that conversation. The board member told another resident that the complainant could not read her email properly.

Both these decisions are instructive in that they show that board members who are given the authority to carry out the business of running the corporation, should take great care in either making any verbal or written statements which disclose any information about a member or unit owner.

Board members should not be discussing any matters relating to individuals outside the boardroom where information can be overheard. In every instance, the privacy of the individual should be considered.

It is interesting to note that the Personal Information and Protection Act (PIPA) was referred to in each instance as applying to both Co-op's and Condominium Corporations. Condominium Corporations are governed by the Condominium Act which deals with the records of a Corporation and the confidentiality of certain information.  

In Ontario, we do not have PIPA but the Federal Legislation, Personal Information Protection and Electronics Act (PIPEDA). It may not have been the intention when PIPEDA was first introduced, to cover residential housing corporations and may be something that is raised in further decisions before the Office of the Information and Privacy Commissioner.

There may be time in which condominium corporations will be approached by the police and the board will be called upon to assist in some manner.

We were recently contacted by one of our clients to advise as to whether the board of directors and management should assist the police in carrying out an investigation of one of its residents.

Putting aside the moral and ethical considerations, boards of directors and property managers have the responsibility to ensure that they do not obstruct the police officers from carrying out their duties under the Criminal Code and, at the same time, ensuring that the condominium corporation's assets and common elements are maintained under the Condominium Act.

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