ACMO Burlington Conference – A Quick Reflection

Legal Update

I recently had the pleasure of participating at the ACMO Burlington Conference. My congratulations to ACMO on a well-structured and informative day. The day started with representatives from each of the Condominium Authority of Ontario (CAO) and the Condominium Management Regulatory Authority of Ontario (CMRAO) bringing everyone up-to-date on the implementation of both of these newly formed organizations. During the course of the round table discussions, I had the opportunity to discuss “Aging in Place”, which continues to be a meaningful and multidimensional discussion. We covered a gamut of topics, from shifting the paradigm around aging to managing aging assets. I was delighted with the willingness to see mobility concerns as an issue that affects all ages, and the thoughtfulness at the table around capital asset replacement that takes accessibility into design. Creative dialogues on how to inform community members of local resources also helped our analysis on how to manage risk and divert risk away from condominiums, which have a very definitive scope of responsibility under the Condominium Act, 1998.

I also had the honour of speaking on the Legal Update panel with Rob Mullin of Smith Valeriote Law and Chris Jaglowitz of Gardiner Miller Arnold LLP on a range of legal decisions which impact condominiums. A very interesting New York case on the disclosure of directors’ emails was presented by Rob, which had the panel wondering how to keep the emails privileged. While Ontario is different from New York, I think that it may be wise to invoke confidentiality when emailing as a director. The author of “ The Board Room: Why those confidential emails may end up in court anyway ” had some good suggestions to try and preserve the free dialogue of board members, via the creation of separate email addresses for discussion purposes. The challenge for condominiums is balancing the need for transparent and complete record-keeping with the need to communicate efficiently with property management. Under the Condominium Act, 1998, the further issues of what constitutes a “record” of the corporation under the amended Section 55, and how the corporation must retain those records, must also be considered. From my perspective, it may be wise to invoke the position from the beginning of an email strand that “ The following email is made in contemplation of litigation and is therefore privileged and confidential ” if the writer believes that the email may be subject to litigation in the future. Although there is no such thing as invoking “magic words” in the law which would automatically blanket the email strand with confidentiality or litigation privilege, at least such a written statement would create further evidence that the writer intended his/her email to be confidential, which may help suggest same to a reviewing court.

In the course of my discussion, I focused further on communication and on caselaw which impacts how condominiums must manage communication more thoughtfully in this brave new age of online communication. In Pritchard v Van Nes, 2016 BCSC 686, we have seen the growth of defamation responsibility from being limited to the initial writings of the defamer himself/herself, to an expanded responsibility for other people’s Facebook comments that emanate from the original post. Please see Kati Aubin’s article for additional information about this case. More and more, it is important that boards, unit owners, and service providers embrace good communication – and not just communication for the sake of communication. What an informative day in Burlington!

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

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